Case No. 15/05
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF ITEM 1.2 OF THE DURATION OF THE
ADDITIONAL ANNUAL LEAVE AND THE CONDITIONS AND
PROCEDURE FOR GRANTING IT APPROVED BY RESOLUTION OF
THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO. 497
"ON APPROVING THE DURATION OF THE ADDITIONAL ANNUAL
LEAVE AND THE CONDITIONS AND PROCEDURE FOR GRANTING
IT" OF 22 APRIL 2003 WITH ITEM 4 OF PARAGRAPH 1 OF
ARTICLE 30 OF THE LABOUR CODE OF THE REPUBLIC OF
LITHUANIA
7 December 2007
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas
Sinkevičius, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the presence of the representative of the Government of
the Republic of Lithuania, the party concerned, who was Rūta
Juršaitė, chief specialist of the Labour Relations and
Remuneration Division of the Ministry of Social Security and
Labour of the Republic of Lithuania;
pursuant to Articles 102 and 105 of the Constitution of the
Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its public
hearing on 6 December 2007 heard case No. 15/05 subsequent to the
petition of the Panevėžys Regional Administrative Court, the
petitioner, requesting to investigate, whether Item 1.2 of the
Duration of the Additional Annual Leave and the Conditions and
Procedure for Granting It approved by Resolution of the
Government of the Republic of Lithuania No. 497 "On Approving the
Duration of the Additional Annual Leave and the Conditions and
Procedure for Granting It" of 22 April 2003 to the extent that it
provides that the time of work in an enterprise, establishment,
or organisation from which the employee was transferred upon the
employers' agreement or on other grounds which do not interrupt
the period of service, shall not be included in the long
uninterrupted period of service in the same workplace for which
the additional annual leave is granted, is not in conflict with
Item 4 of Paragraph 1 of Article 30 of the Labour Code of the
Republic of Lithuania.
The Constitutional Court
has established:
I
The Panevėžys Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling, the said court suspended the investigation of the case
and applied to the Constitutional Court with a petition
requesting to investigate whether Item 1.2 of the Duration of the
Additional Annual Leave and the Conditions and Procedure for
Granting It approved by Government Resolution No. 497 "On
Approving the Duration of the Additional Annual Leave and the
Conditions and Procedure for Granting It" of 22 April 2003 to the
extent that it provides that the time of work in an enterprise,
establishment, or organisation from which the employee was
transferred upon the employers' agreement or on other grounds
which do not interrupt the period of service, shall not be
included in the long uninterrupted period of service in the same
workplace for which the additional annual leave is granted, is
not in conflict with Item 4 of Paragraph 1 of Article 30 of the
Labour Code.
II
The petition of the Panevėžys Regional Administrative
Court, the petitioner, is grounded on the fact that, in its
opinion, the disputed legal regulation unreasonably limits the
right of the employees, who have been transferred from a certain
workplace to another one, to the additional annual leave, since,
under Item 1.2 of the Duration of the Additional Annual Leave and
the Conditions and Procedure for Granting It, the time of work in
an enterprise, establishment, or organisation from which the
employee was transferred upon the employers' agreement or on
other grounds, shall not be included in the long uninterrupted
period of service in the same workplace for which the additional
annual leave is granted. In the opinion of the petitioner, such
legal regulation competes with the one established in the Labour
Code: under Item 2 of Paragraph 1 of Article 168 of the same
code, the additional annual leave may be granted for long
uninterrupted period of work in the same workplace; according to
the petitioner, the notion "long uninterrupted period of work in
the same workplace" virtually means the same as the notion
"uninterrupted period of service", which is defined in Item 4 of
Paragraph 1 of Article 30 of the said code, under which
uninterrupted period of service covers the period of employment
inter alia in "several enterprises, establishments or
organisations if the person was transferred from one workplace
into another by agreement between the employers or on other
grounds without interrupting the period of service or provided
that the break in the period of service is within the prescribed
time limits".
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from the representatives of the Government, the party concerned,
who were R. Lukaševičius, chief specialist of the Law Division of
the Ministry of Social Security and Labour, and R. Juršaitė, in
which it is maintained that the disputed legal regulation in not
in conflict with Item 4 of Paragraph 1 of Article 30 of the
Labour Code.
