The People’s Advocate calls on the deputies to refrain from adopting the draft law amending the Labour Code, which was examined at the Government meeting of June 17, 2020. The draft in question establishes the right of employers to order the secondment and / or recalling the staff of medical sanitary institutions and / or other categories of employees from annual leave without the written consent of the employee, during exceptional situations related to the declaration of the state of emergency, siege and war or the declaration of the public health state of emergency.
According to the People’s Advocate, these provisions run counter to international and national labour standards, affect, in particular, the right to work and labour protection, enshrined in Article 43 of the Constitution of the Republic and the standards set out in Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights[1], as well as Art. 1 and 2 of the European Social Charter (revised)[2].
Mihail Cotorobai thinks that offering the employer the right of secondment or recalling the employee from annual leave, without his / her consent, also contradicts the provisions of Article 6 of the Labour Code, which states that “every person is free in choosing the workplace, profession, occupation or his / her activity. Nobody, during his / her life, can be obliged to work or not work in a certain place or hold a certain profession, regardless of whom they are. Any legal document concluded with failing to respect the provisions of these provisions is null.”
The Labour Code provides for the possibility of recalling the employee from the annual leave and the secondment the employee, the condition being only to obtain his / her written consent. If it is proposed to exclude this condition during exceptional situations related to the declaration of the state of emergency, siege and war or the declaration of the public health state of emergency, these circumstances could lead to abusive situations on behalf of the employer.
Also, the People’s Advocate emphasizes that in order to overcome crisis situations during pandemics, emergencies, etc., first of all, actions are required to ensure adequate safety-health and working conditions, but also to motivate trained employees in preventing and combating the consequences of exceptional situations. Under these conditions, employees could be encouraged to accept the employer’s proposals for secondment or recalling from annual leave.
Mihail Cotorobai recalls the recommendations of the UN Committee on Economic, Social and Cultural Rights addressed to states in the context of COVID-19 pandemic: “All workers should be protected from the risks of infection at work and appropriate regulatory measures to ensure that employers minimize the risk of infection in accordance with good health practices. Before taking such measures, employees should not be obliged to work and should be protected from disciplinary or other sanctions for refusing to work without adequate protection …”
In this context, the People’s Advocate reiterates his address to the authorities to respect the rights and dignity of employees, to ensure social guarantees and conditions for occupational safety at work, to protect the employees from acts likely to cause them harm and to provide appropriate facilities for performing their job duties. Therefore, the solution proposed by the Government through this draft law is inadmissible from the perspective of respecting the right to work and labour protection.
The People’s Advocate also expresses his concern that the draft law was promoted without respecting the principle of transparency in the decision-making process. Ensuring transparency is one of the principles of the legislative activity. Therefore, it is imperative that the draft normative, administrative acts that can have a social, economic, environmental impact (on lifestyle and human rights, on culture, health and social protection, on local authorities, public services) be subject to public consultations with sufficient time for stakeholder consultation.
2020 06 22
Department for Promotion of
Human Rights and Communication
Tel.: 060002656
[1] d) recreation, free time, rational limitation of working hours and periodic paid leave, as well as paid holidays.
[2] 3. to ensure the granting of an annual paid leave of at least 4 weeks;
