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On the equalised working week and annual leave of healthcare employees

Case No. 44/2009

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF ITEM 6 (WORDING OF 29 APRIL 2009) OF THE PROCEDURE FOR THE REDUCING OF THE WORKING TIME OF THE EMPLOYEES WHOSE WORK INVOLVES GREATER MENTAL AND EMOTIONAL STRAIN AS APPROVED BY THE RESOLUTION (NO. 1195) OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA “ON APPROVING THE PROCEDURE FOR THE REDUCING OF THE WORKING TIME OF THE EMPLOYEES WHOSE WORK INVOLVES GREATER MENTAL AND EMOTIONAL STRAIN AND ON APPROVING THE CONDITIONS FOR REMUNERATION FOR WORK FOR THE EMPLOYEES TO WHOM SHORTER WORKING TIME IS ESTABLISHED” OF 30 SEPTEMBER 2003 AND ITEM 4 (WORDING OF 29 APRIL 2009) OF THE LIST OF THE EMPLOYEES OF CERTAIN CATEGORIES WHO HAVE THE RIGHT TO EXTENDED ANNUAL LEAVE AND THE DURATION OF THIS LEAVE AS APPROVED BY THE RESOLUTION (NO. 941) OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA “ON APPROVING THE LIST OF THE EMPLOYEES OF CERTAIN CATEGORIES WHO HAVE THE RIGHT TO EXTENDED ANNUAL LEAVE AND THE DURATION OF THIS LEAVE” OF 18 JULY 2003 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND THE LABOUR CODE OF THE REPUBLIC OF LITHUANIA

 9 May 2013

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,

with the secretary—Daiva Pitrėnaitė,

in the presence of the representatives of the Government of the Republic of Lithuania, the party concerned, who were Nora Ribokienė, an adviser to the Minister of Health of the Republic of Lithuania, Nerija Stasiulienė, Director of the Legal Department of the Ministry of Health of the Republic of Lithuania, Jonas Bartlingas, Head of the Health Care Resources Management Division of the Personal Health Care Department of the same ministry, and Danguolė Milkevičiūtė, a chief specialist of the Representation and Law Application Division of the Legal Department of the same ministry,

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, on 10 April 2013, in the Court’s public hearing considered constitutional justice case No. 44/2009 subsequent to the petition (No. 1B-55/2009) of a group of Members of the Seimas of the Republic of Lithuania, the petitioner, requesting to investigate whether the Resolution (No. 411) of the Government of the Republic of Lithuania “On Amending the Resolution (No. 1195) of the Government of the Republic of Lithuania ‘On Approving the Procedure for the Reducing of the Working Time of the Employees Whose Work Involves Greater Mental and Emotional Strain and on Approving the Conditions for Remuneration for Work for the Employees to Whom Shorter Working Time Is Established’ of 30 September 2003” of 29 April 2009 and the Resolution (No. 412) of the Government of Republic of Lithuania “On Amending the Resolution (No. 941) of the Government of the Republic of Lithuania ‘On Approving the List of the Employees of Certain Categories Who Have the Right to Extended Annual Leave and the Duration of This Leave’ of 18 July 2003” of 29 April 2009 are not in conflict with Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania and Articles 145 and 167 of the Labour Code of the Republic of Lithuania.

The Constitutional Court

has established:

I

The petition of the group of Members of the Seimas, the petitioner, is substantiated by the following arguments.

  1. Through Articles 145 and 167 of the Labour Code (wording of 4 June 2002), the legislator empowered the Government to establish a procedure for the reducing of the working time of the employees whose work involves greater mental and emotional strain, to approve a list of the employees of certain categories who have the right to extended annual leave and to establish in this list a concrete duration of the extended leave with regard to each category of the employees. On 30 September 2003, while exercising the functions granted to it, the Government adopted the Resolution (No. 1195) “On Approving the Procedure for the Reducing of the Working Time of the Employees Whose Work Involves Greater Mental and Emotional Strain and on Approving the Conditions for Remuneration for Work for the Employees to Whom Shorter Working Time Is Established” (hereinafter also referred to as government resolution No. 1195 of 30 September 2003), through which it established shorter working time for the healthcare workers who faced highest professional risks, and, on 18 July 2003, it adopted Resolution (No. 941) “On Approving the List of the Employees of Certain Categories Who Have the Right to Extended Annual Leave and the Duration of This Leave” (hereinafter also referred to as government resolution No. 941 of 18 July 2003), through which the 42-calendar-day duration of the extended annual leave for the aforesaid healthcare workers was established.

The Government Resolution (No. 411) “On Amending the Resolution (No. 1195) of the Government of the Republic of Lithuania ‘On Approving the Procedure for the Reducing of the Working Time of the Employees Whose Work Involves Greater Mental and Emotional Strain and on Approving the Conditions for Remuneration for Work for the Employees to Whom Shorter Working Time Is Established’ of 30 September 2003” of 29 April 2009 (hereinafter also referred to as government resolution No. 411 of 29 April 2009) unlawfully and unreasonably prolonged, up to 38 hours per week, the working time with respect to the healthcare workers to whom a 36-, 33- and 30-hour working week had been established through government resolution No. 1195 of 30 September 2003.

The Government Resolution (No. 412) “On Amending the Resolution (No. 941) of the Government of the Republic of Lithuania ‘On Approving the List of the Employees of Certain Categories Who Have the Right to Extended Annual Leave and the Duration of This Leave’ of 18 July 2003” of 29 April 2009 (hereinafter also referred to as government resolution No. 412 of 29 April 2009) unlawfully and unreasonably reduced, down to 36 calendar days, the duration of extended annual leave with regard to the healthcare workers to whom a 42-calendar-day leave had been established by government resolution No. 941 of 18 July 2003.

  1. While adopting its resolutions Nos. 411 and 412 of 29 April 2009, the Government was not following any objective criteria, but an opinion of the specialists of the Ministry of Health, which is not grounded upon any research or expertise. The impugned government resolutions were adopted in violation of the principles of stability of employment relations, uniformity of labour laws and their differentiation on the basis of working conditions of the Labour Code (wording of 4 June 2002), as well as in violation of this code’s provisions on social partnership. In the situation in question no working group was formed, which could have included representatives from associations, trade unions or societies of healthcare specialists. Before adopting the said resolutions, contrary to the requirements of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (hereinafter also referred to as Directive 89/391/EEC), the Government had not carried out any expert evaluation. Upon the adoption of the impugned government resolutions, the quality of rendered healthcare services and the working conditions of some healthcare specialists deteriorated.
  2. Paragraph 1 of Article 48 of the Constitution provides that each human being shall have the right to have proper, safe and healthy conditions at work. Such a right is also consolidated in Article 23 of the United Nations Universal Declaration of Human Rights, Articles 2 and 3 of the European Social Charter, and in numerous EU directives regulating safe and healthy working conditions. This right includes not only the compulsory application of employees’ safety and health measures at work, but also the establishment of proper working and rest time and of leave guarantees with respect to persons of certain categories, who require additional protection. This right is guaranteed in all private and public enterprises, establishments and organisations, regardless of the type of their activity. Due to the peculiarities of work (greater nervous, emotional, and mental strain, professional risk, specific working conditions) the measures of the implementation of the right in question may be different, however, safe and healthy working conditions must be created for all employees. The said right is implemented in practice in the course of the adoption of normative legal acts on conditions of safety and health at work and in the measures assuring the observance of those legal acts in addition to control. After government resolutions Nos. 411 and 412 of 29 April 2009 had reduced the annual leave of the aforesaid healthcare workers and extended the duration of a week’s working time, the right to safe and healthy working conditions as consolidated in Paragraph 1 of Article 48 of the Constitution was violated.

II

  1. 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—N. Ribokienė, Vice-minister of Health, I. Milašiūtė, an adviser to the Minister of Health, N. Stasiulienė, Director of the Legal and Personnel Department of the Ministry of Health, and J. Bartlingas, Head of the Health Care Resources Management Division of the Personal Health Care Department of the same ministry—wherein it is maintained that the impugned legal regulation is not in conflict with the Constitution and the Labour Code. The position of the representatives of the party concerned is substantiated by the following arguments.

