The comparative analysis of women's status in labor relations in modern Slovakia and the Czech Republic

Hamul'ák, Juraj; Freel, Lenka; Nevická, Denisa Article The comparative analysis of women's status in labor relations in modern Slovakia and the Czech Republic DANUBE: Law, Economics and Social Issues Review Provided in Cooperation with: European Association Comenius (EACO), Brno Suggested Citation: Hamul'ák, Juraj; Freel, Lenka; Nevická, Denisa (2020) : The comparative analysis of women's status in labor relations in modern Slovakia and the Czech Republic, DANUBE: Law, Economics and Social Issues Review, ISSN 1804-8285, De Gruyter, Warsaw, Vol. 11, Iss. 3, pp. 214-227, https://doi.org/10.2478/danb-2020-0012 This Version is available at: https://hdl.handle.net/10419/242168 Standard-Nutzungsbedingungen: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden. 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If the documents have been made available under an Open Content Licence (especially Creative Commons Licences), you may exercise further usage rights as specified in the indicated licence. https://creativecommons.org/licenses/by-nc-nd/4.0 THE COMPARATIVE ANALYSIS OF WOMEN’SSTATUS IN LABOR RELATIONS IN MODERN SLOVAKIA AND THE CZECH REPUBLIC Juraj Hamuľák1, Lenka Freel2, Denisa Nevická3 Abstract In this article, the authors deal with the issue of the women’s status in labor relations both in the Czech Republic and Slovakia. The authors examined the regulation of the position of women in labor law regulations and compared their results, trying to answer the main question – In which state is it better to work for women after the breakup of Czechoslovakia? Methods of analysis, comparison and synthesis were used. By examiningscientifictexts andlegislation, weretheauthors ableto articulatecomprehensive conclusions, not only from the labor law perspective, but also taking into consideration antidiscrimination regulations. The authors reached a conclusion that labor regulations in the Czech Republic are slightly more favorable for women than in the Slovak Republic. Keywords Women, Employer, Employee, Labor Relations, Dependant Work I. Introduction Contemporary society places high demands on women compared to the past. A woman is required to perform a variety of roles, especially professional, social but also family ones. The balance between the private and working life of a woman is therefore a key factor in enabling a modern woman to reconcile work and family responsibilities. However, their reconciliation is often problematic and is the subject of various debates. In our opinion, the most difficult period is when a woman in the position of an employee has to combine childcare with labor duties. It is therefore the task of the company policy as well as of labor law to strive to ensure that the participation of a woman in the work process does not cause negative fulfillment of her maternal role and family status. We believe, that it 1The Comenius University in Bratislava, Šafaríkovo sq. No. 6, 810 00 Bratislava, The Slovak Republic. E-mail: [email protected]. 2The Comenius University in Bratislava, Šafaríkovo sq. No. 6, 810 00 Bratislava, The Slovak Republic. E-mail: [email protected]. 3The Comenius University in Bratislava, Šafaríkovo sq. No. 6, 810 00 Bratislava, The Slovak Republic. E-mail: [email protected]. DANUBE: Law, Economics and Social Issues Review, 11 (3), 214–227 DOI: 10.2478/danb-2020-0012 215 is necessary to regard a woman not only as a subject of labor law but also as a subject of family life of her own choice, and to enable her to combine her labor obligations with family responsibilities, regardless of whether she chooses a standard or non-standard family model. Based on the above stated, we consider it essential to open a discussion on the topic of the position of women in labor relations in post-communist countries. We are convinced that the analysis and subsequent comparison of the position of women in labor relations in the Slovak Republic and the Czech Republic will point to many problems and provide guidance for the future of improving the position of women. The main contribution will be the analysis of individual labor law institutes, their comparison and recommendations and improvement of the legal regulation de lege ferenda. II. The Status of Women in Labor Relations in Former Czechoslovakia The position of women in labor relations was not historically natural. The role of women in society has always been seen as the role of the mother, the caregiver and the person responsible for the household. The lack of manpower in factories in Czechoslovakia in the 1950s forced the socialist society’s lawmakers to move men from agricultural and light industrial work to heavy industry, causing labor shortages in these sectors. The absence of workers was compensated precisely by the deployment of women in agriculture and light industry, which shaped the beginnings of women’s inclusion in a wider range of labor relations in the socialist regime.4 It can be stated that the 1950s of socialism in Czechoslovakia were in the spirit of enabling women to engage in work, politics or education. The 1948 Constitution guaranteed not only equality of participation in work for the Socialist Republic, but also equal pay for equal work for men and women. Unlike women in Western European countries, women in socialist Czechoslovakia were guaranteed direct access to work. Despite the formal arrangements and labor law acts, it can be stated that in practice there was no equal access to work for women and men. Women were mainly engaged in light and auxiliary work and, in addition to their labor duties, were fully responsible for the care of the household and the family without any advantage (Hanáková, Havelková, Oates-Indruchová, 2015). Under the influence of social, political and economic changes, the 1948 Constitution also enacted the regulation of the working conditions of pregnant women and mothers during their employment. The legislation contained provisions on nursing breaks or accompanying a child to a nursery or kindergarten (Chynský, 1960). On the constitutional level, very importantwasthe provisionof §26section 3of the 1948Constitution:“Women are entitled to special arrangements for working conditions with regard to pregnancy, maternity and childcare.” The above provision was followed by the general formulation of §29 section 4: “protection of life and health at work is ensured in particular by state supervision and regulations on workplace safety measures.” 