Fixed-term Employment Contracts Research Articles

YARGITAY KARARLARI ÇERÇEVESİNDE BELİRLİ SÜRELİ İŞ SÖZLEŞMESİNİN SÜRESİ İÇERİSİNDE HAKSIZ FESİH İLE SONA ERMESİ

İş sözleşmesinin işveren veya işçi tarafından haklı nedenlere dayanılarak feshedildiğinin ileri sürülmesine karşın gerçekte böyle bir neden yoksa veya haklı nedenler bulunmakla birlikte fesih hakkı hak düşümü süresi içinde kullanılmamışsa ya da usulüne uygun olarak yapılmamışsa haksız sayılır. Haksız fesih belirsiz veya belirli süreli iş sözleşmelerinde işveren veya işçi tarafından yapılabilir. Belirli süreli iş sözleşmesinin herhangi bir haklı nedene dayanmaksızın sürenin bitiminden önce işverence sona erdirilmesinin hukuki sonucu İş Kanunu’nda düzenlenmemiştir. Türk Borçlar Kanunu bu tutumun bir haksız fesih oluşturduğunu, sözleşmeyi sona erdirdiğini, işçinin bakiye sözleşme süresine ilişkin ücret tutarını tazminat olarak talep edebileceğini ve mahkemenin hükmetmesi halinde ayrıca bir haksız fesih tazminatını isteyebileceği açıkça hükme bağlamıştır.

Legal means of minimizing risks in labor relations: a note to the accountant

The legal means of reducing the risks of the employer in labor relations are considered, in particular, the use of the test period when hiring, the mechanism for verifying the employee’s compliance with the position assigned to the work; a comparative analysis of the features of the conclusion of a fixed-term employment contract and the test period for checking an employee entering into work is carried out; the consequences of the expiration of the labor contract and the test period when employment; the ratio of general and special provisions concerning the procedure and conditions for setting deadlines. The article considers the grounds for excluding the establishment of a test period when applying for a job, as well as cases when an employment contract can or should be concluded for a certain period.

THE ELEMENTS OF A GENUINE FIXED-TERM CONTRACT: A REVIEW ON MALAYSIAN LEGAL FRAMEWORK

Fixed-term employment generally may be referred as an employment contract in which an organization hire an employee for a specific time period. The primary objective in offering a fixed-term employment contract is because the employer does not have to commit to the permanent employment of the incoming employee. There is no issue of unfair dismissal arises in the principle of fixed-term contract. The Court will determine whether the employment contract in dispute is in fact a genuine fixed-term contract or a permanent contract disguised as fixed-term instead. The employer is not obliged to renew the contract after its expiry and no reasons need be given for non-renewal once it was established that the employment contract is a genuine fixed-term employment. Furthermore, aside from various meaning of genuine fixed-term contract defined in Malaysian cases, it not may not always be successful to protect the employee. Thus, this paper focuses on the issue of the employees’ rights and protection recruited under fixed-term contract in Malaysia by referring to the previous cases.

CONSIDERATIONS REGARDING THE CONTINUATION OF THE EMPLOYMENT RELATIONSHIP OF THE EMPLOYEE WHO HAS REACHED THE STANDARD PENSION AGE

The continuation of the activity in the same position as a result of the annual extension of the individual employment contract, does not take place for more than three years by concluding, every year, an additional act to the individual employment contract. The addendum does not transform the individual employment contract of indefinite duration into an individual employment contract of fixed term. The conclusion of a new individual fixed-term employment contract is required only in the event that the initial contract terminates by right, and the employee in question becomes a retiree and to continue in this capacity the employment relationship. The employer must not justify his choice not to extend the employment relationship of the employee who meets the conditions for retirement.

Peculiarities in concluding an employment contract in the code of labor laws and similar acts of foreign countries

The conclusion of fixed-term employment contracts and contracts for an indefinite period was studied. It is highlighted which sources of foreign countries are aimed at regulating issues related to the establishment of labor relations. On the basis of foreign legislation, it is established from what age a person can become a participant in labor relations. The main conditions that, according to the legislation, form the basis for the creation and functioning of an employment contract are analyzed. The maximum duration of a fixed-term contract in different legal systems is indicated. The peculiarities of concluding an employment contract with such a category of workers as migrant workers are considered. The concept of "commercial secret" and which legal acts of foreign countries regulate this concept are revealed. The content and procedure for concluding the "Non-Competition Pact" have been clarified. It was concluded that when concluding an employment contract, such two factors as citizenship or legal status of the employee play a significant role.