1.1. One of the main reasons that determined the amendments to government resolution No. 1195 of 30 September 2003 and government resolution No. 941 of 18 July 2003 was disagreements between the employees and the employers and their representatives, i.e. disagreements between two social partners. The social partners interpreted and applied the provisions of those government resolutions in a different manner, therefore, the burden of solving these disagreements was forwarded to state institutions through various letters and complaints. Because of these circumstances, the initiation of the amendments to the valid legal regulation was needed. Government resolutions Nos. 411 and 412 of 29 April 2009 were prepared and adopted according to the procedure established through the Work Regulations of the Government as approved by government resolution No. 728 of 11 August 1994, with prior co-ordination of the draft resolutions with the interested institutions, prior consultation and co-operation with the representatives of the employees and the employers, who were the Lithuanian Medical Doctors’ Union, the Lithuanian Head Medical Doctors’ Union etc. When drafts of the impugned legal acts were being discussed at the Seimas Committee on Health Affairs, the representatives of the organisations representing the social partners also took part. During the meetings, discussions and consultations at various levels it was decided that in solving the problems of working time and the duration of leave, the working time and annual leave of equal duration for healthcare workers must be established, where one takes account of the intellectual and emotional tension experienced by them at work.

1.2. The statement of the petitioner that, upon the adoption of the impugned government resolutions, the quality of rendered healthcare services and the working conditions of some healthcare specialists were reduced, is not substantiated by any data or indicators. From the 19 January 2010 Report (No. 8V-13) of the State Medical Audit Inspectorate under the Ministry of Health, which, according to Paragraph 1 of Article 52 of the Republic of Lithuania’s Law on Healthcare Establishments carries out state supervision regarding accessibility, quality (adequacy) and economic efficiency of personal healthcare services, it is clear that, in 2009, the number of unplanned inspections, which are, as a rule, made subsequent to a complaint by a patient (his representatives), if compared with the other years as from 2006, has not been exceptional. The data submitted in the 28 January 2010 Letter (No. 4K-52-466) of the State Patients’ Fund under the Ministry of Health, which, according to Paragraph 1 of Article 52 of the Republic of Lithuania’s Law on Healthcare Establishments, carries out supervision of the quantity and quality of personal healthcare services covered from the Compulsory Health Insurance Fund, show that upon the amendment of the number of the hours of a working week of doctors, the access to ambulatory services of numerous specialists was improved. It means that the conditions ensuring the economic, communicational, and organisational acceptability of personal healthcare services became better. According to the data of the healthcare establishments implementing the provisions of the impugned legal acts, the working conditions of numerous healthcare workers improved: the working time became shorter for 54.4 percent of the employees, whereas the duration of annual leave increased for 71.6 percent of the employees. Therefore, it is possible to draw a conclusion that the impugned legal acts created more favourable conditions for work and annual leave of healthcare workers.

1.3. The petitioner unreasonably maintains that the Government, prior to the adoption of the impugned resolutions, was supposed to carry out an expert evaluation and assess the professional risk incurred by the employees. Such a duty is provided neither in Directive 89/391/EEC, nor in the Republic of Lithuania’s Law on Safety and Health at Work. While implementing the powers established to it by the Labour Code (wording of 4 June 2002), the Government adopted the impugned resolutions while seeking to solve the social partners’ disagreements on the application of legal norms and to establish non-discriminatory and socially fair norms of working time and annual rest for healthcare workers. The Government adopted its resolution No. 411 of 29 April 2009 pursuant to the powers conferred on it through Paragraph 2 of Article 145 of the Labour Code (wording of 4 June 2002), i.e. it adopted its resolution only with respect to the employees whose work involves greater mental and emotional strain. The reduction of the working time of the persons specified in Paragraph 1 (wording of 12 May 2005) of Article 145 (wording of 4 June 2002) of the Labour Code, inter alia the persons who work in a hazardous environment, is regulated by other legal acts. The Government adopted its resolution No. 412 of 29 April 2009 pursuant to the powers conferred on it through Article 167 of the Labour Code (wording of 4 June 2002). The work of all healthcare workers is very important and responsible. The highest requirements for attentiveness and carefulness are raised for the activity carried out by them. Each of them experiences constant stress in their direct work. In the absence of any possibilities to compare the work performed by specialists of certain specialities or those working in units providing with certain services, and in the absence of any objective criteria according to which it would be possible to assess the intellectual and emotional stress individually experienced by every healthcare worker, there are not any possibilities to differentiate, in a government resolution, either the employees’ annual rest designated for restoration of working efficiency, or the duration of their working time.

1.4. The impugned government resolutions, which equalised the duration of working time and that of annual leave of healthcare workers, were adopted pursuant to valid legal acts and are not in conflict with Paragraph 1 of Article 48 of the Constitution.

  1. In the course of the preparation of the case for the Constitutional Court hearing, additional written explanations were received from the representative of the Government, the party concerned, who was N. Ribokienė, an adviser to the Minister of Health, N. Stasiulienė, Director of the Legal Department of the same ministry, J. Bartlingas, Head of the Health Care Resources Management Division of the Personal Health Care Department of the same ministry, and D. Milkevičiūtė, a chief specialist of the Representation and Law Application Division of the Legal Department of the same ministry, wherein one assents to the arguments set forth in previous written explanations and one maintains that the impugned legal regulation is not in conflict with the Constitution and the Labour Code. In their additional written explanations, the representatives of the Government, the party concerned, noted that the government resolutions, which are impugned by the petitioner, regulate the employees’ working and rest time while taking account not of the professional risk, but of the character of work, the intellectual and emotional stress experienced at work, whilst the provisions of the impugned government resolutions are not related to an assessment of the factors of employees’ working environment or an assessment of professional risk, since such assessments must be made by the employer.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from Vilius Mačiulaitis, Chief State Labour Inspector of the Republic of Lithuania.

IV

At the Constitutional Court hearing, N. Ribokienė, N. Stasiulienė, J. Bartlingas, and D. Milkevičiūtė, representatives of the Government, the party concerned, reiterated the arguments set forth in their written explanations, presented additional explanations, and answered the questions of justices of the Constitutional Court.

The Constitutional Court

holds that:

I

  1. The group of Members of the Seimas, the petitioner, requests investigation into whether government resolution No. 411 of 29 April 2009 is not in conflict with Paragraph 1 of Article 48 of the Constitution and Article 145 of the Labour Code (wording of 4 June 2002), and whether government resolution No. 412 of 29 April 2009 is not in conflict with Paragraph 1 of Article 48 of the Constitution and Article 167 of the Labour Code (wording of 4 June 2002).
  2. On 30 September 2003, the Government adopted resolution No. 1195 through which it approved the Procedure for the Reducing of the Working Time of the Employees Whose Work Involves Greater Mental and Emotional Strain (hereinafter also referred to as the Procedure) and the Conditions for Remuneration for Work for the Employees to Whom Shorter Working Time Is Established. The preamble to this government resolution points out that it was adopted pursuant to inter alia Paragraph 2 of Article 145 of the Labour Code.

2.1. It needs to be mentioned that Paragraph 2 of Article 145 “Reduced Working Time” of the Labour Code prescribes: “Shorter working time for employees whose work involves greater mental and emotional strain shall be established by the Government.” It also needs to be mentioned that Paragraph 1 of Article 144 “Duration of Working Time” of the Labour Code prescribes: “Working time may not exceed forty hours per week.”

Thus, according to this legal regulation, the duration of working time established in the Labour Code is reduced when work involves greater mental and emotional stain.

2.2. Items 6, 7, 8, and 9 (wording of 30 September 2003) of the Procedure prescribed:

“6. A 39-hour-working-week shall be established for the healthcare specialists rendering healthcare services as well as for the workers who provide direct services to patients or work under the same conditions (hereinafter referred to as healthcare workers), who are not specified in Items 7–9 of this Procedure.

  1. A 36-hour-working-week shall be established to the healthcare workers who:

7.1. provide healthcare services for patients suffering from mental diseases, with developmental disorders, after serious harm to the head and/or spinal cord (traumas, strokes, tumours, juvenile cerebral palsy, etc.) in healthcare establishments, social care permanent establishments or educational establishments;

7.2. render healthcare services to patients suffering from tuberculosis, venereal or other contagious diseases in healthcare establishments, social care permanent establishments or educational establishments;

7.3. render anaesthesiologist and reanimation services, intensive therapy or emergency medical services;

7.4. perform work involving blood or blood slides, organs or their secretions, bacteria specimen, viral specimen, other harmful materials and their production, investigation, packaging, use or neutralisation;

7.5. work with toxic chemical substances, in centres of contagious diseases or chemical contamination, who perform prophylactic disinfection, disinsection, and deratisation;

7.6. work on the premises of mud baths, sulphur or hydrogen sulphide baths.