4Institute for the Study of Totalitarian Regimes (2008–2015). 216 Juraj Hamuľák, Lenka Freel, Denisa Nevická: The Comparative Analysis of Women’s Status in Labor Relations in Modern Slovakia and the Czech Republic An important stage in the development of the legal status of women is associated with the adoption of Constitutional Act no. 100/1960 Coll. – Constitution of the Czechoslovak Socialist Republic, Article 27 of which provided for special arrangements for working conditions during pregnancy and maternity. In accordance with Art. 27 The Constitution of the Czechoslovak Socialist Republic: “Equal employment of women in family, work and public activities is ensured by special regulations of working conditions and special health care during pregnancy and maternity, also by the development of facilities and services enabling women to use all abilities for participation in society.” Further regulations were based on the aforementioned constitutional law. By Act no. 58/1964 Coll. on increased care for pregnant women and mothers, women were given equal opportunities in family and public life. The maternity leave period was set to 22 weeks and after that women were guaranteed the right to an additional maternity leave until the child reaches one year of age. The employer was obliged to provide breastfeeding breaks with wage compensation. The law also prohibited the immediate termination of employment. This could only be terminated exceptionally, for example in case of gross violation of work discipline, organizational changes, and sentence of imprisonment for at least one year. The law also provided protection for women when being transferred or temporarily assigned to a place of work outside her previous activities. Since 1962, codification of labor law began preparation. In January 1963, the Central Council of Trade Unions presented the principles of the Labor Code of the Czechoslovak Socialist Republic. As regards the specific working conditions of women, the codified legislation was characterized, for example, by the prohibition of night work, which also applied to mothers of children under three years of age, a prohibition on business trips and transfers, which, in addition to pregnant women, also applied to women with a child under nine months and maternity leave was to be granted for 26 weeks. In 1965, a comprehensive Socialist Labor Code was adopted, which, after its entry into force in 1966, guaranteed the legal equality of both sexes in labor relations. Working conditions of women and adolescents were regulated in the seventh head, considering the physiological conditions, the role of parenthood and motherhood. Employers were obliged to take care of the hygienic conditions of the workplaces and to set up cr` eches and kindergartens. Works that could not be performed by women, mandatory rest between two changes, or entitlement to maternity and parental leave were established. The period of paid maternity leave reached the duration of 26 weeks in 1968, since 1971 the maternity allowance for further childcare could be drawn up to the age of 3 of the child (Koldinská, 2010). It was a relatively modern social security system, which was provided exclusively to women, men were not entitled to it. However, it can be assumed that the primary role of the protective provisions of labor and social security regulations was to increase birth rates and employment, not to protect women (Koldinská, 2010). Until 1989, labor law in the field of women’s status had not undergone major changes. But how has the situation changed in the modern Czech Republic and Slovakia? In which country is the position of a woman in labor relations more favorable? The authors will try to answer these research questions in the following sections of the article. DANUBE: Law, Economics and Social Issues Review, 11 (3), 214–227 DOI: 10.2478/danb-2020-0012 217 III. The Status of Women in Labor Relations in the Czech Republic The principle of equal treatment is an essential rule for in any democratic legislation with regard to the women’s status (Jouza, 2017). Unlike the Slovak law no. 311/2001 Coll. – The Labor Code (hereinafter referred to as the “Slovak Labor Code” or “LC SR”), which lays down the basic principles of labor law in the introductory provisions (Barancová, 2014), in Czech Act no. 262/2006 Coll. – The Labor Code (hereinafter referred to as the “Czech Labor Code” or “LC CR”) are these principles not directly stated in the introductory provisions. We find them scattered in the individual heads of the Czech Labor Code. In Section 16 of the LC CR, are provision guaranteeing the principle of equal treatment, the prohibition of discrimination on grounds of sex and other demonstratively defined reasons enshrined, and at the same time this section refers to the Czech Anti-Discrimination Act. Unlike the Slovak Labor Code, the Czech Labor Code explicitly stipulates that discrimination