Guard Time Rules to Become More Flexible
In the Chamber’s opinion, this proposal serves only the interests of trade unions, but does not solve today’s problem. Additionally, the applicable provision for extending collective agreements contradicts the Constitution. Therefore the Chamber considers it necessary to establish more flexible guard time conditions in the Employment Contracts Act.
The Parliament is currently discussing the draft amendment of the Employment Contracts Act, which would, among other things, make the guard time regulation more flexible for the employees of the ICT sector. The Chamber supports the change, but considers it necessary to use the flexible guard time rules also in other sectors, where it is necessary to ensure 24h continuity of vital services (e.g. functioning of airports, aero-navigation services, power supply and water and sewerage services).
At the meeting of the Parliament’s Legal Committee that took place last week, the Estonian Trade Union Confederation supported the Chamber’s proposal to allow using the exception of guard time in the ICT sector as well as other sectors. At the same time, the trade unions agreed with it only provided that the more flexible guard time conditions (time, payment) would be agreed with a collective agreement that is extended to the entire sector.
The Chamber is against such solution because the currently applicable regulation for extending the collective agreement contradicts the Constitution. This conclusion was made by the Chancellor of Justice already in 2005. In his opinion, the regulation does not comply with the principle of legal clarity and as a result, it is possible to disproportionally infringe the right of persons for freedom of business. However, the respective provision has not been amended in the Collective Agreements Act after the publication of the position of the Chancellor of Justice.
According to the current law, the collective agreement can be extended to the entire sector or all sectors if the collective agreement has been concluded between a union of employers and a union of employees. At the same time, the law does not provide for the requirements for representation for the unions of employers and employees. This means, for example, that a union of employers consisting of three micro companies and a trade union consisting of five employees can agree that the salary as well as work and rest time conditions agreed on with a collective agreement are extended to the entire sector or even to all employees in Estonia. Thus, some persons may agree on conditions that are not acceptable for other employers. Additionally, other employers are unable to have their say in the conditions of the collective agreement that is extended to them.
Even if the regulation of extending the collective agreement would be in line with the Constitution, the Chamber does not consider the proposal of trade unions to be reasonable. In the Chamber’s opinion, the proposal of trade unions serves only their own interests and does not solve the current problem. The Chamber emphasises that in many sectors (e.g. the ICT sector) the employees have not considered it necessary to form a trade union, because they do not see a real benefit in it for better and more modern arrangement of employment relations.
The state should not pressurize employees by a law to form trade unions in order to establish more flexible guard time conditions in the sector. In the Chamber’s opinion, the most suitable solution would be to establish these conditions in the Employment Contracts Act. A solution like that does not prevent the conclusion of collective agreements, but that already considering the free will of each person and based on the freedom of association set out as a fundamental right.