  1. A 33-hour-working-week shall be established to the healthcare workers who:

8.1. render healthcare services to the persons held in the establishments within the jurisdiction of the Department of Prisons under the Ministry of Justice, when they are remanded in custody, and also to those who are convicted, and who are serving their punishments of arrest, fixed-term deprivation of freedom, and sentence for life;

8.2. perform work involving sources of electromagnetic waves, monitory systems or ultrasound diagnostic devices.

  1. A 30-hour-working-week shall be established to the healthcare workers whose work involves:

9.1. radioactive substances or sources of ionising radiation and the second class output power laser devices;

9.2. autopsy and examination of specimens taken from cadavers or examination of tissues of patients.”

The Procedure approved by government resolution No. 1195 of 30 September 2003 has been amended on more than one occasion, inter alia by the Government Resolution (No. 1328) “On Supplementing the Resolution (No. 1195) of the Government of the Republic of Lithuania ‘On Approving the Procedure for the Reducing of the Working Time of the Employees Whose Work Involves Greater Mental and Emotional Strain and on Approving the Conditions for Remuneration for Work for the Employees to Whom Shorter Working Time Is Established’ of 30 September 2003” of 23 October 2003 (hereinafter also referred to as government resolution No. 1328 of 23 October 2003), through which the Procedure was supplemented with Item 81. Item 81 of the Procedure prescribed: “A 33-hour-working-week shall be established for medical doctors, if, according to their job instructions, they accept patients in policlinics, outpatient clinics, and a medical station.”

Thus, according to the legal regulation established in the Procedure, a 39-hour-working-week was established for the healthcare specialists rendering healthcare services as well as for the workers who provide direct services to patients or work under the same conditions (hereinafter referred to as healthcare workers), save the healthcare workers specified in Items 7, 8, 81, and 9 to whom respectively 36-, 33-, and 39-hour-working-weeks were established.

2.3. On 29 April 2009, the Government adopted resolution No. 411, which is impugned in the constitutional justice case at issue. This resolution prescribes:

“1. To amend the Procedure for the Reducing of the Working Time of the Employees Whose Work Involves Greater Mental and Emotional Strain, as approved by the Resolution (No. 1195) of the Government of the Republic of Lithuania ‘On Approving the Procedure for the Reducing of the Working Time of the Employees Whose Work Involves Greater Mental and Emotional Strain and on Approving the Conditions for Remuneration for Work for the Employees to Whom Shorter Working Time Is Established’ of 30 September 2003 (Official Gazette Valstybės žinios, 2003, No. 93-4205, No. 101-4559):

1.1 To set forth Item 6 thereof as follows:

‘6. A 38-hour-working-week shall be established for the healthcare specialists rendering healthcare services as well as for the workers who provide direct services to patients or work under the same conditions.’

1.2. To recognise Item 7 thereof as no longer valid.

1.3. To recognise Item 8 thereof as no longer valid.

1.4. To recognise Item 81 thereof as no longer valid.

1.5. To recognise Item 9 thereof as no longer valid.

  1. To recognise the Government Resolution (No. 1328) ‘On Supplementing the Resolution (No. 1195) of the Government of the Republic of Lithuania “On Approving the Procedure for the Reducing of the Working Time of the Employees Whose Work Involves Greater Mental and Emotional Strain and on Approving the Conditions for Remuneration for Work for the Employees to Whom Shorter Working Time Is Established” of 30 September 2003’ of 23 October 2003 (Official Gazette Valstybės žinios, 2003, No. 101-4559) as no longer valid. <...>”

Thus, after government resolution No. 411 of 29 April 2009 had set forth Item 6 of the Procedure in its new wording, after it had recognised Items 7, 8, 81, and 9 of the Procedure and government resolution No. 1328 of 23 October 2003 as no longer valid, the legal regulation that used to establish a shorter working week for healthcare workers of certain categories was repealed. Item 6 (wording of 29 April 2009) of the Procedure established a 38-hour-working-week for healthcare workers.

2.4. It has been mentioned that the petitioner requests investigation into whether government resolution No. 411 of 29 April 2009 is not in conflict with Paragraph 1 of Article 48 of the Constitution and Article 145 of the Labour Code (wording of 4 June 2002). While taking account of the fact that, as mentioned before, government resolution No. 411 of 29 April 2009 amended the Procedure approved by government resolution No. 1195 of 30 September 2003—Item 6 of the Procedure was set forth in its new wording, Items 7, 8, 81, and 9 as well as government resolution No. 1328 of 23 October 2003 were recognised as no longer valid—one should hold that the petitioner doubts whether Item 6 (wording of 29 April 2009) of the Procedure as approved by government resolution No. 1195 of 30 September 2003 is not in conflict with Paragraph 1 of Article 48 of the Constitution and Article 145 of the Labour Code (wording of 4 June 2002).

In addition, it is clear from the arguments of the petitioner that it doubts as regards the compliance of not entire Item 6 (wording of 29 April 2009) of the Procedure as approved by government resolution No. 1195 of 30 September 2003 with Paragraph 1 of Article 48 of the Constitution and Article 145 of the Labour Code (wording of 4 June 2002), but rather the compliance of the said item to the extent that it established the working week of the same duration to healthcare workers without taking into consideration the fact that at work employees of certain categories come under different mental and emotional strain.

2.5. The petitioner doubts whether Item 6 (wording of 29 April 2009) of the Procedure as approved by government resolution No. 1195 of 30 September 2003 to certain extent is not in conflict with entire Article 145 of the Labour Code (wording of 4 June 2002).

Paragraph 1 (wording of 12 May 2005) of Article 145 “Shorter Working Time” of the Labour Code (wording of 4 June 2002) prescribes:

“1. Shorter working time shall be set for:

1) persons under eighteen years of age—in accordance with the provisions of the Law on Safety and Health at Work;

2) persons who work in the working environment where, upon an assessment of the risk, it is found that the concentrations of hazardous factors exceed the acceptable limits (amounts) set in legal acts on safety and health at work and it is technically or otherwise impossible to reduce these concentrations in the working environment to acceptable levels not hazardous to health, working time shall be set taking into account the working environment, but not exceeding thirty six hours per week. The specific daily and weekly duration of working time for persons working in such an environment shall be set taking into the account the results of the examination of the working environment on the basis of the criteria and procedure approved by the Government for setting shorter working time according to the factors of the working environment;

3) persons working at night.”

Paragraph 2 (wording of 4 June 2002) of Article 145 of the Labour Code prescribes: “Shorter working time for employees whose work involves greater mental and emotional strain shall be established by the Government.”

Thus, Article 145 of the Labour Code (according to the petitioner, Item 6 (wording of 29 April 2009) of the Procedure as approved by government resolution No. 1195 of 30 September 2003 is in conflict with this article) lists the categories of the persons to whom the working time is reduced according to their age, the character and conditions of their work, and establishes the procedure for reduction of the working time.

Paragraph 1 (wording of 12 May 2005) of Article 145 of the Labour Code provides that  shorter working time is established due to the employees’ age, hazardous working conditions, and the work regime, whilst Paragraph 2 of Article 145 thereof prescribes that shorter working time is established for the persons whose work involves greater mental and emotional strain.

It needs to be mentioned that the procedure for reduction of the working time of the persons listed in Paragraph 1 (wording of 12 May 2005) of Article 145 of the Labour Code is regulated in other legal acts, as, for instance, in the Law on Safety and Health at Work (Article 36 “Work of Young Persons” (wording of 7 June 2007)), the Government Resolution (No. 568) “On Approving the Description of the Criteria and Procedure for Setting Shorter Working Time According to the Factors of the Working Environment” of 9 June 2006, and Article 154 “Work at Night” of the Labour Code.

It has been mentioned that the preamble to government resolution No. 1195 of 30 September 2003 points out that it was adopted pursuant to inter alia Paragraph 2 of Article 145 of the Labour Code. Having taken account of this fact, the Constitutional Court will investigate whether Item 6 (wording of 11 April 2009) of the Procedure, as approved by government resolution No. 1195 of 30 September 2003, is not in conflict, to a certain extent, with Paragraph 2 (wording of 4 June 2002) of Article 145 of the Labour Code.

