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allowance in lieu, instead of paid annual leave

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The right to paid annual leave:
implications of accession
Prof. dr. sc. ЕЅeljko PotoДЌnjak
Andrea Grgić
Iva Čatipović
17 April 2014
Dubrovnik
Historical Development – international level
п‚—
first time recognised:
в—¦ 1936 ILO Holidays with Pay Convention (No. 52)
п‚– 1936 Recommendation No. 47
п‚– 1954 Recommendation No. 98
в—¦ 1970 ILO Holidays with Pay Convention (Revised; No. 132)
п‚—
included in all mayor documents on human rights:
в—¦ UN:
п‚– 1948 The Universal Declaration on Human Rights (Article 24)
п‚– 1966 The International Covenant on Economic, Social and
Cultural Rights (Article 7 (d))
в—¦ CoE:
п‚– 1961 The European Social Charter (Article 2, point 3) and
п‚– 1996 The Revised European Social Charter
Faculty of Law
University of Zagreb
2
Development at the EU level
1.
The Community Charter of the Fundamental Rights of Workers (1989)
2.
Directive 93/104/EC concerning certain aspects of the organization of
working time
3.
Directive 2000/34/EC amending Council Directive 93/104/EC
concerning certain aspects of the organization of working time to
cover sectors and activities excluded from that Directive
4.
Directive 2003/88/EC concerning certain aspects of the
organization of working time (WTD)
5.
The Charter of Fundamental Rights of the EU (Art. 31. (2)) (2000)
6.
case law of the CJEU
Faculty of Law
University of Zagreb
3
Development at EU level
Faculty of Law
University of Zagreb
4
Art. 7 WTD before the CJEU
• the scope ratione personae
• C-133/00, Bowden;
• C-519/09, May;
• C-337/10, Neidel
•
minimum period of employment as a
precondition for entitlement to paid
annual leave
• C-173/99, BECTU
•
relationship between paid annual leave
and maternity leave
• C-342/01, Merino Gomez
•
relationsip between paid anuual leave and
sick leave
• C-350/06, 520/06 Joined cases
Schultz-Hoff and Stringer and
Others;
• C-277/08, Pereda;
• C-282/10, Dominguez;
• C-78/11, ANGELD;
• C-194/12, Maestre Garzia
•
prohibiton of replacing the minimum
period of paid annual leave by allowance
in lieu
• C-124/05, Federatie
Nederlandse Vakbeweging
Faculty of Law
University of Zagreb
5
Art. 7 of WTD before the CJEU
• allowance in lieu, instead of
paid annual leave – when the
employment relationship is
terminated
• C-350/06, 520/06 Joined cases
Schultz-Hoff and Stringer and
Others,
• C-337/10, Neidel
• (prohibition) of rolled-up
holiday pay
• C-131/04, Robinson-Steele
• C-257/04, Clarke
• the carrying-over of unused • C-350/06, 520/06 Joined cases
annual leave to the next
Schultz-Hoff and Stringer and
calendar year
Others
• C-214/10, KHS
• C-337/10, Neidel
• the right to paid annual leave
for part-time and/or fixedtime workers
• C-486/08, Tirols
• C-229 and 230/11, Heimanni
Toltschin
• C-415/12, Brandes
Faculty of Law
University of Zagreb
6
Research questions
Croatian law examined under EU law:
1.
Is the minimum period of employment a
precondition for the entitlement to paid
annual leave?
2.
Can the right to paid annual leave be lost due
to overlap with another period of leave?
3.
Are the carry – over periods in Croatian law
long enough?
Faculty of Law
University of Zagreb
7
1. Minimum period of employment
as a precondition for the
entitlement to paid annual leave
Faculty of Law
University of Zagreb
8
EU perspective
п‚—
BECTU
в—¦ the entitlement to paid annual leave didn't arise until a worker had been
continuously employed for 13 weeks
◦ „the entitlement of every worker to paid annual leave must be regarded as a
particularly important principle of Community social law” (para. 43)
п‚– no derogation
п‚– implementation by the competent national authorities must be confined within the limits
expressly laid down by the WTD
в—¦ competence of the MS?
