SLP 02 (2013)

improving the quality of the State Labour Inspection’s staff and its remuneration 1383 or to anchor the possibility in the legislative documents to remit the informant the sanctions he/she is facing for exerting (but not enabling the exertion) of illegal work, if such a person genuinely helps in discovering illegal work. 1384 Another very effective device is the formulation of a substantive law assumption or the formulation of a procedural assumption concerning the exertion of dependent work, or rather -the existence of a labour relationship.

the contract agreed upon (§ 44 Civil Code) and emergency (§ 49 Civil Code). The possibility to use other contract types in guaranteeing the employees’ or their collectives’ rights was severely limited due to two prohibitions listed in the Czech Labour Code. In accordance with § 22 of the Czech Labour Code, only a trade union had and also hitherto has the right to conclude a collective agreement (this order is a result of the specific historical development in our country and also reflects the trade unions’ political power). The prohibition of inominate agreements in collective labour law has also been valid since 1. 1. 2012, though the amendment of the Labour Code abolished the provision of § 23 subs. 3, it replaced this provision by § 28, which contains the following wording: “It is prohibited to replace the collective agreement with a specifically unregulated agreement… .” Yet the prohibition of unnamed (innominate) agreements isn’t regulated in the individual contractual labour law. Such a regulation is materially wrong. If the inominate agreements are to be prohibited in labour law, then only in connection with establishing employment relations. In the other cases, there’s no reason to forbid the conclusion of atypical (unregulated) agreements, because the employee protection is provided for sufficiently by the mandatory legislation as listed in labour law regulations. We do not share the view with some authors that in labour law, an unnamed contract may only be a contract establishing some basic form of an employment relationship. Such an approach would be too simplifying. For example, also a contact (an agreement) establishing the right for a certain benefit (e.g. longer holiday or higher cancellation fee), or a contract melting the characteristics of several contract types (a mixed contract) may also be unnamed forms of contract. Atypical agreements may also widen the employee protection which is above all a target for collective labour law. By expressing the employees’ united opinion, the respective body in question may counterbalance the employer’s economic power. The prohibition of unnamed contracts in collective labour law thus in fact implies the prohibition to conclude other contract types between the employer and the employee representatives, though such actions may be taken in the interests of the contracting parties and the represented employees. This is absurd since the collective agreements have largely been established outside the valid law and due to an intensive business life. Thus the situation from the second half of the 19 th century is being repeated, since today, just like then, but out of other reasons (due to a combination of both limits – only a trade union; and the prohibition of inominate contracts) possible collective agreements concluded by a different employee representative aren’t granted a legally binding character. 1383 According to the regular annual report from 2010, there were overall 333 inspectors carrying out the control activity in the Czech Republic, which really isn’t thst much. See: http://www.suip.cz/rocni- zpravy/ (Cit.: 22. 8. 2012). 1384 Both the Austrian and the French judicature made statements concerning the employee’s right to challenge and detect the real subject matter of an obligation in spite of previous differing claims. See the judgment of the Austrian OGH from 11.10.2007, file number 8 ObA 49/07z and as far as the French judicature is concerned Thematic Report 2009, Characteristics of the employment Relationship, p. 83 and 84.

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