  1. On 18 July 2003, the Government adopted resolution No. 941, through which it approved the List of the Employees of Certain Categories Who Have the Right to Extended Annual Leave and the Duration of This Leave (hereinafter also referred to as the List). The preamble to this resolution points out that it was adopted pursuant to Article 167 of the Labour Code.

3.1. It should be mentioned that Article 167 “Extended Annual Leave” of the Labour Code prescribes: “Extended annual leave up to fifty eight calendar days shall be granted to certain categories of employees whose work involves greater nervous, emotional and mental strain and professional risk, as well as to those employees who work in specific working conditions. The Government shall approve a list of categories of employees who are entitled to the extended leave and shall define therein the specific duration of the extended leave for each category of employees.” It should also be mentioned that Paragraph 1 of Article 166 “Minimum Annual Leave” of the Labour Code prescribes: “The minimum annual leave shall be a period of twenty eight calendar days.”

According to the legal regulation established in the quoted provisions of the Labour Code, the duration of the minimum annual leave is 28 calendar days; extended annual leave is granted to certain categories of employees whose work involves greater nervous, emotional and mental strain and professional risk, as well as to those employees who work in specific working conditions, whilst a list of such categories and the concrete duration of extended leave are established by the Government.

3.2. Items 4, 5, 6, and 16 (wording of 18 July 2003) of the List prescribed:

“4. Healthcare specialists and psychologists who work in psychiatric healthcare establishments, educational and social care establishments, who perform social work, who work in social care permanent establishments and psychiatric healthcare establishments—42 calendar days.

  1. Healthcare specialists working in the first-level inpatient personal healthcare establishments or units thereof, outpatient clinics, rural medical stations, in healthcare services in the establishments within the jurisdiction of the Department of Prisons and penal establishments executing deprivation of freedom (providing one works under an employment contract in those establishments), healthcare specialists providing non-permanent or permanent urgent medical aid (under their job description) in pathology, forensic medicine and other units (providing their job is directly related with autopsies and examination of specimen taken from cadavers), in laboratories with pathogenic viral and bacterial agents of the third and fourth groups or with sources of ionising radiation, family (general practice) doctors and nurses who work together—42 calendar days.
  2. Healthcare specialists working in enterprises, establishments and organisations, who are not specified in Items 4 and 5—35 calendar days. <...>
  3. Drivers working in ambulance service stations or departments—42 calendar days.”

The List approved by government resolution No. 941 of 18 July 2003 has been amended on more than one occasion, inter alia by the Government Resolution (No. 102) “On Amending the Resolution (No. 941) of the Government of the Republic of Lithuania ‘On Approving the List of the Employees of Certain Categories Who Have the Right to Extended Annual Leave and the Duration of This Leave’ of 18 July 2003” of 2 February 2004 (hereinafter also referred to as government resolution No. 102 of 2 February 2004), through Items 1.2, 1.3, and 1.4 whereof Items 4, 5, and 6 of the List were amended. The said items were set out as follows:

“4. The healthcare specialists rendering healthcare services as well as the workers who provide direct services to patients or work under the same conditions (hereinafter referred to as healthcare workers), who work in enterprises, establishments and organisations and are not specified in Items 5–6 of this Procedure—35 calendar days.

  1. Healthcare workers working in the first-level inpatient personal healthcare establishments or units thereof, outpatient clinics, rural medical stations, in healthcare services in the establishments within the jurisdiction of the Department of Prisons and penal establishments executing deprivation of freedom (providing one works under an employment contract in those establishments), healthcare workers providing non-permanent or permanent urgent medical aid (under their job description), healthcare workers working in pathology, forensic medicine and other units (providing their job is directly related with autopsies and examination of specimen taken from cadavers), in laboratories with pathogenic viral and bacterial agents of the third and fourth groups or with sources of ionising radiation, family (general practice) doctors, local therapists, local paediatricians, and nurses who work together—42 calendar days.
  2. Healthcare workers who work in psychiatric healthcare establishments, children’s homes for children with developmental disorders, educational establishments and social care establishments, psychologists who work in psychiatric healthcare establishments, children’s homes for children with developmental disorders, and social care establishments (save child care establishments), workers who perform social work in social care permanent establishments, psychiatric healthcare establishments, and children’s homes for children with developmental disorders—42 calendar days.”

Thus, according to the legal regulation established in the List, the annual leave of the 35-calendar-day duration was established for healthcare workers, save the healthcare workers specified in Items 5 and 6 of the List and the drivers working in ambulance service stations or departments—for them the annual leave of the 42-calendar-day duration was established.

3.3. On 29 April 2009, the Government adopted resolution No. 412, which is impugned in the constitutional justice case at issue. This resolution prescribes:

“1. To amend the List of the Employees of Certain Categories Who Have the Right to Extended Annual Leave and the Duration of This Leave, as approved by the Resolution (No. 941) of the Government of the Republic of Lithuania ‘On Approving the List of the Employees of Certain Categories Who Have the Right to Extended Annual Leave and the Duration of This Leave’ of 18 July 2003 (Official Gazette Valstybės žinios, 2003, No. 73-3375; 2004, No. 19-585):

1.1. To set forth Item 4 as follows:

‘4. The healthcare specialists rendering healthcare services as well as the workers who provide direct services to patients or work under the same conditions, who work in enterprises, establishments and organisations—35 calendar days.’

1.2. To recognise Item 5 as no longer valid.

1.3. To set forth Item 6 as follows:

‘6. Psychologists who work in social care establishments (save child care establishments) and children’s homes for children with developmental disorders, as well as workers who perform social work in social care permanent establishments and children’s homes for children with developmental disorders—42 calendar days.’

1.4. To recognise Item 16 as no longer valid.

  1. To recognise Item 1.3 of Resolution (No. 102) of the Government of the Republic of Lithuania ‘On Amending the Resolution (No. 941) of the Government of the Republic of Lithuania “On Approving the List of the Employees of Certain Categories Who Have the Right to Extended Annual Leave and the Duration of This Leave” of 18 July 2003’ of 2 February 2004 (Official Gazette Valstybės žinios, 2004, No. 19-585) as no longer valid. <...>”

Thus, after Item 5 (wording of 2 February 2004) and Item 16 (wording of 18 July 2003) of the List had been recognised as no longer valid, Items 4 and 6 (wording of 2 February 2004) of the List had been set out in their new wording, and Item 1.3 of government resolution No. 102 of 2 February 2004 had been recognised as no longer valid through government resolution of No. 412 of 29 April 2009, one repealed the legal regulation through which extended annual leave used to be established for healthcare workers of certain categories and the drivers working in ambulance service stations or departments. According to the legal regulation established in Item 4 (wording of 29 April 2009) of the List, with respect to those categories of healthcare workers for whom the previously valid legal regulations had established the annual leave of the 42-calendar-day duration was established, as well as with respect the drivers working in ambulance service stations or departments, the annual leave of the 36-calendar-day duration was established.

3.4. It has been mentioned that the petitioner requests investigation into whether government resolution No. 412 of 29 April 2009 is not in conflict with Paragraph 1 of Article 48 of the Constitution and Article 167 of the Labour Code (wording of 4 June 2002). While taking account of the fact that, as mentioned before, government resolution of 29 April 2009 amended the List of the Employees of Certain Categories Who Have the Right to Extended Annual Leave and the Duration of This Leave that had been approved by government resolution No. 941 of 18 July 2003—Item 5 (wording of 2 February 2004) and Item 16 (wording of 18 July 2003) of the List were recognised as no longer valid, Items 4 and 6 (wording of 2 February 2004) were set out in their new wording, Item 1.3 of government resolution No. 102 of 2 February 2004 was recognised as no longer valid—one needs to hold that the petitioner doubts whether Item 4 (wording of 29 April 2009) of the List as approved by government resolution No. 941 of 18 July 2003 is not in conflict with Paragraph 1 of Article 48 of the Constitution and Article 167 of the Labour Code (wording of 4 June 2002).

In addition, it is clear from the arguments of the petitioner that it doubts as regards the compliance of not entire Item 4 (wording of 29 April 2009) of the List as approved by government resolution No. 941 of 18 July 2003 with Paragraph 1 of Article 48 of the Constitution and Article 167 of the Labour Code (wording of 4 June 2002), but rather the compliance of the said item to the extent that it established the annual leave of the same duration to healthcare workers without taking into consideration the fact that at work employees of certain categories come under different nervous, emotional, and mental strain.

