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CONCEPT AND FORMS OF DISCRIMINATION IN LABOUR LAW IN THE LIGHT OF CASE LAW OF THE EU COURT OF JUSTICE (Pojem a formy diskriminacie v pracovnom prave vo svetle judikatury Sudneho dvora EU)

100%
Barancova H.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2011
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vol. 94
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issue 2
145-160
EN
Regulations issued in early third millennium were the first to define not only the term of indirect discrimination, but also the term of direct discrimination. Although these elementary terms are defined in both the EU secondary law and the application practice, problems with their interpretation still persist and are directly related to the fundamental human right - prohibition of discrimination. The correct definition of these basic terms is also required for the judicial practice of the EU Member States, because national courts of the Member States are competent to decide on actions in case of the violation of the prohibition of discrimination. In the recent years the abundant case law of the EU Court of Justice brought more light into definition of the term of direct and indirect discrimination. The judicial practice justly expected in particular the legal interpretation of the prohibition of discrimination in relation to indicia of discrimination on the basis of age, sexual orientation, disability, race, ethnicity, belief and religion. From the case law of the EU Court of Justice it results that correct legal identification of the existence of direct discrimination or indirect discrimination is not simple. It is even truer for the terms of harassment, sexual harassment and incitation to discrimination that are explicitly regarded by the regulations as the forms of discrimination. The correct definition of the terms of direct discrimination, indirect discrimination, harassment, sexual harassment and incitation to discrimination is currently even more important, because in the application practice the number of cases of violation of the prohibition of discrimination, not only on the ground of gender but also for other reasons, is increasing. Victims of different forms of discrimination in labour relations currently lack the courage to defend their rights in court. Also the courts in the Slovak Republic presently have not excessive legal information about these problems.
2

A STRIKE ONLY ACCORDING TO THE COLLECTIVE BARGAINING ACT? (Strajk len podla zakona o kolektivnom vyjednavani?)

100%
Barancova H.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2008
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vol. 91
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issue 2
94-108
EN
According to the Collective Bargaining Act the strike is partial or complete stoppage of work by the employees. It is a group manifestation of the employees, a manifestation of the conflict of group interests which has grown in to the stage of collective dispute. Legal strike is not considered the breach of working discipline. The Collective Bargaining Act codifies only such a strike as is used for the settlement of the dispute arisen in connection with the conclusion of a collective agreement, if the collective agreement has not been concluded even after the proceedings before a mediator and the contracting parties do not request the settlement of the dispute by an arbitrator. The definition of the strike in the Collective Bargaining Act is a narrow definition, intended merely for the purpose of the settlement of a collective labour law dispute arisen from collective bargaining aimed at the conclusion of a collective agreement. In comparison with the Collective Bargaiming Act the right to strike in a broader framework is codified by Art.37 of the Constitution of the Slovak Republic.The Constitution also asssumes that the right to strike will be codified by a law which, however, has not been adopted so far. If the strike arises in connection with the conclusion of a collective agreement, its legal regime is governed by the Collective Bargaining Act. If the strike arises for other reasons, due to the absence of specific legislation its participants would have to act in accordance with general principles enshrined in the Constitution of the Slovak Republic, the fundamental principles of the Labour Code and international labour law. The Collective Bargaining Act regulates the so-called enterprise, supra-enterprise and solidarity strikes. With reference to legality there are legal and illegal strikes. A legal solidarity strike, however, is only such a strike in the course of which the employer may influence the progress or the result of the strike of those employees to the support of which the solidarity strike has been declared. In the opposite case, when the condition of economic or other relation is absent, the solidarity strike is illegal in the meaning of Sec. 20, letter a) of the Collective Bargaining Act. The right to strike in the broadest meaning of the term is the legally permitted possibility of the employees to discontinue work in an organized manner. It comprises the right to participate in the strike and the organization and the declaration of the strike. The right to participate in a strike is an individual employee's right which may be restricted by the law for certain callings. The employee's right to strike participation is not bound with his membership in a trade union organization. The right to organize and declare strikes belongs exclusively to trade union bodies.
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