Amendments in the employment relationship: employment function and working place
When entering into an employment relationship, consent must be reached regarding the following terms: the working place, the labour remuneration and the nature of the work. The determination of the employee’s obligations is in the centre of this consent – the employee must perform his work at a certain place under specific conditions for an agreed payment.
Article 118 of the Labour Code provides for the stability and the consistency of employment relationships: neither the employer nor the employee may change/modify the content of the employment relationship, except in the cases and according to the proceedings provided by law.
There are two cases provided by law:
- by mutual consent in written form, the employment relationship may be amended for a limited or an unlimited period of time (Article 119 of the Labour Code). The unlimited employment contract may only be changed into a fixed-term contract if the employee stated his agreement in writing. Only the clauses the parties agreed upon may be modified.
- unilateral modification of the employment relationship: the only possibility to unilaterally modify the contractual obligations is with regard to the: 1. Job characteristic, 2. The work place. 3. The wage, but only if is being increased.
Changes in the Nature of the Work
The nature of the work may be unilaterally amended by the employer (as part of his rights) but for reasons that belong to the following two groups:
I. Reasons on the side of the employer (Articles 120, 138a of the Labour Code)
- Article 120 of the Labour Code provides three cases of making amendments of the nature of the work. The amendment may concern the object of the work, its extent or the work conditions. In these cases, one of the following conditions must have occurred:
a) production necessity (Article 120 (1)) – If there is something to be done and no other employee is available, the employer may delegate an employee to do the job. The operational requirement may lead to the creation of new employment relationships and to conclusions of new contracts regarding employee representations (according to Article 68 (2), the representatives may also be external persons; Article 269 of the Labour Code regulates the internal representation).
b) Idling (Article 120 (1) of the Labour Code) – when employees are available but the means for the production are missing. This may be caused by a lack of raw material, machine failure etc. In case of stopped work, the employer may delegate the employee to do other jobs without the consent of the latter.
If the work is stopped for more than 5 days, the employer may order the employee to take his annual vacation (Article 173 (7) of the Labour Code). If the work is stopped for more than 15 days, the employer may terminate the employment relationship (Article 328 (1) N°4 of the Labour Code). The employer may also entrust the employee with another task.
c) Force majeure (Article 120 (3) of the Labour Code) – The employer may entrust the employee with another task if it is necessary for insurmountable reasons. “Force majeure” describes an unexpected and inevitable circumstance. This circumstance must have caused or hold out the prospect of material losses. The only requirement is that the amendment of the nature of the work must have occurred in relation with the force majeure. The professional qualification might not be taken into account given that in these cases it is mostly about the participation in rescue operations regarding life or property.
The law regulates the following regarding the rights of the employees:
- Temporal limitation of the amendment: Regarding operational requirements, there is a time limit of maximum 45 days within one calendar year; regarding idling and emergencies it may last until they pass.
- Place of performance: The place of performance may be in the usual or another enterprise. If it is in another enterprise, this enterprise must be located at the usual place of residence and belong to the same employer.
- The new work must correspond to the professional qualification of the employee (professional qualification or level of the expertise). This requirement does not apply in cases of emergencies – though the employee must be objectively able to perform the task. The employer may not entrust the employee with tasks of higher qualification. The only exceptions are medical professions.
- The employer must consider the current state of health of the employee when amending the employment position.
- The labour remuneration must be appropriate. The labour remuneration for the new employment position may not be lower than the remuneration for the usual one, though it may be higher. According to Article 259 (1) of the Labour Code, regarding representations, the employee is entitled to the rights of the new position including the remuneration as long as it is in his advantage.
The right of the employer to entrust employees with new tasks according to the conditions of Article 120 of the Labour Code is a subjective right to alter a legal relationship that by its exercising causes a unilateral legal change for the employee. This right is exercised by a unilateral declaration of will (the order does not require to have any specific form).
The amendment enters into force in the moment that the employee approaches the new task. The employee is exempted from the obligation to perform his former work activities; he is subject to the obligations that arise with the new tasks he obtained. In case of non-performance, he is disciplinary liable.
*If the order is unlawful (e.g. in the lack of an actual reason), the employee is not liable and the employment relationship may be terminated by the employee without notice (Article 327 N° 3 of the Labour Code).
Article 138a of the Labour Code provides the last case in that an amendment of the nature of the employment is possible: upon reduction in the volume of work, the employer may establish part-time work for the employees. The reduction of the scope of work may also be a reason for the termination of the employment relationship (Article 328 (1) N° 3 of the Labour Code). The part-time work offers the possibility to maintain the employment relationship. To initiate part-time work, the consent of the union and the employees is required (Article 7 (2) of the Labour Code). The labour remuneration is shortened and appropriately distributed on the performed work. The insurance premiums are shortened as well. This amendment may not last longer than 3 months in the same calendar year.