  1. Although the petitioner requests investigation into the compliance of Item 6 (wording of 29 April 2009) of the Procedure as approved by government resolution No. 1195 of 30 September 2003 and Item 4 (wording of 29 April 2009) of the List as approved by government resolution No. 941 of 18 July 2003 with Paragraph 1 of Article 48 of the Constitution, it is clear from the petition that the petitioner doubts the compliance of the said impugned legal regulation with not entire Paragraph 1 of Article 48 of the Constitution, but only with the said paragraph’s provision that each human being shall have the right to have proper, safe and healthy conditions at work.
  2. Taking account of the arguments set forth, in the constitutional justice case at issue the Constitutional Court will investigate whether:

– Item 6 (wording of 29 April 2009) of the Procedure as approved by government resolution No. 1195 of 30 September 2003, to the extent that it established the working week of the same duration to the healthcare specialists rendering healthcare services as well as for the workers who provide direct services to patients or work under the same conditions without taking into consideration the fact that at work employees of certain categories come under different mental and emotional strain, is not in conflict with the provision “[e]ach human being <…> shall have the right to have proper, safe and healthy conditions at work” of Paragraph 1 of Article 48 of the Constitution and Paragraph 2 (wording of 4 June 2002) of Article 145 of the Labour Code;

– Item 4 (wording of 29 April 2009) of the List as approved by government resolution No. 941 of 18 July 2003, to the extent that it established the annual leave of the same duration to the healthcare specialists rendering healthcare services as well as for the workers who provide direct services to patients or work under the same conditions without taking into consideration the fact that at work employees of certain categories come under different nervous, emotional, and mental strain, is not in conflict with the provision “[e]ach human being <…> shall have the right to have proper, safe and healthy conditions at work” of Paragraph 1 of Article 48 of the Constitution and Article 167 of the Labour Code (wording of 4 June 2002).

II

  1. It has been mentioned that in the constitutional justice case at issue it is investigated whether, to the specified extent, Item 6 (wording of 29 April 2009) of the Procedure as approved by government resolution No. 1195 of 30 September 2003 and Item 4 (wording of 29 April 2009) of the List as approved by government resolution No. 941 of 18 July 2003 are not in conflict with inter alia the provision “[e]ach human being <…> shall have the right to have proper, safe and healthy conditions at work” of Paragraph 1 of Article 48 of the Constitution.
  2. Paragraph 1 of Article 48 of the Constitution provides that each human being may freely choose a job or business, and shall have the right to have proper, safe and healthy conditions at work.

The Constitutional Court has held that the constitutional right to proper, safe and healthy working conditions means inter alia that every employee has the right to such working conditions (work environment, work character, the time of work and rest, tools of work, etc., are to be regarded as working conditions) which would not exert negative influence on his life, health, and which would be in line with the requirements of safety and hygiene (the Constitutional Court’s rulings of 9 April 2002, 29 April 2008, and 2 September 2009). Alongside, this constitutional right implies the duty of the employer to secure proper, safe, and healthy working conditions. It needs to be noted that the provision of Paragraph 1 of Article 48 of the Constitution, under which each human being shall have the right to have proper, safe and healthy conditions at work, implies also the duty of the state to establish the legal regulation, under which the legal preconditions to implement this right would be created (the Constitutional Court’s rulings of 29 April 2008, 2 September 2009, and 11 December 2009).

  1. In the context of the constitutional justice case at issue, the provision “[e]ach human being <…> shall have the right to have proper, safe and healthy conditions at work” of Paragraph 1 of Article 48 of the Constitution should be construed together with other provisions of the Constitution, inter alia Article 49 of the Constitution, which provides that each working human being shall have the right to rest and leisure as well as to an annual paid leave (Paragraph 1) and that the length of working time shall be established by law (Paragraph 2). In its ruling of 7 December 2007, the Constitutional Court held that “<...> [t]he 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.” The Constitutional Court has also noted that while establishing, in a law, the essential conditions of implementation of the constitutional right to the annual paid leave which stems from Paragraph 1 of Article 49 of the Constitution, one must consolidate such legal regulation that would ensure the possibility for the working persons to enjoy their such constitutional right in reality (the Constitutional Court’s ruling of 30 April 2013).
  2. The aforesaid provision of Paragraph 1 of Article 48 of the Constitution should be construed together with Paragraph 1 of Article 53 thereof, which prescribes: “The State shall take care of people’s health and shall guarantee medical aid and services for the human being in the event of sickness. The procedure for providing medical aid to citizens free of charge at State medical establishments shall be established by law.” While construing these provisions of the Constitution, the Constitutional Court has held that the health of a human being and of society is one of the most important values of society (the Constitutional Court’s rulings of 11 July 2002, 29 September 2005, and 2 September 2009). The protection of people’s health is a constitutionally important objective, a public interest, whereas looking after people’s health is to be treated as a state function (the Constitutional Court’s rulings of 14 January 2002, 26 January 2004, 29 September 2005, 2 September 2009, 11 December 2009, and 21 June 2011). The state has the duty to protect human beings from threats to health (to reduce dangers to health and in certain cases, as far as possible, to prevent them) (the Constitutional Court’s rulings of 2 September 2009, 11 December 2009, and 21 June 2011), to improve the ability of a person and society to overcome dangers to health, and to ensure access to medical services in case of illness (the Constitutional Court’s ruling of 2 September 2009).

From the provision “[e]ach human being <…> shall have the right to have proper, safe and healthy conditions at work” of Paragraph 1 of Article 48 of the Constitution, from Article 49 thereof, and from the provision “[t]he State shall take care of people’s health” of Paragraph 1 of Article 53 thereof arises the state duty to establish the legal regulation creating legal preconditions for the ensuring of the right of a human being to have proper, safe and healthy conditions at work, the right to rest and leisure as well as to an annual paid leave. In the context of the constitutional justice case at issue it should be noted that the said provisions of the Constitution imply a duty of the legislator to regulate by law the essential conditions for implementation of these rights, inter alia to define the working and rest time while taking into consideration the character and conditions of work, the maximum duration of the working time of the employees whose working hours are fixed, and to regulate the duration of an annual paid leave.

The provision “[e]ach human being <…> shall have the right to have proper, safe and healthy conditions at work” of Paragraph 1 of Article 48 of the Constitution, if construed in the context of Paragraph 2 of Article 49 and Paragraph 1 of Article 53 thereof, implies the discretion of the legislator to establish or to commission the Government or other law-making subject to establish for employees the guarantees for work and rest, inter alia the duration of working and rest time; while taking account of a working environment’s peculiarities that may be varied and depend on the character of activity, one should establish a differentiated duration of employees’ working and rest time. In the context of the constitutional justice case at issue it should be noted that the peculiarities of the working environment of healthcare workers are related inter alia to the specificity of illnesses, the state of health of patients, the character and intensity of rendered services, and with methods and measures utilised in the healthcare process. It should also be noted that the legal regulation on working and rest time may be amended in view of changes in the working environment and conditions.

  1. The provision “[e]ach human being <…> shall have the right to have proper, safe and healthy conditions at work” of Paragraph 1 of Article 48 of the Constitution is also related to the principle of the equality of rights of persons consolidated in Article 29 thereof.

While construing the provisions of Article 29 of the Constitution, the Constitutional Court has held more than once that the constitutional principle of the equality of all persons, which must be followed both in passing laws and applying them, as well as in administering justice, obliges one to legally assess homogenous facts in the same manner and prohibits from the arbitrary assessment of the facts that are the same in essence in a different manner, also that the constitutional principle of the equality of all persons means an innate human right to be treated equally with others, that it consolidates the formal equality of all persons and that it does not allow any discrimination of persons, nor does it allow granting them any privileges. In addition, the Constitutional Court has noted on more than one occasion that the constitutional principle of the equality of all persons does not deny a different (differentiated) legal regulation, established by law, with respect to certain categories of persons who are in different situations; the variety of social life may determine the manner and content of the legal regulation. The constitutional principle of the equality of persons does not deny the possibility of treating persons differently by taking account of their status or situation (inter alia the Constitutional Court’s rulings of 30 October 2008, 3 July 2012, and 22 February 2013). The constitutional principle of the equality of rights of persons would be violated if certain persons or groups thereof were treated in a different manner, even though there are not any differences in their character and extent between these groups that such an uneven treatment could be objectively justified (inter alia the Constitutional Court’s rulings of 6 February 2012, 27 February 2012, and 22 February 2013). While assessing whether an established different legal regulation is grounded, one must take into account concrete legal circumstances; first of all, differences in the legal situation of the subjects and objects to which the different legal regulation is applied must be considered (inter alia the Constitutional Court’s decision of 20 April 2010, the rulings of 29 June 2010, 6 February 2012, and 22 February 2013).

