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company leadership in a labour relationship
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that force ÚS to consider dependent
work from two further angles. Thus especially the definition of a certain kind of
work as dependent work has only then sense, if it brings the performer of this work
a sufficient social protection, a catalogue of rights, the compliance with which will
be possible to rapidly and effectively enforce. If in the case of employees working
on the basis of agreements to work outside the scope of employment, or in the case
of agency employed workers and other atypical workers the labour law’s protective
function doesn’t largely hold
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(and these persons’ participation in the public law
systems of social security is or may be suppressed), it cannot be proven that the use of
the respective contract type according to the Labour Code or the Commercial Code
is too risky
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for economically weak or socially endangered citizens. If we perceive
the loss of legal independence in turn for social security as a part of the labour law
regulation, then there simply is no material reason for preserving the labour law status
of these workers.
With home employees, pedagogical workers, persons exerting clerical services as
well as members of company statutory bodies who are entrusted to perform company
leadership in a labour relationship, the situation is different. These persons are
out of historical reasons and in the case of persons entrusted to perform company
leadership out of other reasons granted full or partial labour law status
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(there’s
an assimilation), although in the case of home employees and persons entrusted to
perform company leadership in a labour relationship there’s no employer superiority
present and in the case of persons exerting clerical services, it is necessary to respect
the church’s or religious community’s law to independently administer its business,
or rather the freedom to express one’s religious belief freely. On the basis of these
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In the French legal regulation commercial representatives, entertainers and journalists are mentioned;
in the Italian regulation, it is the co.co.co., co.co.co.pro and sportsmen. See: Pélissier, J.; Supiot, A.;
Jeammaud, A.: Droit du travail, Paris, 2008, p. 403 ff. a Nogler, L.: The Concept of Subordination in
European and Comparative Law, University of Trento, Italy, 2009, p. 87.
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The same can be found in: Stránský, J.: Dohody o pracích konaných mimo pracovní poměr – flexibilita
za každou cenu?
[Agreements to work outside the scope of employment – flexibility at any price?]
, p. 81 ff.
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The legislator argues that the scope of this work is small (publication 411 PS PČR
[Chamber of Deputies
of the Czech Parliament]
, explanatory report, special section, p. 81 ff.), but is has been proven later on
that on the basis of an agreement to perform work, the employee may work for the set weekly worktime
for over six months. Yet the chance to use 50% of the yearly work fund surely cannot be declared
as marginal. One could maybe discuss about the limited character of agreements to complete a job,
although even here the quantitative limit is 300 hours (from 1. 1. 2012) which corresponds to 37,5
work shifts (work days) á 8 hours, i.e. to almost two months of work. See the decision of Státní úřad
inspekce práce
[State Labour Inspection Office]
from 26.6.2012, reference number 1721/1.30/12/14.3
and compare with the decision of Státní úřad inspekce práce
[State Labour Inspection Office]
from
21. 6. 2012, reference number 2121/1.30/12/14.3, p. 6.
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In the case of clergy, this group’s remuneration hasn’t been differentiated from the remuneration of civil
servants, neither have clergymen been excluded from the general national system of pension insurance.