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On the additional annual leave

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 AS APPROVED BY THE 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

The court reporter—Daiva Pitrėnaitė

Rūta Juršaitė, chief specialist of the Labour Relations and Remuneration Division of the Ministry of Social Security and Labour of the Republic of Lithuania, 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 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, considered case No. 15/05 subsequent to the petition of the Panevėžys Regional Administrative Court, the petitioner, requesting an investigation into whether Item 1.2 of the Duration of the Additional Annual Leave and the Conditions and Procedure for Granting It as approved by the 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, considered an administrative case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Item 1.2 of the Duration of the Additional Annual Leave and the Conditions and Procedure for Granting It as approved by the 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 impugned 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’s 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 impugned 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 impugned 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’s 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, Chairperson of the Confederation of Trade Unions of Lithuania.

V

At the Constitutional Court’s 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 the 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 prescribes 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 workplace—3 calendar days, and for every subsequent 5-year period of service in the same workplace—1 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’s 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 the impugned 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 before, 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 whose inclusion into the period of service is permitted, 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 on terminating 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 before, 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 its 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 should be construed as the one permitting the Government to 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 impugned 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 should be construed without ignoring Item 3 of Paragraph 1 of Article 30 of this code, under which, as mentioned before, the time of work in a certain enterprise, establishment, organisation as well as the time periods whose inclusion into the period of service is permitted, 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 impugned 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 its 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, it should be held 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 gives 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 as approved by the 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 pronounced 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