SLP 02 (2013)

The employer is entitled to, as a superior person, to organize his/her employers’ work and to assign binding work tasks. In contrast to other dependent relationships, he may not only assign work tasks, but in addition may also define binding instructions or binding guidelines. The employer has the right to continuously control the fulfillment of these tasks and the compliance with his/her guidelines. On the basis of his decision, he may one-sidedĺy (but in a binding manner) order another employer to fulfill these tasks. The right to carry out a control is supplemented by the important right to sanction the non-fulfillment of work tasks or of other employer requirements in line with the remnants of the concept of disciplinary responsibility. The employer may sanction the employee by not granting this person the bonus components of his/ her wage, by cutting his/her holidays, by offsetting the damage caused against the respective employee’s claims, etc. According to the current legislation, the employee remains an employee voluntarily inferior in authority to his/her employer. Neither the complexity of the work carried out nor the protection of the worker’s personality alter this in any way. In fact, the employer very often does not understand his/her inferior employer’s work, yet this does not deprive him of his right to set and change the conditions under which the worker shall carry out such a work. Employers in the post Taylor-Fordian era 1362 demand a liberalization of labour law even more than in the past, they want to have a sufficiently flexible legal regulation, but one which will help them to achieve their target securely and with a minimum risk. Due to excessive costs of employee work power, they opt for outsourcing as a more flexible means of solving their problems. 1363 The concept of the employer’s legal superiority also gives an answer to this current challenge since it enables to more flexibly accomplish the set tasks which in turn may significantly lower the transaction costs. The fulfillment of work tasks with own workers in a labour relationship (internalization) thus includes not only disadvantages (cost due to higher social protection), but also numerous and fundamental advantages in comparison to other obligations. In fact, the atypical (though not as far as their frequency is concerned) agreements to work outside the scope of employment are a specifically Czech and still a labour law method to lower the high demands posed on the employers as far as management, control and the price for the worker’s work performance 1364 are concerned. It is the example of employees working in the basis of agreements to work outside the scope of employment, but also the home employees, persons exerting clerical services as well as members of company statutory bodies who are entrusted to perform 1362 The Taylor-Fordian era refers to a period of large vertically organized bureaucratically managed companies, where the production was carried out on production lines. It is a production form typical of an industrial society. 1363 See e.g. Maisner, M.; Černý, J.: Právní aspekty outsourcingu [Legal aspects of outsourcing] . Praha: Wolters Kluwer, 2012, p. 79 ff. 1364 Dědič, J.; Soušková, M.: Několik úvah nad právní úpravou dohod o pracích konaných mimo pracovní poměr [Some thoughts on the legal regulation of work outside the scope of employment] , p. 633.

274