SLP 02 (2013)

pseudo self-employed persons force ÚS to ask, whether effective measures in fighting illegal work do not maybe consist of something completely different. The Czech Supreme Administrative Courte has stated: “The aim to minimize costs and maximize profit, with this activity being carried out by the entrepreneur providing for specific activities via contracts for work done signed with economically independent, though from the perspective of earnings volume and owned capital incomparably weaker producers, is a rational measure that does not harm anybody and is thus also a legally permitted measure serving a sensible order of societal relationships.” 1378 In the interest of further economic growth, such changes will necessarily happen more and more often in future and a successful protection of the Taylor-Fordian employment relationship, if it is appropriate at all, 1379 does certainly not consist in demonizing outsourcing nor subcontracting, nor does it consist in continuously raising sanctions. Strengthening illegal work prevention through removing the motivation for circumventing the labour law regulation (as for example the aim to evade higher personal income tax payments and higher payments for health insurance and for social security as well as the State employment policy contribution) and a tax system as well as a system of insurance contributions into public social security programs which would both be transparent, predictable and appropriate, would improve the enforcement of compliance with the prohibition of dependent work outside the scope of labour relations better. 1380 As far as a qualitatively better protection of employees from illegal work is concerned, there are also other recommendable measures such as speeding up labour disputes (and possibly the establishment of specialized labour courts), 1381 widening the legal space for collective bargaining, 1382 supporting collective bargaining between social partners, subordinate (parasubordinate) employment: legal, social and economic aspects, This publication is available e.g. at: http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006072050& dateTexte=20120817 (Cit.: 17. 8. 2012). 1378 Judgement of the Supreme Administrative Court from 27. 7. 2006, reference number 2 Afs 173/2005- 69 and furthermore also the judgment of the Supreme Administrative Court from 15. 1. 2009, reference number 7 Afs 72/2008-97. 1379 The economic integration within the NAFTA has led to lower social standards for less skilled workers in all contracting countries, including the USA. In the interest of lower labour costs, the employers preferred to use both less paid and less protected foreign employees. See: Casale, G. (ed.): The Employment Relationship, A Comparative Overview, International Labour Office, Hart, Geneva 2011, p. 246 ff. 1380 See the judgement of the Supreme Administrative Court from 24. 2. 2005, reference number Afs 62/2004-70. 1381 The average length of judicial proceedings in labour disputes from the day of contest until decision’s coming into effect is 607 days See MS ČR [Ministry of Justice of the Czech Republic] : Statistický přehled soudních agend , druhá část, rok 2010 [Statistical overview of the courts’ agenda, second part, year 2010] , p. 14. 1382 The Czech Labour Code in its edition valid until 31.12.2011 prohibited in § 23 subs. 3 the use of the inominate agreement and in § 28 of ZP [The Czech Labour Code] it prohibited the convalidation of an invalid legal act and the conversion of a concealed legal act (regulation of § 41a of the Czech Civil Code) and furthermore, there was a prohibition of objectionability (§ 42a Civil Code), offer for contract (§ 43a Civil Code), termination of an offer (§ 43b), adoption of an offer (§ 43c), time when

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