Problems of renegotiation, extension and prolongation of fixed-term employment contracts

Problems of renegotiation, extension and prolongation of fixed-term employment contracts

Неустойчивая занятость работников науки и образования: масштабы, причины, последствия

Based on the results of a mass survey of employees of scientific institutions and universities, the article analyzes the impact that their income, secondary employment, professional development and quality of work are affected by changes associated with the transition to an “effective contract”, the assessment of the performance of scientists and teachers mainly on the basis of scientometric indicators, explicit or latent transition to fixed-term employment contracts. It is shown that in the conditions of the lack of demand for scientific knowledge and scientific expertise by the economy and the public administration system and, as a result, a significant underfunding of science and education, these measures do not lead to the expected effects, but, contributing to the growth of precarious employment, negatively affect the quality and productivity of scientific and pedagogical work, sharply reduce the social protection of scientists and teachers, do not increase and even reduce the prestige of the respective professions.

To the problem of concluding a fixed-term employment contract with certain categories of employees

To the problem of concluding a fixed-term employment contract with certain categories of employees

TEMPORARY EMPLOYMENT OF TEACHERS

The employment of teachers is stable. The preferred legal form of performing work is an employment relationship for an indefinite period. Employment under a fixed-term employment contract is exceptionally permissible. The Teacher’s Charter identifies four such situations. This does not mean that temporary employment may last for many years. The legislator introduced special mechanisms limiting the duration of these contracts. Exceeding the limit indicated in the act results in the transformation by operation of law into an unlimited employment relationship. Also, unlawful entrustment of work for a specified period of time will result in the transformation of the employment relationship into an indefinite period.

THE ESSENCE OF A FIXED-TERM EMPLOYMENT CONTRACT

The existing regulation of the Labor Code includes three types of employment contracts. It means that each of them may be concluded only in certain circumstances. The differences between them result from their different functions and purposes. The shape of the regulation of each contract should reflect its nature. The essence of a fixed-term employment contract is shaped by three structural elements: the temporary nature of the work to be performed, unconditional determination of the end of the employment contract, and stability of the contract. The purpose of this article is to characterize each of these elements and assess the compliance of the existing LC regulation with the nature of the contract in question.

Elements of Precarious Employment in the Work of Scientifc and Pedagogical Workers

The paper highlights the problem of the growth of the segment of precarious employment in the work of researchers and the faculty, who work mainly in scientific and educational institutions (scientific and pedagogical workers). Besides the elements of precarious employment characteristic of the category of workers under consideration, the author considers the fixed-term nature of labor relations and the low level of the conditionally constant part of wages in the general structure of wages of scientific and pedagogical workers, which can be attributed to the legal prerequisites for the deterioration (precarization) of their labour regulation. In addition to the acts of federal legislation regulating the labor of scientific and pedagogical workers, the author analyzes the provisions of the relevant acts of social partnership for the period from 2015 untill 2023. The author highlights the problem of increasing the types of work included by the employer in the employment of the “second half of the day” of scientific and pedagogical workers without paying additional wages. The lack of legal regulation of the distribution of types of work performed by a scientific and pedagogical worker within a 36-hour working week is also noted by the author among the legal preconditions that, with appropriate law enforcement, worsen the conditions of employment of such workers due to the significantly increasing proportion of time that workers spend on achieving performance indicators and efficiency determined by the employer. In the conclusion of the paper, the author justifies amendments to the legislation in terms of regulating a fixed-term employment contract, establishing the share of guaranteed wages in the overall structure of wages, regulating the types of work included in the working hours of scientific and pedagogical workers at the level of a by-law, which cumulatively will promote sustainability of employment conditions for employees and improve their legal status.

Discrimination in atypical employment in the context of fixed-term employment contracts

This article provides an analysis of the jurisprudence concerning the discriminatory nature of a fixed-term employment contract with a particular employee, while other employees in a similar position are subject to indefinite employment contracts.