on grounds of pregnancy, maternity, paternity or sexual identification is considered discrimination on grounds of sex. The Slovak Labor Code does not enshrine such rule, but this issue is regulated in Act No. 365/2004 Coll. – Anti-discrimination Act (hereinafter referred to as “Slovak ADA”). Both codes are based on the principle of equal treatment primarily based on the principles and decisions proclaimed by the Court of Justice of the European Union (see e.g. C-13/94 P in the S and Cornwall County Council), other European regulations and directives. Another basic legislation in the Czech Republic is Act No. 198/2009 Coll. – Anti-discrimination Act (hereinafter referred to as “Czech ADA”). The authors state that the legislation is almost identical to the Slovak one, as it is based primarily on European Union regulations and declares equality of both sexes as well as the admissibility and necessity of protecting women due to pregnancy and maternity. Therefore, both countries have fundamental antidiscrimination principles set at a comparable level, also with regard to the membership of both countries in the European Union. As in many European Union countries (Barancová, 2003), in the Czech Republic, the primary protection of a woman in labor relations is based on her biological status as a mother and a person who cares for the child. The Czech Labor Code does not stipulate that a woman is a materially weaker subject than a man in labor relations (Čermák, 2018). The provision regulating the right to equality of men and women in remuneration, thus emphasizing gender differences, is typical for many legal systems, but it is absent in the Czech Labor Code as well as in Czech ADA. This rule is regulated only in general as the right to equal remuneration for equal work or work of equal value. However, the Czech Labor Code regulates a large number of provisions that protect a woman more extensively than a comparable employee in case of maternity or pregnancy. Pursuant to Section 41 of the Czech Labor Code, the employer is obliged to transfer a woman who is pregnant, breastfeeding or who is within the ninth month of childbirth and performs work that she is not allowed to perform in accordance with legal regulations or medical opinion to a work suitable for her. The same obligation applies to such a woman working at night and requesting a transfer. In this case the employer must act at her request and cannot require a medical opinion. Another provision that provides protection for pregnant 218 Juraj Hamuľák, Lenka Freel, Denisa Nevická: The Comparative Analysis of Women’s Status in Labor Relations in Modern Slovakia and the Czech Republic women, women on maternity leave or women and men on parental leave is the Section 53 of the Czech Labor Code. Such employees are subject to a ban on dismissal as they are in protective period (Náhlíková Kaletová, 2018). This prohibition does not apply neither in the Czech Republic nor in Slovakia when an employee is dismissed due to winding up of a legal entity of an employer. Similarly, the prohibition of dismissal does not apply to termination of employment during a probationary period, termination of employment by agreement, or termination of employment for a definite period of time after the expiry of that period (Poruban, 2013). Pursuant to the Section 55 of the Czech Labor Code an employer cannot immediately terminate an employment relationship with a pregnant employee, an employee on maternity leave or parental leave. As is clear from the provisions at issue, termination of employment with a pregnant woman or a woman who cares for a small child is legally almost impossible in the Czech Republic. At the same time, the employer is obliged to inform such employees about the possible risks that their work poses to their biological condition and to take measures to prevent these risks. The Labor Code of the Czech Republic stipulates that the employer is obliged to create conditions for pregnant women, mothers by the end of the ninth month after giving birth and breastfeeding women, which will be suitable for their rest. This is a very specific provision of Section 103 of the Czech Labor Code, which is not common in similar legal regulations (Barancová, 2003) and places great demands on the employer, especially with regard to work carried out in offices accessible to the employer’s clients or outdoors. The second, third and fourth part of the fourth head of the Czech Labor Code is devoted to the regulation of working conditions of female employees. This is a fairly complex regulation which enshrines the fundamental rights of workers, in particular with regard to their biological status. Female employees are prohibited from engaging in positions that endanger their motherhood. The authors must state that, as in the Slovak Republic, this provision appears to be problematic with regard to the provisions on pre-contractual relations, which explicitly prohibit employers from obtaining information on pregnancy from future employees. Should an employer have to transfer a woman to another job based on her pregnancy or maternity, she is legally entitled to a salary no lower than on the previous position. If it is not possible to transfer her, she will stay at home and will be entitled to a social security benefit. Posting of pregnant workers or employees who are permanently taking care of a child younger than 8 years on a business trip is possible only with their consent, as well as their transfer. This applies equally to lone employees who are constantly caring for children under the age of 15. When assigning workers to work posts, the employer must consider their legitimate maternity interests. With regard to the organization of working