U-I-32/94

Reference no.:
U-I-32/94
Objavljeno:
OdlUS III, 82 | 30.06.1994
ECLI:
ECLI:SI:USRS:1994:U.I.32.94
Act:
Act on Amendments and Supplements to the Labour Relations Act, (Official Gazette of the Republic of Slovenia, no. 71/93), Article 7, paragraph 2.
Operative provisions:
The initiative for commencing the proceedings for evaluation of constitutionality of paragraph 2 of Article 7 of the disputed statute is rejected.
Abstract:
The regulation of the Labour Relations Act, according to which approval of the employer is required in the cases when, having become entitled to full old-age pension allowance, a woman desires, to continue to be employed until the completion of the period of insurance of 40 years, regardless of such conditions as may be set in the collective agreement or relevant general act, is not contrary to Article 14 of the Constitution.
Password:
Principle of equality before the law.
Equality of men and women regarding the obtaining of approval for continuation of employment to the completion of the period of insurance of 40 years.
Legal basis:
Constitution, Article 14.
Law on the Constitutional Court, Article 26, paragraph 2.
Document in PDF:
The full text:
U-I-32/94 - 8
30.6.1994
 
R E S O L U T I O N
 
At the meeting of 30 June 1994 concerning the procedure of testing the initiative of Ms. Pie Šumak from Maribor, the Constitutional Court
 
p a s s e d t h e f o l l o w i n g r e s o l u t i o n:
 
The initiative for commencing the proceedings for evaluation of constitutionality of paragraph 2 of Article 7 of the Labour Relations Act (Official Gazette of the Republic of Slovenia, no. 71/93) is rejected.
 
R e a s o n s :
 
A.
 
In the opinion of the initiator the disputed provision of the statute is contrary to Article 14 of the Constitution, because it makes woman's position unequal with respect to man's. This is because, for continuation of employment to the completion of the period of insurance of 40 years, women are required to obtain the approval of the employer or relevant organization, while this is not required of men.
 
The Ministry of Labour, Family and Social Affairs explains that modification of Article 101 of the Labour Relations Act was proposed for reasons of imperative harmonisation with the new Old-Age Pension and Disability Insurance Act. The proposed text of paragraph 2 of this Article ensured equal position of working women and men. The proposed text was modified in the legislative procedure, and the disputed text was adopted on the grounds that problems should be considered in a comprehensive way, and not only from the point of view of the Old-Age Pension and Disability Insurance Act and equality of the sexes.
 
B.
 
The initiative is clearly unjustified. Paragraph 1 of Article 101 of the Labour Relations Act, whose modification was enforced by Article 7 of the Act on Amendments and Supplements to the Labour Relations Act of 1993, provides that the employment of a worker shall end when the latter fulfils the conditions required for him to be entitled to full old-age pension allowance, unless the competent body of the organization or the employer decides, in accordance with conditions set in the collective agreement or relevant general act, that he may continue to be employed. The said modification additionally introduced paragraph 2 of Article 101 (the disputed paragraph 2 of Article 7 of the Act on Amendments and Supplements to the Labour Relations Act), which provides that, regardless of the provision of the first paragraph of that Article, a working woman may continue to be employed until the completion of the period of insurance of 40 years, if the employer agrees on that.
 
By modifying paragraph 1 of Article 101 of the Labour Relations Act, then, Article 7 of the Act on Amendments and Supplements to the Labour Relations Act provided that each employee should cease to be employed at the moment of fulfilling the conditions entitling him to full old-age pension allowance. This regulation, then, applies to both men and women. Both may also continue to be employed only when decision to that effect is made by the competent body of the organization, or by employer in accordance with the conditions specified in the collective agreement or relevant general act.
 
In other words, this means that, for a man to continue to be employed after having fulfilled the conditions which entitle him to full old-age pension allowance, approval of the employer is also required. In addition to that the conditions set in the collective agreement or relevant general act must also be fulfilled.
 
Paragraph 2 of Article 7, with which Article 101 of the Labour Relations Act was supplemented and which is disputed by the initiator, introduces an exception from the above rule, which applies to all employees regardless of their sex. With it, employed women are grated the possibility, when compared with men, to continue to be employed, after having fulfilled the conditions required to be entitled to full old-age pension allowance, until the completion of the period of insurance of 40 years, regardless of such conditions as may be set in the collective agreement or relevant general act. Since this is an exception to the rule, the Constitutional Court considers that it may be made subject to approval of the employer by the law- giver without infringing the provision of Article 14 of the Constitution.
 
Different positions concerning the application of the disputed provisions, depending on whether man or woman is involved, result from the fact that the disputed provision is linked with the fulfilment of the conditions required to entitle one to full old-age pension allowance. These are specified in Article 39 of the Old-Age Pension and Disability Insurance Act (Official Gazette of the Republic of Slovenia, nos. 12/92 and 5/94), where different age and number of years of service which entitle men and women to old-age pension allowance are required with respect to men and women.
 
C.
 
This Resolution was passed on the basis of paragraph 2 of Article 26 of the Law on the Constitutional Court by the Constitutional Court in the following composition: Dr. Tone Jerovšek, President, and Dr. Peter Jambrek, Matevž Krivic, M.L., Janez Snoj, M.L., Dr. Lovro Šturm, Franc Testen and Dr. Boštjan M. Zupančič, the judges. The Resolution was passed with five votes in its favour and three against it. Votes against were cast by the judges Krivic, Šturn and Zupančič. The judge Krivic expressed a negative separate opinion.
 
 
P r e s i d e n t:
Dr. Tone Jerovšek
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Pie Šumak, Maribor
Date of application:
12.02.1994
Date of decision:
30.06.1994
Type of decision adopted:
ruling
Outcome of proceedings:
rejection
Document:
AN00645