Principo "darbo santykių stabilumas" įgyvendinimas įmonės/verslo ar jų dalių perdavimo atvejais ; Implementation of the principle "stability of labour relations" in cases of a transfer of an enterprise/business or parts hereof

Abstract

In the Master Paper, the implementation of the principle of stability of labour relations in cases of transfer of an enterprise/business or parts hereof is discussed upon. The Article 138 of the Labour Code of Republic of Lithuania foresees only a partial protection of the employees and a succession of the labour relations in case of a transfer of the enterprise/business or a part hereof, i.e. a transfer can be considered a lawful reason for terminating the labour relations. A process of transfer often does not take place not for prospectlessness of the business or dishonesty of the employer, but because of a complex character of the process itself as well as the related legal and bureaucratic problems. Not only the assignee and the assignor, but also employees of the enterprise take an interest in a transfer of the enterprise/business or parts hereof, in particular the consequences of such a transfer. In case of a transfer of an enterprise/business or parts hereof, an employee suffers mostly: the settlement with the employees often is made non-timely and sometimes is not made at all, employees are discharged groundlessly, losing their jobs and the key means of their subsistence. Frequently, employers delay or fail providing to employees information in writing on their intention to transfer the enterprise/business or a part hereof; on the day of transfer, the planned actions, the causes of the transfer, its phases as well as the economical and social consequences that can impact the employee; on the changes of the conditions, including related to the work, remuneration for work and requalification. To make the process smooth and to minimize the social and economical consequences, it is important to establish procedures and rules applicable in a case of a transfer of the enterprise/business or a part hereof that would ensure a proper implementation of the principle of the stability of labour relations and execution of the duties of the parties of the labour relations. In the Master Paper, the formulated provisions are based on the international labour standards, scientific references as well as the results of an analysis of the practice of investigation of civil cases at the Supreme Court of Lithuania and European Court of Justice; they should be useful for improving the norms of labour law related to the principle of stability of labour relations and the restrictions on termination of labour relations and reorganizing an enterprise (in a case of a transfer of the enterprise/business or a part hereof) as well as for a protection of the rights of employees. The specific concepts singled out in the Paper should be taken into consideration on developing and improving the norms of the Labour Code and other legal norms for regulating the legal status and reorganization of enterprises as well as labour relations. To ensure a succession of employment contracts or labour relations as well as a protection of the rights of employees in a case of a transfer of the enterprise/business or a part hereof, Lithuania should harmonize the structure of its labour law with the law of the European Community, in particular with the Directive No. 2001/23/EC. Operation and implementing of legal norms is predetermined by their transparency. A transfer of the enterprise/business or a part hereof is bound with application of several legal norms, so confusion and violations of laws are unavoidable. This sphere is sensible both in the social and economic respect, so the legal norms for its regulation should be coordinated and clear both for an employer and an employee as well as an owner of a business. Upon the growing dynamism of business, the presumption that a transfer of the enterprise/business should be regulated by a special norm in future cannot be ignored. The results of the investigation should help to a person engaged in applying legal norms to assess the goals and the criteria of implementing of the relevant norms, to avoid errors in ensuring a protection of the rights of employees in a case of a transfer of the enterprise/business or a part hereof. The provided recommendations can be usable for supervision and control of implementing the labour laws, execution of scientific works on a similar subject and teaching students in the programme of law. In addition, the recommendations can be usable by professionals involved in harmonizing legal norms of Republic of Lithuania with the law of European Union. Using these materials, an employer or an owner of business will be able to carry out a transfer of the enterprise/business in a more rational way and thus avoid disputes bound with labour relations.