  1. The legislator, while carrying out its duty arising from the Constitution to establish the essential conditions for the constitutional rights to work and rest, must heed the imperatives arising from the provision “[e]ach human being <…> shall have the right to have proper, safe and healthy conditions at work” of Paragraph 1 of Article 48 of the Constitution, from Article 49 and Paragraph 1 of Article 53 thereof, and must heed the constitutional principle of the equality of rights as well as the constitutional principle of a state under the rule of law.

The Constitutional Court has held more than once that the constitutional principle of a state under the rule of law is especially capacious; it comprises a range of various interrelated imperatives. The constitutional principle of a state under the rule of law must be followed both in law-making and the implementation of law.

The principle of a state under the rule of law entrenched in the Constitution implies the hierarchy of legal acts. In its acts, the Constitutional Court has held the following on more than one occasion: this constitutional principle does not permit that sub-statutory legal acts establish any such legal regulation which would compete with that established in the law; sub-statutory legal acts may not be in conflict with laws, constitutional laws and the Constitution; sub-statutory legal acts must be adopted on the basis of laws; a sub-statutory legal act is an act of application of norms of the law, irrespective of whether the act is of one-time (ad hoc) application or of permanent validity (inter alia the Constitutional Court’s rulings of 6 September 2007, 9 March 2010, 18 April 2012, and 20 February 2013).

  1. Under Item 12 of Article 94 of the Constitution, the Government shall execute laws and resolutions of the Seimas on the implementation of the laws as well as the decrees of the President of the Republic. While construing this provision, the Constitutional Court has held on more than one occasion that, under the Constitution, the Government, while adopting legal acts, must follow the valid laws and, while enforcing certain laws, it may not violate other laws (the Constitutional Court’s rulings of 31 May 2006, 13 August 2007, and 24 October 2012).

III

On the compliance of Item 6 (wording of 29 April 2009) of the Procedure for the Reducing of the Working Time of the Employees Whose Work Involves Greater Mental and Emotional Strain as approved by government resolution No. 1195 of 30 September 2003 with Paragraph 1 of Article 48 of the Constitution and Paragraph 2 of Article 145 of the Labour Code.

  1. It has been mentioned that in the constitutional justice case at issue, subsequent to the petitioner’s petition, one is investigating whether Item 6 (wording of 29 April 2009) of the Procedure as approved by government resolution No. 1195 of 30 September 2003, to the extent that it established the working week of the same duration to the healthcare workers without taking into consideration the fact that at work employees of certain categories come under different mental and emotional strain, is not in conflict with the provision “[e]ach human being <…> shall have the right to have proper, safe and healthy conditions at work” of Paragraph 1 of Article 48 of the Constitution and Paragraph 2 (wording of 4 June 2002) of Article 145 of the Labour Code.
  2. According to the petitioner, the legal regulation consolidated in Item 6 (wording of 29 April 2009) of the Procedure, as approved by government resolution No. 1195 of 30 September 2003, which established, with respect to the healthcare workers who come under the greatest mental and emotional strain at work, the working week of the same duration as for the rest healthcare workers, violates the provisions of the Constitution and of the Labour Code.
  3. It has been mentioned that the preamble to government resolution No. 1195 of 30 September 2003, through which the Procedure was approved, points out that it was adopted pursuant to inter alia Paragraph 2 of Article 145 of the Labour Code. It has also been mentioned that Paragraph 2 (wording of 4 June 2002) of Article 145 of the Labour Code provides that shorter working time for employees whose work involves greater mental and emotional strain shall be established by the Government.

The legal regulation established in Paragraph 2 (wording of 4 June 2002) of Article 145 of the Labour Code is to be construed in the context of the other provisions of the Labour Code through which working time is regulated.

Item 5 of Paragraph 1 of Article 4 “Labour Laws and other Normative Acts” of the Labour Code (wording of 4 June 2002) provides that labour laws shall establish the maximum duration of working time and the minimum norms of rest periods.

The maximum duration of working time is defined in Article 144 “Duration of working time” of the Labour Code (wording of 4 June 2002). Paragraphs 1–4 of the said article prescribe:

“1. Working time may not exceed forty hours per week.

  1. The duration of daily working time must not exceed 8 working hours. Exceptions may be established by laws, government resolutions and collective agreements.
  2. Maximum working time, including overtime, must not exceed 48 hours per 7 days.
  3. The working time of specific categories of employees (of health care, care (custody), child care institutions, energy, specialised communications services and specialised accident containment services, as well as other services on standby duty, etc.) as well as of watchmen on premises may be up to 24 hours per day. The average working time of such employees must not exceed 48 hours per seven-day period, and the rest period between working days must not be shorter than 24 hours. The list of such jobs shall be approved by the Government.”

Thus, Article 144 of the Labour Code prescribes the maximum daily and weekly working time.

Paragraph 2 (wording of 12 May 2005) of Article 4 of the Labour Code (wording of 4 June 2002) prescribes: “The Government, other state and municipal institutions shall have the right to adopt, within their respective competence, normative acts on the issues relating to the regulation of employment relationships. The Government may not adopt normative acts putting employees in a worse position as compared to that established by this Code and other labour laws. The provisions of normative acts of other state and municipal institutions putting employees in a worse position as compared to that established by this Code and other labour laws shall be null and void.”

Thus, legal acts of lower power, inter alia government resolutions, may not establish a longer duration of daily and weekly working time than that established in the Labour Code; such acts may establish only shorter working time.

The legal regulation established in Paragraph 2 (wording of 4 June 2002) of Article 4 of the Labour Code, when in its construed in the context of Item 5 of Paragraph 1 and Paragraph 2 of Article 4 and Article 144 of the Labour Code (wording of 4 June 2002), has granted the powers to the Government to establish a procedure for the reducing of the working time of the employees whose work involves greater mental and emotional strain, inter alia to establish the categories of employees whose work involves greater mental and emotional strain and the duration of the working time of such employees, which must be shorter than the maximum working time established in Article 144 of the Labour Code.

  1. It should be noted that one must construe the norms of the Labour Code while taking into account not only the system and structure of the Labour Code in order to ensure its integrity and the compatibility of its separate parts, but also the purposes and tasks of the code and of the construed provision (Paragraphs 1 and 3 of Article 10 of the Labour Code (wording of 4 June 2002)).

It should also be noted that the provision of safe and healthy working conditions is one of the principles of the legal regulation of employment relations (Item 5 of Paragraph 1 of Article 2 of the Labour Code (wording of 4 June 2002)). The uniformity of labour laws and their differentiation on the basis of working conditions is also a principle of the legal regulation of employment relations (Item 9 of Paragraph 1 of Article 2 of the Labour Code (wording of 4 June 2002)).

The legal regulation established in Paragraph 2 (wording of 4 June 2002) of Article 145 of the Labour Code, when it is construed in the context of the legal regulation of the aforesaid principles of employment relations, creates preconditions for the ensuring of proper, safe and healthy working conditions for the employees whose work involves greater mental and emotional strain.

  1. It has been mentioned that, according to the Constitution, when differentiated duration of employees’ working and rest time is established, one must take into consideration the peculiarities of the working environment. Consequently, the legal regulation established in Paragraph 2 of Article 145 of the Labour Code (wording of 4 June 2002) means that, in order to secure the implementation of the employees’ right to have proper, healthy and safe working conditions, the duration of shorter working time must be differentiated in view of the mental and emotional strain experienced at work. When the legal regulation established in Paragraph 2 of Article 145 of the Labour Code (wording of 4 June 2002) is construed in such a manner, preconditions are also created for the securing of the human right to have proper, safe and healthy working conditions as consolidated in Paragraph 1 of Article 48 of the Constitution.

