In July 2008, the Constitutional Court ruling to revoke the ministerial decree on the reduction of working time to a 36-hour week in hazardous workplaces came into effect. The court ruling affects at least 20,000 workers mainly in the metallurgy, chemicals and nuclear industries. The ruling was originally issued in February, giving legislators time to lay down a new regulation. Despite the four-month interval and the trade unions’ widely expressed concerns about a resulting workforce reduction, the government failed to devise a regulation to this effect.
Employer proposals
The ruling of the Constitutional Court (Alkotmánybíróság, AB) on the issue of the 36-hour weekly working time in hazardous workplaces was initiated by two proposals submitted independently by employer organisations. As these proposals were closely related in their subject matter, scope and content, the AB decided to treat the two proposals together. Both proposals called on the AB to review the constitutionality of the relevant ministerial Decree 1/1990 (VIII 21) issued by the then Ministry of Industry and Commerce (Ipari és Kereskedelmi Minisztérium, IKM). The employers argued that the decree was outdated because new laws had since come into effect which could regulate the issue more effectively.
Among the issues raised is the fact that the new regulations limit the so-called ‘exposure time’ – that is, the period during which the employee may be exposed to a given danger – while the 1990 decree establishes shorter working hours in addition to this ‘exposure time’ restriction. Furthermore, employer organisations have criticised the decree for discriminating against employers in the industry – including mining, manufacturing and energy supply – and commerce sectors, which are covered by the decree’s jurisdiction, compared with other non-regulated sectors. The employers have also highlighted how the regulation poses a disadvantage to Hungarian companies compared with companies operating in the same field in other European countries. Thus, the employer proposals have also called for more homogeneous legislation in this respect across the EU.
Court ruling
The AB sought to answer two fundamental questions: firstly, whether the minister currently responsible for industry and commercial matters has sufficient constitutional mandate to regulate a shorter mandatory working time of four hours’ less through a decree; and secondly, whether the minister has the right to select which occupations are eligible for such shorter working time. The AB bases its argument on the fundamental changes that have occurred in Hungarian legislation since the issuing of the decree – such as the major and significant amendment of the Labour Code in 1992. Implementation measures of the old Labour Code which had regulated the mandatory weekly working time shorter than 40 hours should also have been replaced by new ones. Moreover, the court ruling highlighted that the Act XXII of 1992 on the Labour Code stipulates that the mandatory working time is eight hours a day or 40 hours a week, and that shorter working time can be established through collective agreements or other legal rules.
The AB stated that the authorisation of the minister to legislate on this matter is unclear. Given the existence of other legal provisions, it is impossible to determine whether the incumbent minister responsible for industry and commerce has sufficient entitlement to regulate the issue. This situation breaches the fundamental constitutional principle of legal security – that is, the predictability of the legislation. As a result, the court ruled that the decree’s corresponding paragraph and its appendix would have to be abrogated. However, the AB gave a four-month interval for this, allowing legislators to devise a new regulation. The AB also indicated that while it prefers this issue to be regulated by law, a ministerial decree level adjustment would also be acceptable, provided that the minister receives legislative authorisation which conforms with the country’s constitution.
Trade union proposal
As the decree affects a large number and wide range of workers, the trade unions highlighted the issue as early as March 2008 at the National Reconciliation Council (Országos Érdekegyeztetési Tanács, OÉT). They put forward an alternative proposal at the 16 May session of the OÉT, which was nevertheless strongly opposed by employers, while prompting only a lukewarm response from the government. However, the social partners agreed to set up an ad-hoc tripartite technical committee to work out a new proposal by the 13 July OÉT meeting.
Response of employers
In the meantime, the employers emphasised the conformity of their views with the AB’s ruling, claiming that they had invested significantly in labour safety, thus improving workplaces and making them less dangerous to workers’ health. They also indicated that collective agreements can establish shorter working hours, wherever this is still necessary. Finally, they suggested a re-classification of all workplaces – not only in industry and commerce; this could be achieved through devising a new standard of hazard categories, which would take into consideration a wider range of factors that may pose a threat to workers’ health. Subsequently, it was proposed that efforts would be made, in conjunction with the Hungarian Labour Inspectorate (Országos Munkabiztonsági és Munkaügyi Felügyelet, OMMF), to elaborate a list of occupations where the new regulation would be implemented.
Government position
For its part, the government refused to prepare the new regulation for two reasons. Firstly, it argued that, in accordance with the 1993 Act XCIII on Work Health and Safety, dangerous workplaces shall not be maintained at all. Secondly, the government agreed with employers that the Labour Code allows for a collective agreement stipulation to resolve the problem of introducing shorter hours. Representing the government, the under-secretary of the Ministry of Social Affairs and Labour (Szociális és Munkaügyi Minisztérium, SZMM) also pointed out that the Labour Code establishes the maximum mandatory working time but not the minimum period. Finally the government stated that even if a job can only be performed for limited ‘exposure time’, as regulated by OMMF, this does not mean that the employer cannot assign other non-hazardous tasks to workers in order to complete working time.
Unproductive social dialogue
As a result of these developments, at the 13 June meeting of the OÉT, the government failed to propose a new regulation, instead offering to help stipulate a non-binding national recommendation for employers to maintain the current 36-hour working week for a limited period of time in these workplaces. However, this proposal was rejected outright by the employers. Thus, the four-month respite granted by the AB expired and the ruling entered into force without any resolution of the issue.
Meanwhile, the trade unions are concerned that the mandatory working time increase could result in potential dismissals at the affected workplaces, in addition to a decrease in hourly wages, as employers are not willing to increase wages proportionately. Therefore, at the 4 July session of the OÉT, the unions called for a transition period until 2008 to allow for the elaboration of the new regulation.
Given the employers’ rejection of the proposals, trade unions recently announced that they were planning to refer the issue to the AB once again, requesting it to oblige the government to issue a new regulation.
Commentary
Given the relatively low coverage of collective agreements – which amounts to 38.7% in industry and 14.2% in commerce – the somewhat passive role of the government’s representatives at the OÉT is considered surprising by social dialogue analysts. In similar instances in the past – such as the transposition of the European framework agreement on telework (109Kb PDF) – the government gave preference to legislation over collective bargaining, referring to the low capacity of the social partners to resolve issues of national scope (HU0410101F). However, the country’s fragile political situation and chances of an early general election may help to explain the ambiguity of the government’s approach in this instance, as it has been common in Hungary’s modern history that governments become less effective in governing in the final months of their mandate (HU0804029I). Forthcoming events at the OÉT, including the annual wage negotiations round, are likely to be more complicated than normal given the failure to reach consensus on this issue, along with the presence of other unresolved issues – such as the question of litigation costs (HU0806019I), or the revoking of the 50% travel discount that workers were entitled to receive once a year.
Márk Edelényi and László Neumann, Institute for Political Science, Hungarian Academy of Sciences