II. Reasons on the part of the employee (Articles 314 ff., 309 of the Labour Code)
In certain cases, the employer is obligated to assign another work to the employee.
The cases are as follows:
- Reduced work capacity (change of employment) – Article 314 of the Code of labour law: “An employee, who by reason of disease or employment injury is unable to execute the work assigned to him, but who may execute another suitable work or the same work under relaxed conditions without hazard to his or her health, shall become an occupational rehabilitee, being transferred to another work or to the same work under suitable conditions at the prescription of the health authorities.”
For this re-assignment, the following conditions must be present:
- The employee’s incapacity to perform his labour obligations;
- This incapacity must result from a sickness (general or work-related) or a work-related accident. The incapacity must be diagnosed by the competent health authority that imposes a medical prescription binding on the employer.
- The employee must be able to cope with the new task – with regard to his health and the technical particularities. Hence, the work must be reasonably suitable.
If the conditions of Article 314 of the Labour Code are fulfilled, the employer must assign the employee to a new work within a time period of 7 days. The non-fulfilment of this provision is a violation of the Code for the purpose of Article 414 of the Labour Code. Besides, according to Article 217 of the Code, the non-fulfilment entitles the employee to severance payment.
The employer may dismiss the employee according to Article 330 (1) N°5 of the Labour Code, if the latter refuses to perform the new tasks without valid reasons.
- During pregnancy – Article 309 (1) of the Labour Code: “A pregnant woman or nursing mother or a female employee in an advanced stage of in vitro treatment that performs tasks inappropriate to her condition must be assigned to other tasks or the same tasks under facilitated conditions upon prescription of the health authority.”
This obligation of the employer is subject to the following conditions:
- the employee must be pregnant;
- her work activities are not appropriate to her condition.
- During the breast-feeding period – regulated with the case of pregnancy. Necessary condition is here that the employee breast-feeds her child by herself. The prescription is made according to the evaluation of the competent health authority. If the employer ignores the medical prescription, he is obligated to pay compensation to the amount of the gross remuneration starting from the day of the receipt of the prescription until the day of the prescription’s fulfilment.
Change of the work place
The unilateral change of the work place is allowed in the following two cases:
1. Article 120 of the Labour Code – if the change coincides with an change of the nature of the work. The employee may be assigned to another enterprise in the same settlement.
2. Article 121 of the Labour Code contains the amendment of the work place for example due to a business trip. This amendment is regulated by the Regulation regarding business trips within the country and the Regulation regarding business trips and specialisations abroad.
- The justification for business trips is provided by Article 121 (1) of the Labour Code: “If the enterprise’s requirements demand it...” The respective evaluation is under the responsibility of the employer. The evaluation must be issued as a written instruction and is binding for the employees.
- The term business trip describes work performance of the same nature outside the regular workplace.
- The maximum duration of a business trip should not exceed a period of 30 days. If a business trip exceeds this maximum duration, the employer’s permission for the concrete case must be obtained. There is no legal provision limiting the number of business trips within one calendar year.
- The instruction must be issued in written form. Article 8 (2)-(4) of the regulation regarding business trips within the country provides cases, where the written form is not obligatory. The instruction must be issued by the employer or a person authorized by the employer. The employee is obligated to follow the instruction except in the following cases:
1). If the business trip exceeds the maximum duration of 30 days, the written agreement of the employee is required (Article 121 (2) of the Labour Code).
2). If it is a case of Article 310 (1) of the Labour Code which forbids pregnant employees to attend business trips.
Regarding business trips of (female) employees with children that are younger than 3 years old, a written agreement is required as well (Article 310 (1) of the Code of labour law).
In the context of a business trip, the employee is, aside of his gross pay remuneration, entitled to daily allowances, the reimbursement of travel costs and accommodation allowances. The particular amount and further conditions are set by the Council of ministers in a separate regulation.
- Daily allowances – the employee receives daily allowances to cover the necessary daily expenses. They are fixed in correlation with the minimum remuneration for work. Regarding business trips abroad, the daily expenses are adapted on the respective country.
- Reimbursement of travel costs – the employee obtains a reimbursement of the travel costs. The amount of the reimbursement depends on the kind and the class of the vehicle as well as on the distance.
- Accommodation allowances – costs and expenses for the accommodation.
*The business trip abroad is a business trip that the employee performs in another country.