Thus, the Government, while implementing the requirement established in Paragraph 2 of Article 145 of the Labour Code (wording of 4 June 2002), must differentiate the duration of working time in view of the mental and emotional strain experienced by the employees at work. In addition, as mentioned before, the legal regulation on working and rest time may be amended in view of changes in the working environment and conditions. Inter alia installation of new technologies, changes in the safety of the place at work, when these changed conditions determine reduction of the mental and emotional strain experienced by an employee, may exert influence on amendments to the legal regulation governing the working time.

  1. It has been mentioned that the peculiarities of the working environment of healthcare workers are related inter alia to the specificity of illnesses, the state of health of patients, the character and intensity of rendered services, and with methods and measures utilised in the healthcare process. Alongside, it needs to be noted that the character of work and the working environment (directly influencing the mental and emotional strain experienced at work) of healthcare workers of certain categories are substantially different from the character of work and the working environment of the healthcare workers of other categories. Therefore, to implement the legal regulation established in Paragraph 2 of Article 145 of the Labour Code (wording of 4 June 2002) and to seek to ensure the implementation of the right of healthcare workers to have proper, healthy, and safe working conditions, the duration of the working time of healthcare workers of certain categories must be different in view of the mental and emotional strain experienced by them at work.
  2. It has also been mentioned that after government resolution No. 411 of 29 April 2009 had set forth Item 6 (wording of 30 September 2003) of the Procedure in its new wording and had recognised Items 7, 8, 9 (wording of 30 September 2003) and 81 (wording of 23 October 2003) of the Procedure as well as government resolution No. 1328 of 23 October 2003 as no longer valid, a 38-hour working week was established for healthcare workers (Item 6 (wording of 29 April 2009) of the Procedure).

The duration of the working week for healthcare workers established in Item 6 (wording of 29 April 2009) of the Procedure, as approved by government resolution No. 1195 of 30 September 2003, is shorter than the one established in Paragraph 1 of Article 144 of the Labour Code (wording of 4 June 2002), however, it is not differentiated according to the mental and emotional strain experienced by healthcare workers of certain categories.

Thus, the legal regulation established in Item 6 (wording of 29 April 2009) of the Procedure, as approved by government resolution No. 1195 of 30 September 2003, according to which the working week of the same duration is fixed for healthcare workers with disregard to the fact that the healthcare workers of certain categories come under different mental and emotional strain, is in conflict with Paragraph 2 (wording of 4 June 2002) of Article 145 of the Labour Code.

  1. It has been mentioned that, under the Constitution, the Government, while issuing legal acts, must observe valid laws. Having held that Item 6 (wording of 29 April 2009) of the Procedure, as approved by government resolution No. 1195 of 30 September 2003, is in conflict, to some extent, with Paragraph 2 (wording of 4 June 2002) of Article 145 of the Labour Code, one is also to hold that the said legal regulation is in conflict with Item 2 of Article 94 of the Constitution and the constitutional principle of a state under the rule of law.
  2. Taking account of the arguments set forth, one should draw a conclusion that Item 6 (wording of 29 April 2009) of the Procedure as approved by government resolution No. 1195 of 30 September 2003, to the extent that it established the working week of the same duration to the healthcare specialists rendering healthcare services as well as for the workers who provide direct services to patients or work under the same conditions without taking into consideration the fact that at work employees of certain categories come under different mental and emotional strain, is in conflict with Item 2 of Article 94 of the Constitution, the constitutional principle of a state under the rule of law, and Paragraph 2 (wording of 4 June 2002) of Article 145 of the Labour Code.
  3. Having held that, the Constitutional Court will further not investigate whether Item 6 (wording of 29 April 2009) of the Procedure, as approved by government resolution No. 1195 of 30 September 2003, is not in conflict, to some extent, with the provision “[e]ach human being <…> shall have the right to have proper, safe and healthy conditions at work” of Paragraph 1 of Article 48 of the Constitution.

IV

On the compliance of Item 4 (wording of 29 April 2009) of the List of the Employees of Certain Categories Who Have the Right to Extended Annual Leave and the Duration of This Leave, as approved by government resolution No. 941 of 18 July 2003, with Paragraph 1 of Article 48 of the Constitution and Article 167 of the Labour Code.

  1. It has been mentioned that in the constitutional justice case at issue, subsequent to the petitioner’s petition, one is investigating whether Item 4 (wording of 29 April 2009) of the List as approved by government resolution No. 941 of 18 July 2003, to the extent that it established the annual leave of the same duration without taking into consideration the fact that at work employees of certain categories come under different nervous, emotional, and mental strain, is not in conflict with the provision “[e]ach human being <…> shall have the right to have proper, safe and healthy conditions at work” of Paragraph 1 of Article 48 of the Constitution and Article 167 of the Labour Code (wording of 4 June 2002).
  2. According to the petitioner, the legal regulation consolidated in Item 4 (wording of 29 April 2009) of the List, as approved by government resolution No. 941 of 18 July 2003, which established, with respect to the healthcare workers who come under the greatest nervous, mental and emotional strain at work, the annual leave of the same duration as for the other healthcare workers, violates the right to safe and healthy conditions consolidated in Paragraph 1 of Article 48 of the Constitution and the provisions of Article 167 of the Labour Code.
  3. It has been mentioned that the preamble to government resolution No. 941 of 18 July 2003 through which the List was approved points out that it was adopted on the grounds of Article 167 of the Labour Code (wording of 4 June 2002). It has also been mentioned that Article 167 of the Labour Code (wording of 4 June 2002) prescribes: “Extended annual leave up to fifty eight calendar days shall be granted to certain categories of employees whose work involves greater nervous, emotional and mental strain and professional risk, as well as to those employees who work in specific working conditions. The Government shall approve a list of categories of employees who are entitled to the extended leave and shall define therein the specific duration of the extended leave for each category of employees.”

The legal regulation established in Article 167 of the Labour Code (wording of 4 June 2002) is to be construed in the context of the other provisions of the Labour Code through which working time is regulated.

Item 5 of Paragraph 1 of Article 4 “Labour Laws and other Normative Acts” of the Labour Code (wording of 4 June 2002) provides that labour laws shall establish the maximum duration of working time and the minimum norms of rest periods.

Article 156 of the Labour Code (wording of 4 June 2002) defines rest time as the time free from work, regulated by law, a collective agreement or a contract of employment. According to the Labour Code (wording of 4 June 2002), leave is one of the categories of rest time (Item 5 of Article 157). According to Article 164 “Types of Leave” of the Labour Code (wording of 4 June 2002), leave may be an annual leave and a special-purpose leave.

Annual leave is regulated through Article 165 of the Labour Code (wording of 4 June 2002) that prescribes:

“1. Annual leave shall be a period calculated in calendar days granted to an employee for rest and rehabilitation of working capacity, whereby his job (position) and the average wage is retained. The public holidays referred to in Article 162 of this Code shall not be included in the period of annual leave.

  1. Annual leave shall be minimum, extended and additional.”

Minimum annual leave is defined in Article 166 of the Labour Code (wording of 4 June 2002). Paragraph 1 of the same article provides that the period of the minimum annual leave shall be 28 calendar days. According to Items 1, 4 and 2, 3 (wording of 30 June 2005) of Paragraph 2 (wording of 12 May 2005) of the same article, the minimum annual 35-calendar-day leave shall be granted to: 1) employees under eighteen years of age; 2) employees who are alone raising a child under fourteen years of age or a disabled child under eighteen years of age; 3) disabled persons; 4) other persons specified by laws.

Thus, Paragraph 1 of Article 166 of the Labour Code (wording of 4 June 2002) establishes the period of the minimum annual leave—28 calendar days; longer minimum annual leave, i.e. that of 35 calendar days, is only granted to employees under eighteen years of age, employees who are alone raising a child under fourteen years of age or a disabled child under eighteen years of age, disabled persons, and other persons specified by laws.

Paragraph 2 (wording of 12 May 2005) of Article 4 of the Labour Code (wording of 4 June 2002) prescribes: “The Government, other state and municipal institutions shall have the right to adopt, within their respective competence, normative acts on the issues relating to the regulation of employment relationships. The Government may not adopt normative acts putting employees in a worse position as compared to that established by this Code and other labour laws. The provisions of normative acts of other state and municipal institutions putting employees in a worse position as compared to that established by this Code and other labour laws shall be null and void.”

Thus, legal acts of lower power, inter alia government resolutions, may not establish any shorter minimum annual leave than that established in the Labour Code.