According to the representatives of the Government, the
party concerned, the disputed legal regulation is grounded on
Paragraph 2 of Article 168 of the Labour Code, under which the
duration of the additional annual leave, the terms and conditions
as well as the procedure for providing it shall be determined by
the Government. The period of service for which the additional
annual leave is received is not identical with any of the type of
the period of service which are specified in Paragraph 1 of
Article 30 of the Labour Code, inter alia with the uninterrupted
period of service, whose notion is presented in Item 4 of
Paragraph 1 of Article 30 of this code. Under Paragraph 1 of
Article 168 of the Labour Code, the additional annual leave shall
be granted for a long uninterrupted period of work at the same
workplace, thus, in order to receive the additional annual leave,
the period of service must be not only uninterrupted, but also it
must be the period of service in namely the same workplace
(enterprise, establishment, organisation), which is defined in
Item 3 of Paragraph 1 of Article 30 of this code.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from P. Koverovas, State Secretary of the Ministry of Justice of
the Republic of Lithuania, M. Pluktas, Chief State Labour
Inspector of the State Labour Inspectorate of the Republic of
Lithuania, and A. Černiauskas, Chairman of the Confederation of
Trade Unions of Lithuania.
V
At the Constitutional Court hearing, R. Juršaitė, the
representative of the Government, the party concerned, virtually
reiterated the written arguments set forth in her written
explanations.
The Constitutional Court
holds that:
1. On 22 April 2003, the Government adopted Resolution No.
497 "On Approving the Duration of the Additional Annual Leave and
the Conditions and Procedure for Granting It", which came into
force on 26 April 2003, and which approved the Duration of the
Additional Annual Leave and the Conditions and Procedure for
Granting It. This Government resolution points out that it was
adopted by invoking Paragraph 2 of Article 168 of the Labour
Code; it needs to be mentioned that the same paragraph
establishes that the duration of additional annual leave, the
terms and conditions as well as the procedure for providing it
shall be determined by the Government, while a contract of
employment, a collective agreement or internal work regulations
may define a longer additional annual leave or additional annual
leave of types other than those specified in this article.
2. Item 1 of the Duration of the Additional Annual Leave
and the Conditions and Procedure for Granting It inter alia
provides:
"An additional annual leave shall be granted:
1.2. for a long uninterrupted period of work in the same
workplace to the employees with bigger than a 10-year
uninterrupted period of service in that workplace3 calendar
days, and for every subsequent 5-year period of service in the
same workplace1 calendar day. The actual time of work in the
same workplace and other periods of time specified in Paragraph 1
of Article 170 of the Republic of Lithuania Labour Code shall be
included into the long uninterrupted period of service in the
same workplace, for which the additional annual leave is granted.
The time of work in an enterprise, establishment, or organisation
from which the employee was transferred upon the employers'
agreement or on other grounds which do not interrupt the period
of service, shall not be included in the long uninterrupted
period of service."
3. The Panevėžys Regional Administrative Court, the
petitioner, requests that the Constitutional Court investigate
whether Item 1.2 of the Duration of the Additional Annual Leave
and the Conditions and Procedure for Granting It to the extent
that it provides that the time of work in an enterprise,
establishment, or organisation from which the employee was
transferred upon the employers' agreement or on other grounds
which do not interrupt the period of service in the same
workplace, shall not be included in the long uninterrupted period
of service for which the additional annual leave is granted, is
not in conflict with Item 4 of Paragraph 1 of Article 30 of the
Labour Code.
4. Item 4 of Paragraph 1 of Article 30 of the Labour Code
provides that the uninterrupted period of service covers the
period of employment in one enterprise, establishment
organisation or several enterprises, establishments or
organisations if the person was transferred from one workplace
into another by agreement between the employers or on other
grounds without interrupting the period of service or provided
that the break in the period of service is within the prescribed
time limits.
5. The Panevėžys Regional Administrative Court, the
petitioner, grounds its doubts as regards the compliance (to the
specified extent) of Item 1.2 of the Duration of the Additional
Annual Leave and the Conditions and Procedure for Granting It
with Item 4 of Paragraph 1 of Article 30 of the Labour Code on
the fact that, in the opinion of the petitioner, the notion "long
uninterrupted period of work in the same workplace" of Item 1.2
of the Duration of the Additional Annual Leave and the Conditions
and Procedure for Granting It virtually means the same as the
notion "uninterrupted period of service", which is consolidated
in Item 4 of Paragraph 1 of Article 30 of the Labour Code,
however, under disputed Item 1.2 of the Duration of the
Additional Annual Leave and the Conditions and Procedure for
Granting It, the time of work in an enterprise, establishment, or
organisation from which the employee was transferred upon the
employers' agreement or on other grounds, shall not be included
in the long uninterrupted period of service in the same
workplace.