time, if a pregnant worker or an employee who permanently cares for a child under 15 years of age requests shorter working time or any other appropriate working time adjustment, the employer is obliged to comply with it, unless serious operational reasons prevent him from complying. As in the Slovak Republic, the concept of serious operational reasons is not regulated. Serious operational reasons are defined only by case law, e.g. the judgment DANUBE: Law, Economics and Social Issues Review, 11 (3), 214–227 DOI: 10.2478/danb-2020-0012 219 of the Czech Supreme Court no. 612/2006, where the Supreme Court of the Czech Republic states that “. . . the decisive factor is, first of all, how important and significant an interference with the employer’s operations would be if the worker(s) were allowed the required shorter working time or other appropriate working time adjustment as compared to her (their) standard working condition for a set weekly working time. Only in the event that the proper operation of the employer is prevented, impaired or seriously jeopardized, can it be inferred that it precludes the employer’s serious operational reasons . . . ”, “. . . On the other hand, serious operational reasons within the meaning of Section 156 part 1. and section 270 part 1. and 2. cannot be seen in the situation, that if the employer complies with the request of an employee it will create a precedent that other employees could benefit from. In fact, all workers caring for a child under 15 years of age and all pregnant workers are entitled to shorter working hours or to any other appropriate arrangements for weekly working time . . . ”. In addition to appropriate working time arrangements, pregnant workers are prohibited from doing overtime and employees who are caring for a child younger than 1 year may only work overtime with their consent. After giving birth, workers are also entitled to a nursing break. Two half-hour breaks until the child reaches one year of age, followed by one half-hour break for each child for 3 months more. Such a break is counted as working time and includes wage compensation for the woman. The Labor Code of the Czech Republic provides relatively extensive protection to pregnant and breastfeeding workers, workers after childbirth or workers who are constantly taking care of children up to the age of 15 years. From a substantive aspect, the employee is always considered to be a weaker subject of the employment relationship. However, a woman’s biological status as a mother even more emphasizes this weaker position (Náhlíková Kaletová 2018). We would like to add, that the Czech Labor Code puts female workers into weaker position than male workers only in case of pregnancy and motherhood, never for the sex itself (Barancová, 2003). The authors would like to state that the analysis of individual provisions itself shows that there are significant differences between the Czech and Slovak legislation. IV. The Status of Women in Labor Relations in the Slovak Republic Act no. 460/1992 Coll. The Constitution of the Slovak Republic, as amended by constitutional acts (hereinafter referred to as “the Constitution”) includes, in its fifth section, Article 38, between economic, social and cultural rights, the inclusion of enhanced health protection at work and the specific working conditions of women, young people and the disabled. Article38 of the Constitution regulates the so-called positive discrimination, i.e. itgrants women,adolescents,andpersonswithdisabilitiestherighttoincreasedand special protection or assistance at work, in preparation for the profession. These groups of persons have these rights vis-à-vis the State, which is obliged to secure them (Čič, 1997). The rights referred to in this Article may be claimed only within the limits of the laws implementing those provisions; the article 38 section 3 of the Constitution stipulates that law shall provide the details of these rights. Laws governing the rights defined in Article 38 include, 220 Juraj Hamuľák, Lenka Freel, Denisa Nevická: The Comparative Analysis of Women’s Status in Labor Relations in Modern Slovakia and the Czech Republic in particular, Law No. 311/2001 Coll. Labor Code, as amended (hereinafter referred to as the “Labor Code”), Act No. 5/2004 Coll. on Employment Services as amended and others. In addition to the Constitution as the fundamental and highest-ranking state law, we find the Labor Code containing equal treatment and non-discrimination, in particular in Article 6 of the Basic Principles of the Labor Code, which states that “women and men have the right to equal treatment in terms of access to employment, remuneration and promotion, vocational training and working conditions. Pregnant women, mothers up to the end of the ninth month after childbirth and breastfeeding women are provided with working conditions that protect their biological status in connection with pregnancy, childbirth, after-birth care and their special relationship with the child after birth. Women and men are provided with working conditions that enable them to perform a social function in the upbringing and care of children.” However, the principle of equal treatment between men and women does not apply, for example, to relations relative to special protection in pregnancy and maternity (Jakubka, 2007). However, according to the judgment of the Court of Justice in Kalanke, “provisions enabling the protection of women as regards to pregnancy and maternity are not so much exceptions to the principle of non-discrimination on grounds of sex, rather than provisions which ensure the effectiveness of the principle of equality. It is only apparent discrimination by allowing or ordering different treatment to