The legal regulation established in Article 167 of the Labour Code (wording of 4 June 2002), if it is construed in the context of Item 5 of Paragraph 1 and Paragraph 2 of Article 4 and Article 166 of the Labour Code, grants the powers to the Government, where one takes account of such criteria as nervous, emotional, and mental strain experienced at work, professional risk, specific working conditions, to establish a list of employees who are granted extended annual leave and the concrete duration of such leave, which must be longer than the period of the minimum annual leave established in Paragraph 1 of Article 166 of the Labour Code and must not exceed 58 calendar days.

  1. It has been mentioned that one must construe the norms of the Labour Code while taking into account not only the system and structure of the Labour Code in order to ensure its integrity and the compatibility of its separate parts, but also the purposes and tasks of the code and the construed provision (Paragraphs 1 and 3 of Article 10 of the Labour Code (wording of 4 June 2002)).

It has also been mentioned that the provision of safe and healthy working conditions is one of the principles of the legal regulation of employment relations (Item 5 of Paragraph 1 of Article 2 of the Labour Code (wording of 4 June 2002)); the uniformity of labour laws and their differentiation on the basis of the working conditions and the psychophysical qualities of employees is also a principle of the legal regulation of employment relations (Item 9 of Paragraph 1 of Article 2 of the Labour Code (wording of 4 June 2002)).

The legal regulation established in Article 167 of the Labour Code (wording of 4 June 2002), when it is construed in the context of the aforesaid principles of the legal regulation governing the employment relations, creates preconditions for the ensuring of proper, safe and healthy working conditions for the employees whose work involves greater nervous, emotional, and mental strain.

  1. It has been mentioned that, according to the Constitution, when differentiated duration of employees’ working and rest time is established, one must take into consideration the peculiarities of the working environment. Consequently, according to the legal regulation established in Article 167 of the Labour Code (wording of 4 June 2002), in order to secure the implementation of the employees’ right to have proper, healthy and safe working conditions, the duration of extended annual leave must be differentiated inter alia in view of the nervous, emotional, and mental strain experienced at work. When the legal regulation established in Article 167 of the Labour Code (wording of 4 June 2002) is construed in such a manner, preconditions are created to secure also the human right to have proper, safe and healthy working conditions as consolidated in Paragraph 1 of Article 48 of the Constitution.

Thus, the Government, while implementing the provisions of Article 167 of the Labour Code (wording of 4 June 2002), should have differentiated the duration of extended annual leave in view of inter alia the nervous, emotional, and mental strain experienced by the employees at work. In addition, as mentioned before, the legal regulation on working and rest time may be amended in view of changes in the working environment and conditions. Inter alia changes in the intensity of work, installation of new technologies, when such changed conditions determine a reduction in the nervous, emotional, and mental strain experienced by an employee, may exert influence on amendments to the legal regulation governing the rest time.

  1. It has been mentioned that the peculiarities of the working environment of healthcare workers are related inter alia to the specificity of illnesses, the state of health of patients, the character and intensity of rendered services, and with methods and measures utilised in the healthcare process. Alongside, it needs to be noted that the character of work and the working environment (directly influencing the nervous, mental, and emotional strain experienced at work) of healthcare workers of certain categories are substantially different from the character of work and the working environment of the healthcare workers of other categories. Therefore, to implement the legal regulation established in Article 167 of the Labour Code (wording of 4 June 2002) and to seek to ensure the implementation of the right of healthcare workers to have proper, healthy, and safe working conditions, the duration of annual leave of healthcare workers of certain categories must be different in view of the nervous, mental, and emotional strain experienced by them at work.
  2. It has also been mentioned that, after Item 5 (wording of 2 February 2004) and Item 16 (wording of 18 July 2003) of the List had been recognised as no longer valid, Items 4 and 6 (wording of 2 February 2004) of the List had been set out in their new wording, and Item 1.3 of government resolution No. 102 of 2 February 2004 had been recognised as no longer valid through government resolution of No. 412 of 29 April 2009, a 36-calendar-day annual leave was established for healthcare workers (Item 4 of the List (wording of 29 April 2009)).

The duration of the annual leave for healthcare workers established through Item 4 (wording of 29 April 2009) of the List, as approved by government resolution No. 941 of 18 July 2003, is longer than the duration of the minimum annual leave established in Paragraph 1 of Article 166 of the Labour Code (wording of 4 June 2002), however, it is not differentiated according to the nervous, emotional, and mental strain experienced by the healthcare workers of certain categories.

Thus, the legal regulation established in Item 4 (wording of 29 April 2009) of the List, as approved by government resolution No. 941 of 18 July 2003, according to which the annual leave of the same duration is fixed for healthcare workers with disregard to the fact that the healthcare workers of certain categories come under different nervous, emotional, and mental strain, is in conflict with Article 167 of the Labour Code (wording of 4 June 2002).

  1. It has been mentioned that, under the Constitution, the Government, while issuing legal acts, must observe valid laws. Having held that Item 4 (wording of 29 April 2009) of the List, as approved by government resolution No. 941 of 18 July 2003, is in conflict, to some extent, with of Article 167 of the Labour Code (wording of 4 June 2002), one is also to hold that the said legal regulation is in conflict with Item 2 of Article 94 of the Constitution and the constitutional principle of a state under the rule of law.
  2. Taking account of the arguments set forth, one needs to draw a conclusion that Item 4 (wording of 29 April 2009) of the List as approved by government resolution No. 941 of 18 July 2003, to the extent that it established the annual leave of the same duration to the healthcare specialists rendering healthcare services as well as for the workers who provide direct services to patients or work under the same conditions without taking into consideration the fact that at work employees of certain categories come under different nervous, emotional, and mental strain, is in conflict with of Item 2 of Article 94 of the Constitution and Article 167 of the Labour Code (wording of 4 June 2002).
  3. Having held that, the Constitutional Court will further not investigate whether Item 4 (wording of 29 April 2009) of the List as approved by government resolution No. 941 of 18 July 2003, is not in conflict, to some extent, with the provision “[e]ach human being <…> shall have the right to have proper, safe and healthy conditions at work” of Paragraph 1 of Article 48 of the Constitution.

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:

  1. To recognise that Item 6 (wording of 29 April 2009; Official Gazette Valstybės žinios, 2009, No. 60-2353) of the Procedure for the Reducing of the Working Time of the Employees Whose Work Involves Greater Mental and Emotional Strain, as approved by the Resolution (No. 1195) of the Government of the Republic of Lithuania “On Approving the Procedure for the Reducing of the Working Time of the Employees Whose Work Involves Greater Mental and Emotional Strain and on Approving the Conditions for Remuneration for Work for the Employees to Whom Shorter Working Time Is Established” of 30 September 2003, to the extent that it established the working week of the same duration to the healthcare specialists rendering healthcare services as well as for the workers who provide direct services to patients or work under the same conditions without taking into consideration the fact that at work employees of certain categories come under different mental and emotional strain, is in conflict with Item 2 of Article 94 of the Constitution of the Republic of Lithuania, the constitutional principle of a state under the rule of law, and Paragraph 2 of Article 145 of the Labour Code of the Republic of Lithuania (wording of 4 June 2002).
  2. To recognise that Item 4 (wording of 29 April 2009; Official Gazette Valstybės žinios, 2009, No. 60-2354) of the List of the Employees of Certain Categories Who Have the Right to Extended Annual Leave and the Duration of This Leave, as approved by the Resolution (No. 941) of the Government of the Republic of Lithuania “On Approving the List of the Employees of Certain Categories Who Have the Right to Extended Annual Leave and the Duration of This Leave” of 18 July 2003, to the extent that it established the annual leave of the same duration to the healthcare specialists rendering healthcare services as well as for the workers who provide direct services to patients or work under the same conditions without taking into consideration the fact that at work employees of certain categories come under different nervous, emotional, and mental strain, is in conflict with of Item 2 of Article 94 of the Constitution of the Republic of Lithuania and Article 167 of the Labour Code of the Republic of Lithuania (wording of 4 June 2002).

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

Justices of the Constitutional Court:                         Egidijus Bieliūnas

                                                                                             Toma Birmontienė

                                                                                             Pranas Kuconis

                                                                                             Gediminas Mesonis

                                                                                             Ramutė Ruškytė

                                                                                             Egidijus Šileikis

                                                                                             Algirdas Taminskas

                                                                                             Romualdas Kęstutis Urbaitis

                                                                                             Dainius Žalimas