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On the establishment of reduced working days

Case No. 36/99

 

 

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 Working Days or Reduced Working Weeks as approved by the 9 January 1995 resolution (No. 21) of the Government of the Republic of Lithuania with the Constitution of the Republic of Lithuania and Paragraph 4 of Article 46 of the Republic of Lithuania’s Law on Labour Protection (wording of 7 October 1993)

 

Vilnius, 24 May 2001

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė

The court reporter—Daiva Pitrėnaitė

Algirdas Bartkevičius, Head of the Labour Relations and Remuneration Division of the Ministry of Social Security and Labour, acting as the representative of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 17 May 2001, in its public hearing, considered case No. 36/99 subsequent to the petition submitted to the Constitutional Court by the Higher Administrative Court, the petitioner, requesting an investigation into the compliance of Item 3.3 of the Procedure for Establishing Reduced Working Days or Reduced Working Weeks as approved by the 9 January 1995 resolution (No. 21) of the Government of the Republic of Lithuania with Item 2 of Article 94 the Constitution of the Republic of Lithuania and Paragraph 4 of Article 46 of the Republic of Lithuania’s Law on Labour Protection.

The Constitutional Court

has established:

I

The petitioner—the Higher Administrative Court—was considering an administrative case. The said court suspended the consideration of the case and applied to the Constitutional Court requesting an investigation into the compliance of Item 3.3 of the Procedure for Establishing Reduced Working Days or Reduced Working Weeks (Official Gazette Valstybės žinios, 1995, No. 5-92; hereinafter also referred to as the Procedure) as 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 petition of the petitioner is based on the following arguments.

Paragraph 4 of Article 46 of the Law provides that the procedure for establishing reduced working days or reduced working weeks shall be established by the Government of the Republic of Lithuania.

Item 3.3 of the Procedure provides that upon an agreement about reduced working time, one may provide for reduction of a working day (shift) by a certain number of hours, by reducing at the same time the number of working 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 working days or reduced working weeks. However, in Item 3.3 of the Procedure the Government also established that upon an agreement about reduced working time, one may provide for reduction of a working day (shift) by a certain number of hours, by reducing at the same time the number of working 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 Working Days or Reduced Working Weeks as 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 working day save the 6-day working week in the event of which the working 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 working hours for employees in enterprises may not exceed 40 hours per week, while Paragraph 2 thereof provides that the length of a working day (shift) shall be established according to the number of working 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 working time, does not prohibit establishing reduced working days or reduced working weeks individually nor does it prohibit establishing both reduced working days or reduced working week at the same time. Therefore, Item 3.3 of the Procedure establishing that upon an agreement about reduced working time, one may provide for reduction of a working day (shift) by a certain number of hours, by reducing at the same time the number of working 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, Chairperson 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’s Law on the Protection and Health of Employees provides that upon an agreement between the employee and the employer, reduced working days or reduced working weeks may be established. This legal provision has established two options of establishment of reduced working time: a reduced working day or a reduced working week. By means of the government resolution an additional option of the establishment of reduced working time was laid down: a reduced working day, by reducing, at the same time, the number of working days in the week. A. Melianas also pays attention to the fact that the Law does not regulate the minimal duration of working time, while the Government is not commissioned to establish such a limitation. Meanwhile, it is established in the Procedure approved by the Government that a reduced working day may not be shorter than half of the working day, while a reduced working week—than three working days per week.

2. In his written explanation G. Švedas points out that the provision of Article 46 of the Law that upon an agreement between the employee and the employer, a reduced working day or reduced working week may be established permits drawing the conclusion that the provisions concerning the establishment of reduced working 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 working 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 working hours in the working day by reducing at the same time the number of working days in the week, moreover that the wording “reduced working days or reduced working 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 working days or reduced working weeks. Having determined that one is permitted not only to reduce working days or reduce working weeks individually, but also to reduce both working days and working 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 an agreement between the employee and the employer, a reduced working day or reduced working week may be established. No one may impose any limitation on 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 working day (shift) may not be shorter than half of the working day (shift), while a reduced working week—than three working 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 working 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 working 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 working 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 working 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 Working Days or Reduced Working Weeks as 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 an agreement about reduced working time, one may provide for reduction of a working day (shift) by a certain number of hours, by reducing at the same time the number of working 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 working days or reduced working weeks shall be established by the Government of the Republic of Lithuania. Other reduced working 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’s Law on Amending the Law on Labour Protection was adopted (Official Gazette Valstybės žinios, 2000, No. 95-2968) by which the Law on Labour Protection was renamed as the Law on the Protection and Health of Employees and the law in its new wording 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 the impugned 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 working days or reduced working weeks” established in Paragraph 4 of Article 46 of the Law must be interpreted. This wording might produce an impression that the Government was commissioned by the Law to establish either the procedure of reduced working days or that of reduced working days. However, this provision should 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 an agreement between the employee and the employer, a reduced working day or reduced working week may be established. It is provided in Paragraph 4 of Article 46 of the Law that other reduced working 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 working day or reduced working 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 working days or the procedure of reduced working weeks, has also the right to establish that upon an agreement about reduced working time, one may provide for reduction of a working day (shift) by a certain number of hours, by reducing at the same time the number of working days in the week. Therefore, the commissioning by the Law that the Government should establish the procedure of reduced working days or reduced working weeks may not be construed as the consolidation of the alternative—to establish either only a reduced working day or only a reduced working week.

3. It needs to be noted that the establishment of flexible regime of working 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, it should be concluded that Item 3.3 of the Procedure for Establishing Reduced Working Days or Reduced Working Weeks as 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 Working Days or Reduced Working Weeks as 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, the conclusion should be drawn that Item 3.3 of the Procedure for Establishing Reduced Working Days or Reduced Working Weeks as 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 Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that Item 3.3 of the Procedure for Establishing Reduced Working Days or Reduced Working Weeks as approved by the 9 January 1995 resolution (No. 21) of the Government of the Republic of Lithuania is in compliance with the Constitution of the Republic of Lithuania and Paragraph 4 of Article 46 of the Republic of Lithuania’s Law on Labour Protection (wording of 7 October 1993).

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

 

Egidijus Jarašiūnas      Egidijus Kūris      Zigmas Levickis

 

Augustinas Normantas      Vladas Pavilonis      Jonas Prapiestis

 

Vytautas Sinkevičius     Teodora Staugaitienė