6. Under Paragraph 1 of Article 30 of the Labour Code, the
period of service can be inter alia the period of service in a
certain enterprise, establishment, organisation (Item 3), as well
as an uninterrupted period of service (Item 4). As mentioned,
under Item 4 of Paragraph 1 of Article 30 of the Labour Code, the
uninterrupted period of service covers the time of work in one
enterprise, establishment organisation or several enterprises,
establishments or organisations if the person was transferred
from one workplace into another by agreement between the
employers or on other grounds without interrupting the period of
service or provided that the break in the period of service is
within the prescribed time limits.
In this context it needs to be noted that, under Item 3 of
Paragraph 1 of Article 30 of the Labour Code, the time of work in
a certain enterprise, establishment, organisation as well as the
time periods which are permitted to be included into the period
of service, are included into the period of service in that
workplace; change of the owner of the enterprise, establishment
or organisation or changes in their subordination, or change of
their founders or names, also their merger, division, or take-
over shall not affect the period of service in the respective
enterprise, establishment or organisation. It needs be noted that
it was established in Article 138 (wording of 4 June 2002) of the
Labour Code (which consolidated the limitations to terminate an
employment contract during the reorganisation of an enterprise)
that changes of the owner of an enterprise, establishment or
organisation, the subordination, founder or name thereof, any
merger of the enterprise, establishment or organisation,
division, parcelling out, division or joining to another
enterprise, establishment or organisation, may not be a
legitimate reason to terminate employment relations, while under
Article 138 (wording of 12 May 2005) of the Labour Code, transfer
of business or a part thereof may not be a legitimate reason to
terminate employment relations, either.
7. Under Item 2 of Paragraph 1 (wording of 4 June 2002) of
Article 168 of the Labour Code, the additional annual leave could
be granted "for a long uninterrupted period of work at the same
work place". Under Paragraph 2 of Article 165 of the Labour Code,
an annual leave shall be minimum, extended and additional, while,
as mentioned, under Paragraph 2 (which is also set forth at
present in its initial wording of 4 June 2002) Article 168 of
this code, the duration of the additional annual leave, the terms
and conditions as well as the procedure for providing it must be
determined by the Government, however, a contract of employment,
a collective agreement or internal work regulations may define a
longer additional annual leave or additional annual leave of
types other than those specified in this article. Upon amending
Paragraph 1 (wording of 4 June 2002) of Article 168 of the Labour
Code and setting it forth in the new wording of 12 May 2005, it
was consolidated that "for a long uninterrupted period of work at
the same work place" the additional annual leave shall be
granted, but not "may be granted".
In this context, it needs to be noted that under Paragraph
2 (wordings of 4 June 2002, 30 June 2005, and 8 June 2006) of
Article 170 of the Labour Code, the years of work for which the
annual leave is granted shall start from the date of admission of
the employee to work.
8. The right of a working individual to an annual paid
leave is his constitutional right (Paragraph 1 of Article 49 of
the Constitution). Thus, the essential condition of the
implementation of this right must be established by means of a
law.
Therefore, the provision of Paragraph 2 of Article 168 of
the Labour Code that the duration of the additional annual leave,
the terms and conditions as well as the procedure for providing
it shall be determined by the Government is to be construed as
the one permitting that the Government establish only such legal
regulation consolidating the duration of the additional annual
leave, the terms and conditions as well as the procedure for
providing it, which does not compete with the legal regulation
established in laws, inter alia in the Labour Code. Only if the
said provision is construed in this manner, then it is compatible
with the Constitution.
9. It needs to be held that under the Labour Code, inter
alia under Item 2 (wording of 4 June 2002) of Paragraph 1
(wordings of 4 June 2002 and 12 May 2005) of Article 168 thereof,
the uninterruptedness of work and the fact that one had to work
in the same enterprise for a long time (without excluding the
cases, where there are changes of the owner of an enterprise,
establishment or organisation, the subordination, founder or name
thereof, any merger of the enterprise, establishment or
organisation, division, parcelling out, division or joining to
another enterprise, establishment or organisation, transfer of
business or a part thereof) are necessary conditions for granting
an addition annual leave (in the corresponding enterprise).
10. Although, as it has been mentioned, the position of the
Panevėžys Regional Administrative Court, the petitioner, is
grounded on the fact that, in the opinion of the petitioner, the
notion "long uninterrupted period of work in the same workplace"
of Item 1.2 of the Duration of the Additional Annual Leave and
the Conditions and Procedure for Granting It virtually means the
same as the notion "uninterrupted period of service", which is
consolidated in Item 4 of Paragraph 1 of Article 30 of the Labour
Code, however, the arguments presented by the petitioner are not
related in any way with the length of "uninterrupted period of
work in the same workplace" which is provided for in Item 1.2 of
the Duration of the Additional Annual Leave and the Conditions
and Procedure for Granting It.