benefit or protect women for the purpose of achieving true equality in the material sense, not a formal equality that contradicts the requirement of equality as such.” (Bobek, Boučková, Kuhn, 2007). The ECJ’s judgment in Hill and Stapleton states that “the protection of women in the context of family life is a principle recognized by the laws of the Member States and the European Community as a natural complement to the principle of equality between men and women.” (Bobek, Boučková, Kuhn, 2007). Based on the foregoing, the prohibition of discrimination may therefore be infringed, on the one hand, by the fact that the employer disadvantages women because they are women or based on another biased assessment, which disadvantages women. In accordance with the article 13 of the Labor Code, the employer is obliged to treat employees in employment relations in accordance with the principle of equal treatment stipulated in the area of labor relations by special Act no. 362/2004 Coll. on equal treatment in certain areas and on protection against discrimination and amending certain laws (the Anti-Discrimination Act), which provides that discrimination on grounds of pregnancy, maternity, paternity or sexual identification is considered to be discrimination on grounds of sex. The right to equality between men and women in remuneration is regulated by a special provision of article 119a of the Labor Code governing wages for equal work and for work of equal value. In accordance with the law, wage conditions must be agreed without any discrimination on grounds of sex. Women, men and workers of the same sex have the right to equal pay for equal work or work of equal value. This shall apply to any work-related benefit as well as to work-related or employment-related benefits. Equal work or work of equal value shall be considered to be work of equal or comparable complexity, responsibility and labor, carried out under the same or comparable working conditions and attaining the same or comparable performance and employment results for DANUBE: Law, Economics and Social Issues Review, 11 (3), 214–227 DOI: 10.2478/danb-2020-0012 221 the same employer based on the Slovak Labor Code, Article 119a Section 2. The evaluation of employees must be based on the same criteria for men and women without any discrimination on grounds of sex. The Labor Code contains many provisions that give women more protection in the case of pregnancy and maternity than is provided to a comparable employee. First, it is necessary to characterize who is considered a pregnant employee. Pursuant to article 40 section 6 of the Labor Code, a pregnant employee is to be considered an employee who informed her employer in writing of her condition and submitted a medical certificate. In the opinion of the authors, thisisa strictlegalprovision,since the writteninformationand the presentation of a medical certificate are a precondition for a woman to enjoy special protection in labor relations as a pregnant employee. Pursuant to article164 section of the Labor Code, which has a general character, the employer is obliged to consider the needs of pregnant women and women and men taking careof childrenwhenassigning employees toworkchanges. Thismeans that, inaccordance with the above-mentioned needs, the employer is obliged to take into account the possible necessityof adjustingthe workingtime ofthecategoriesof employees mentioned, provided that if a pregnant woman and a woman or man who cares for a child under 15 years of age apply for shorter working hours or any other appropriate adjustment of the specified weekly working time, the employer shall be obliged to comply with their request unless serious operational reasons prevent this. The assessment of the seriousness of the operational reasons depends on the extent, organization, content and schedule of work, the employer’s operational conditions, as well as on the substitution of the employee. In connection with the regulation of working time, the Labor Code also contains a provision regulating possible overtime work and work emergency in particular, pursuant to article 164 section3, the special categories of employees mentioned above, may work overtime only with their consent, and work emergency can only be agreed with them. However, overtime is not prohibited for special categories of employees, as it is in the Czech Republic. Pursuant to article 170 of the Labor Code, the employer is obliged to provide a mother who is breastfeeding her child additional, special breaks for breast-feeding. A mother who works for a specified weekly working time has two half-hour breaks for breastfeeding per shift for each child up to the end of the sixth month of the child´s age and one half-hour break for breastfeeding for the next six months. If a mother is working part-time, but at least half of her specified weekly working time, she is entitled only to one half-hour break for breastfeeding for each child until the end of the sixth month of the child´s age. Breastfeeding breaks are included in the woman’s working time and are provided with wage compensation in the amount of average earnings. According to article 55 section 2 subsection b) the Labor Code, the employer is obliged to transfer an employee to another job if a pregnant woman, mothers until the ninth month after childbirth and nursing woman carry out work in which these women may not be employed or which, according to a medical opinion, endanger their pregnancy or maternity mission. This obligation arises in accordance with article 55 section 2 subsection (f) of the Labor Code to the employer even if a pregnant woman, a mother by the end of the ninth month after giving birth and a nursing woman working at night requests