п‚– difference between the arrangement and the entitlement for paid annual leave,
o
MS are not allowed to „adopt national rules under which a worker doesn't
begin to accrue rights to paid annual leave until he has completed a
minimum period“ of employment (para. 53)
Faculty of Law
University of Zagreb
9
Croatian perspective
п‚—
The right to paid annual leave in its full duration (4 weeks)
в—¦ after six months of employment (Art. 58 (1) LA)
п‚—
Employees who don’t meet this condition have the right to a
proportion of annual leave (Art. 59 LA)
в—¦ the right to one-twelfth of (full) annual leave for each month of work
в—¦ when calculating the duration of annual leave, at least half a day of
annual leave is rounded up to a whole day of annual leave, and at
least half a month of work is rounded up to a whole month
EXAMPLE:
• The worker was employed 1.7. – 18.8., 5 days/week (Mon-Fri); 8 h/day
•
the worker worked more than half of August – to be rounded up to a whole month
• duration of the employment relationship (for the purpose of calculating AL)? 2 months
• duration of paid annual leave? 2/12 x 20 days (4 weeks; 5 working days per week) = 3, 333
days= 3 days
•
0,333 days is less than half a day – will not be rounded up to a whole day
Faculty of Law
University of Zagreb
10
(In)compatibility with the EU law?
п‚—
status of a worker whose employment relationship
with an employer lasted for less than half a month?
в—¦ does relevant Croatian legislation implicate that a worker has to be in
an employment relationship for at least half a month in order to begin
to accrue the right to paid annual leave?
в—¦ is this compatible with EU law (BECTU case)?
в—¦ is a worker entitled to paid annual leave - the problem of calculation of
(the duration of) annual leave?
п‚– de lege ferenda suggestions?
Faculty of Law
University of Zagreb
11
II Relationship between paid annual
leave and other periods of leave
- granted by EU law
- not granted by EU law
Faculty of Law
University of Zagreb
12
EU perspective – maternity leave
п‚—
Merino GГіmez
п‚—
the maternity leave coincided with the period of annual leave envisaged by
the collective agreement which resulted in the refusal of annual leave
п‚—
The CJEU examined the purpose of the entitlement to annual leave
concluding that it „is different from that of the entitlement to maternity
leave. Maternity leave is intended, first, to protect a woman’s biological
condition during and after pregnancy and, second, to protect the special
relationship between a woman and her child over the period which follows
pregnancy and childbirth “ (para. 32)
п‚—
„a worker must be able to take her annual leave during a period
other than the period of her maternity leave“ (para. 37)
Faculty of Law
University of Zagreb
13
Croatian perspective
п‚—
the LA contains only a very broad provision on periods which shall not
„interfere“ with the duration of paid annual leave (Article 56(1))
◦ “holidays and non-working days established by law are not included in the duration of
annual leave” and
◦ “a period of temporary inability to work, which was confirmed by an authorised
physician, is not included in the duration of annual leave”
в—¦
в—¦ due to traditional (paternalistic, even dicriminatory) approach, maternity leave is still considerd to be
„temporary inability to work”
п‚– (monetary) maternal benefits still managed by the Croatian Health Insurance Fund
п‚—
п‚—
Maternity leave explicitly mentioned only in Art 63(3) LA which provides
more favourable regulation for the carrying over of not taken or
interrupted annual leave to the following calendar year, for workers who
were unable to exercise it due to “illness or maternity,
parental or adoption leave”
в—¦
confirms that maternity leave is not to be included in the duration of annual leave
в—¦
the same solution proscribed regarding parental and adoption leave (although the Art. 56. of the LA
doesn’t provide for any ground for such interpretation)
14
EU perspective – sick leave
п‚—
Schultz-Hoff and Stringer
в—¦ long-term sick leave followed by dismissal
п‚—
„it is common ground that the purpose of the entitlement to paid
annual leave is to enable the worker to rest and to enjoy a period
of relaxation and leisure,
п‚—
the purpose of the entitlement to sick leave is different. It is given
to the worker so that he can recover from being ill“ (para. 25)
п‚—
„the right to sick leave and conditions for exercise of that right are
not, as [EU] law now stands, governed by that law“ (para. 27)
п‚—
nevertheless:
the WTD precludes „national legislation or practices which provide
that the right to paid annual leave is extinguished at the end of the
leave year and/or of a carry-over period, which was the reason why
the applicant could not exercise his right to paid annual leave (para.
49)
Faculty of Law
University of Zagreb
15
EU perspective (II)
• C-277/08, Pereda;
• C-194/12, Maestre Garzia
• C-78/11, ANGELD
• a worker becoming unfit for work
before the date of his allocated
annual leave
• a worker becoming unfit for work during
a period of paid annual leave
• a worker has to subsequently be entitled to annual leave which has not
been used
Faculty of Law
University of Zagreb
16
Croatian perspective
п‚—
a period of temporary inability to work, which was confirmed
by an authorised physician, is not included in the duration of
annual leave (Art 56(3) LA)
Faculty of Law
University of Zagreb
17
(In)compatibility with EU law?