The Constitutional Court will investigate the compliance of
the legal regulation (which is disputed by the Panevėžys Regional
Administrative Court, the petitioner) with that established in
the law only in the aspect that the petitioner has presented the
arguments regarding the compliance (to the specified extent) of
Item 1.2 of the Duration of the Additional Annual Leave and the
Conditions and Procedure for Granting It with Item 4 of Paragraph
1 of Article 30 of the Labour Code.
11. The notion "long uninterrupted period of work in the
same workplace" of Item 2 (wording of 4 June 2002) of Paragraph 1
(wordings of 4 June 2002 and 12 May 2005) of Article 168 of the
Labour Code is to be construed without ignoring Item 3 of
Paragraph 1 of Article 30 of this code, under which, as it was
mentioned, the time of work in a certain enterprise,
establishment, organisation as well as the time periods which are
permitted to be included into the period of service, are included
into the period of service in that workplace, however, the
aforesaid notion is not be construed according to how
"uninterrupted period of service" is defined in Item 4 of
Paragraph 1 of Article 30 of the said code.
Thus, the notion "long uninterrupted period of work in the
workplace" of Item 2 (wording of 4 June 2002) of Paragraph 1
(wordings of 4 June 2002 and 12 May 2005) of Article 168 of the
Labour Code is not identical with the notion "uninterrupted
period of service" of Item 4 of Paragraph 1 of Article 30 of the
said code.
12. Thus, the notion "long uninterrupted period of work in
the same workplace" of Item 1.2 of the Duration of the Additional
Annual Leave and the Conditions and Procedure for Granting It is
not to be paralleled with the notion "uninterrupted period of
service" of Item 4 of Paragraph 1 of Article 30 of the Labour
Code, thus, the position of the Panevėžys Regional Administrative
Court, the petitioner, that the notion "long uninterrupted period
of work in the same workplace" of Item 1.2 of the Duration of the
Additional Annual Leave and the Conditions and Procedure for
Granting It virtually means the same as the notion "uninterrupted
period of service", which is consolidated in Item 4 of Paragraph
1 of Article 30 of the Labour Code, is not legally grounded.
13. Alongside, it needs to be held that to the extent
(which is disputed by the Panevėžys Regional Administrative
Court, the petitioner) of Item 1.2 of the Duration of the
Additional Annual Leave and the Conditions and Procedure for
Granting It conforms to the conditions for the additional annual
leave (in the corresponding enterprise) consolidated in Item 2
(wording of 4 June 2002) of Paragraph 1 (wordings of 4 June 2002
and 12 May 2005) of Article 168 of the Labour Code.
14. Besides, under Article 177 (wording of 4 June 2002 and
12 May 2005) of the Labour Code, if the employee cannot be
granted the additional annual leave due to the termination of
employment relationship or where the employee does not wish to go
on such leave, he shall be paid monetary compensation. Under
Paragraph 2 of this article, monetary compensation for the unused
additional annual leave shall be paid by terminating the contract
of employment irrespective of its term, while the amount of the
compensation shall be determined in accordance with the number of
working days of the unused annual leave for this period of
employment; if the employee was not granted the additional annual
leave for a period longer than one year, the compensation shall
be paid for all the period of the unused annual leave (prior to
setting forth this paragraph in the wording of 12 May 2005, it
used to be established "for a period which is not longer than
three years").
15. Taking account of the arguments set forth, one is to
hold that Item 1.2 of the Duration of the Additional Annual Leave
and the Conditions and Procedure for Granting It to the extent
that it provides that the time of work in an enterprise,
establishment, or organisation from which the employee was
transferred upon the employers' agreement or on other grounds
which do not interrupt the period of service, shall not be
included in the long uninterrupted period of service in the same
workplace for which the additional annual leave is granted, is
not in conflict with Item 4 of Paragraph 1 of Article 30 of the
Labour Code.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
To recognise that Item 1.2 (Official Gazette Valstybės
žinios, 2003, No. 39-1787) of the Duration of the Additional
Annual Leave and the Conditions and Procedure for Granting It
approved by Resolution of the Government of the Republic of
Lithuania No. 497 "On Approving the Duration of the Additional
Annual Leave and the Conditions and Procedure for Granting It" of
22 April 2003 to the extent that it provides that the time of
work in an enterprise, establishment, or organisation from which
the employee was transferred upon the employers' agreement or on
other grounds which do not interrupt the period of service, shall
not be included in the long uninterrupted period of service in
the same workplace for which the additional annual leave is
granted, is not in conflict with Item 4 of Paragraph 1 of Article
30 of the Labour Code of the Republic of Lithuania.
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court:
Armanas Abramavičius
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Romualdas Kęstutis Urbaitis