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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 19th 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:
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.