п‚—
other types of leave recognised by Croatian law
п‚—
Paid:
в—¦ for important personal needs (Art 65(1) LA) ;
в—¦ when receiving education for the needs of the works council or trade union work
(Art 65(4) LA)
в—¦ after donating blood (Art 65(6) LA)
п‚—
for the purpose of acquiring the rights arising from employment or related
to employment, considered as time spent at work (Art 65(5) LA)
п‚—
Unpaid:
в—¦ the employer may grant a worker unpaid leave, at his or her request (Art 66 LA)
в—¦ Maternity and Parental Benefits Act (Art 9(1.9)) - the right to suspension of the
employment relationship until the child turns three years of age
п‚—
the rights and obligations arising from employment or related to
employment are suspended (unless otherwise specified by the law) (Art 66(2) LA)
Faculty of Law
University of Zagreb
18
III Carrying-over of the
unused annual leave to the next
calendar year
Faculty of Law
University of Zagreb
19
EU perspective
п‚—
Federatie Nederlandse Vakbeweging
в—¦ an information brochure - a worker can obtain cash in exchange
for the leave days above the mandatory minimum number of
days per year, or days which have been saved up over the
course of previous years
◦ „the positive effect which that leave has for the safety and health of
the worker is deployed fully if it is taken in the year prescribed for that
purpose, namely the current year
в—¦ the significance of that rest period in that regard remains if it is taken
during a later period“ (para. 30)
Faculty of Law
University of Zagreb
20
EU perspective (II)
п‚—
Schultz-Hoff and Stringer
п‚—
a provision of national law regarding the carry-over period aims to
give a worker who has been prevented from taking his annual leave
an additional opportunity to benefit from that leave
в—¦ as such, those provisions form part of the conditions for the exercise and
implementation of the right to paid annual leave - MS competence (para. 42)
п‚—
„it must be held that national law can provide for the loss of the
worker’s right to paid annual leave guaranteed by Art 7(1) WTD at
the end of the leave year and/or of a carry-over period, but only
if the worker actually had the opportunity to exercise the
right conferred on him” (para. 42)
Faculty of Law
University of Zagreb
21
EU perspective (III)
п‚—
KHS
п‚—
Due to incapacity, Mr. Schulte wasn't able to exercise his right to annual leave; in
2009 he brought an action for payment of allowances in lieu of annual leave not
taken during the reference periods corresponding to the calendar years 2006,
2007 and 2008
п‚—
although the previous case-law indicates that a worker’s right to paid annual leave
shouldn’t lapse without him actually having had the opportunity to
exercise that right, „that conclusion must none the less be qualified in specific
circumstances such as those in the main proceedings“ (para. 28)
п‚—
it can lapse, but the carry-over period must be „substantially longer than the
reference period in respect of which it is granted” (para. 40)
п‚— Reference period = leave year = calendar year
п‚—
п‚—
15 months?
Neidel – 9 months?
Faculty of Law
University of Zagreb
22
Croatian perspective
п‚—
Art. 63 (1) LA
п‚—
two weeks of annual leave may be carried over to the next calendar
year, only when an employer does not provide a worker with an
opportunity to use such leave
п‚—
carried over annual leave must be used no later than the 30th of
June of the following year
п‚—
Exceptions:
п‚—
in the cases of illness, maternity, parental or adoption leave – the
entire annual leave can be carried over, but it must be used by 30
June of the following year
п‚—
Ship workers, posted workers and workers performing citizen
duties in defence service – entitlement to use the entire annual
leave in the following calendar year
Faculty of Law
University of Zagreb
23
(In)compatibility with EU law?
п‚—
reference period in Croatia is 6 months
в—¦ only by way of exception, some categories of workers are
entitled to a longer carry-over period (12 months)
п‚—
CJEU - the carry-over period has to be substantially
longer than the granted reference period
Faculty of Law
University of Zagreb
24
First conclusions: Croatian law is
incompatible with EU law
п‚—
Dominguez
1.
national law must be interpreted in conformity with EU law
п‚– limited by the prohibition of interpreting national law contra legem
2. direct effect of directives
• employer is a state body
• vertical – YES
• national courts should disregard any
conflicting national provisions
Is conform
interpretation
possible?
• employer is a private entity
• horizontal - NO
• compensation for the loss
Faculty of Law
University of Zagreb
25
Thank you for your attention
Faculty of Law
University of Zagreb
26
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