The right to paid annual leave: implications of accession

The right to paid annual The right to paid annual leave:leave:implications of implications of accessionaccession

Prof. dr. sc. Željko PotočnjakProf. dr. sc. Željko Potočnjak

Andrea GrgićAndrea Grgić

Iva ČatipovićIva Čatipović

17 April 201417 April 2014

DubrovnikDubrovnik

Historical Development – Historical Development – international levelinternational levelfirst time recognised:

◦ 1936 ILO ILO Holidays with Pay Convention (No. 52) 1936 Recommendation No. 47 1954 Recommendation No. 98

◦ 1970 ILO Holidays with Pay Convention (Revised; No. 132)

included in all mayor documents on human rights:◦ UN:UN:

1948 The Universal Declaration on Human Rights (Article 24)

1966 The International Covenant on Economic, Social and Cultural Rights (Article 7 (d))

◦ CoE:CoE: 1961 The European Social Charter (Article 2, point 3) and 1996 The Revised European Social Charter

Faculty of Law University of Zagreb 2

Development at the EU Development at the EU levellevel1. 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 (WTDWTD)

5. The Charter of Fundamental Rights of the EU (Art. 31. (2)) (2000)

6.6. case law of the CJEUcase law of the CJEU


Development at EU levelDevelopment at EU level


• 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

Art. 7 WTD before the Art. 7 WTD before the CJEUCJEU

5Faculty of Law University of Zagreb

Art. 7 of WTD before the Art. 7 of WTD before the CJEUCJEU• 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 annual leave to the next calendar year

• C-350/06, 520/06 Joined cases Schultz-Hoff and Stringer and Others

• C-214/10, KHS • C-337/10, Neidel

• the right to paid annual leave for part-time and/or fixed- time workers

• C-486/08, Tirols• C-229 and 230/11,

Heimanni Toltschin• C-415/12, Brandes


Research questions 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?


1. 1. Minimum period of Minimum period of employment as a employment as a

precondition for the precondition for the entitlement to paid annual entitlement to paid annual

leaveleave


EU perspectiveEU perspectiveBECTUBECTU

◦ 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) no derogation

implementation by the competent national authorities must be confined within the limits expressly laid down

by the WTD

◦ competence of the MS? 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

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Croatian perspectiveCroatian perspectiveThe right to paid annual leave in its full duration (4

weeks)

◦ after six months of employment (Art. 58 (1) LA)

Employees who don’t meet this condition have the right to a proportion of annual leave (Art. 59 LA)

◦ the right to one-twelfth of (full) annual leave for each

month of work

◦ 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

Faculty of Law University of Zagreb1

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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

(In)co(In)commpatibility with the EU patibility with the EU law?law?status of a worker whose employment

relationship with an employer lasted for less than half a month?

◦ 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?

◦ is this compatible with EU law (BECTU case)?

◦ is a worker entitled to paid annual leave - the problem of

calculation of (the duration of) annual leave?

de lege ferenda suggestions?


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II II Relationship between paid Relationship between paid annual leave and other annual leave and other periods of leaveperiods of leave

- granted by EU law- granted by EU law- not granted by EU law- not granted by EU law


EU perspective – maternity EU perspective – maternity leaveleave Merino Gómez Merino Gómez

the maternity leave coincided with the period of annual leave envisaged

by the collective agreement which resulted in the refusal of annual leave

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)

„a worker must be able to take her annual leave during a period

other than the period of her maternity leave“ (para. 37)


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Croatian perspectiveCroatian perspective 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”

◦ ◦ due to traditional (paternalistic, even dicriminatory) approach, maternity leave is still

considerd to be „temporary inability to work” (monetary) maternal benefits still managed by the Croatian Health Insurance Fund

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”

◦ confirms that maternity leave is not to be included in the duration of annual leave

◦ 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)

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EU perspective – sick leaveEU perspective – sick leave Schultz-Hoff and StringerSchultz-Hoff and Stringer

◦ long-term sick leave followed by dismissal

„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,

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)

„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)

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)


EU perspective (II)EU perspective (II)

• C-277/08, Pereda;

• C-194/12, Maestre Garzia

• C-78/11, ANGELD


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• 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

Croatian perspectiveCroatian perspective

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)


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(In)compatibility with EU (In)compatibility with EU law?law?other types of leave recognised by Croatian law

Paid:◦ for important personal needs (Art 65(1) LA) ;

◦ when receiving education for the needs of the works council or trade union

work (Art 65(4) LA)

◦ after donating blood (Art 65(6) LA)

for the purpose of acquiring the rights arising from employment or

related to employment, considered as time spent at work (Art 65(5) LA)

Unpaid:◦ the employer may grant a worker unpaid leave, at his or her request (Art 66

LA)

◦ 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

the rights and obligations arising from employment or related to

employment are suspended (unless otherwise specified by the law) (Art 66(2) LA)


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III Carrying-over of the III Carrying-over of the unused unused annual leave to the annual leave to the

next calendar yearnext calendar year


EU perspectiveEU perspective Federatie Nederlandse VakbewegingFederatie Nederlandse Vakbeweging

◦ 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

◦ the significance of that rest period in that regard remains if it is

taken during a later period“ (para. 30)


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EU perspective (II)EU perspective (II) Schultz-Hoff and StringerSchultz-Hoff and Stringer 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

◦ 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)

„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)


EU perspective (III)EU perspective (III) KHSKHS 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

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)

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)

Reference period = leave year = calendar year

15 months?

NeidelNeidel – 9 months?


Croatian perspective Croatian perspective Art. 63 (1) LA 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

carried over annual leave must be used no later than the 30th of June of the following year

Exceptions: 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

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 Zagreb2

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(In)compatibility with EU (In)compatibility with EU law?law?reference period in Croatia is 6 months

◦ only by way of exception, some categories of workers are entitled to a longer carry-over period (12 months)

CJEU - the carry-over period has to be substantially longer than the granted reference period


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First conclusions: Croatian First conclusions: Croatian law is incompatible with EU law is incompatible with EU lawlawDominguez

1. national law must be interpreted in conformity with

EU law

limited by the prohibition of interpreting national law contra legem

2. direct effect of directives

Is conforminterpretationpossible?


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• employer is a state body • vertical – YES• national courts should

disregard any conflicting national provisions

• employer is a private entity• horizontal - NO• compensation for the loss

Thank you for Thank you for your your attentionattention


The right to paid annual leave: implications of accession

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