Objective Reasons on the Part of the Employer as a Premise for Entering into an “Unlimited” Fixed-Term Employment Contract

Abstract The current wording of Art. 251 § 4 point 4 of the Labor Code, valid since 22.02.2016, is an example of a general clause in labor law. At the same time, the “objective reasons” of the so--called “unlimited” fixed-term contracts entered into belong to the clauses that change their meaning depending on the person who applies an established rule of law. The use of “objective reasons on the part of the employer” on purpose to limit the abuse of “temporary employment” should generally be assessed as incorrect. According to this, the Court of Justice of the European Union may judge this regulation to be illegal according to Clause 5 of Council Directive 99/70 / EC of 28 June 1999, and as incompatible with the purpose and the effectiveness of the framework agreement. Therefore, it is necessary to replace the general clause used by the legislator with further, more specific premises of “objective reasons” for entering into “unlimited” fixed-term employment contracts.

الانهاء غیر المشروع لعقد العمل

نظم المشرع انهاء عقد العمل المحدد المدة والغير محدد المدة فبالنسبة لعقد العمل المحدد المدة فإنه ينتهى بتحقق الواقعة المستقبلة سواء بمضي المدة أو بإنجاز العمل المتفق عليه، وليس لأى من الطرفين سواء کان العامل أو رب العمل أية دخل فى انهاءه، وإلا عد هذا الإنهاء غير مشروع حيث أن القانون لم يعطيه هذا الحق، ويکون الطرف المخالف مسئول مسئولية عقدية ويلتزم بتعويض الطرف الآخر عما أصابه من ضرر، أما بالنسبة لعقد العمل غير محدد المدة فيجوز لأى من المتعاقدين انهاءه بشرط اخطار الطرف الآخر کتابة قبل الإنهاء وأن يکون فى وقت مناسب وبسبب مشروع، وفى حالة مخالفة ذلک يصبح المخالف متعسفا في استعمال حقه ويلتزم بتعويض الطرف الآخر، فهذا التعويض يمثل ضمانة من الضمانات التى کفلها قانون العمل المصري الحالي لحماية الطرف المضرور والذى غالبا يکون هو العامل. The legislature regulates the termination of fixed-term and indefinite employment contract, the future event terminates, either by the lapse of the term or by the completion of the work agreed upon. Neither party, whether the employee or employer, has any involvement in the termination of the contract. Otherwise, the termination is unlawful, since the law does not confine him to this right. The party breaching contractual liability and has an obligation to compensate the other party for the damage suffered.In the case of a fixed-term employment contract, however, any contractor may terminate it, provided that he notifies the other party in writing before termination in the event that such violation occurs, the offender will be arbitrarily entitled to exercise his or her right to indemnify the other party.

기간제 근로계약의 해지에 관한 소고 - 근로자의 사직과 민법 제661조의 부득이한 사유를 중심으로 -

사용자의 일방적 의사표시에 의한 근로계약 해지, 즉 해고는 근로기준법에 따라 엄격히 제한된다. 그런데, 근로자의 일방적 의사표시에 의한 근로계약 해지, 사직과 관련하여서는 근로기준법에 별다른 규정이 없다. 이에 근로자의 사직에 대해서는 「민법」의 규정이 적용된다. 「민법」 제661조는 고용기간의 약정이 있는 경우 ‘부득이한 사유’가 있는 경우에 한하여 계약을 해지할 수 있도록 정하고 있다. 이에 사용자가 기간제 근로자의 사직을 수락하지 아니할 경우, 단체협약 취업규칙 근로계약 등에 별도 규정이 없는 이상, 기간제 근로자는 ‘부득이한 사유가 있는 경우’에 한하여 근로계약을 해지할 수 있다. 이러한 규정에도 불구하고 부득이한 사유가 없는 경우라고 하더라도 계약을 자유롭게 해지할 수 있고, 다만 상대방에 대하여 조기사직으로 인한 손해배상책임을 부담할 뿐이라는 해석이 학계와 실무에서 심심치 않게 발견된다. 그런데 이러한 해석에는 별다른 법적 논증이 존재하지 않으며, 있더라도 「근로기준법」 제7조에 규정한 강제근로의 금지가 그 근거로 제시된다. 그러나 「민법」 제661조의 내용, 「근로기준법」 제7조의 내용과 입법취지 등을 고려해보았을 때 ‘부득이한 사유’가 없는 경우에도 기간제 근로자가 사직할 수 있다는 결론은 도출되지 않는다. 기간제근로자의 사직은 실무상 좀처럼 쟁점화 되지 않아 왔다. 이러한 이유에서 기간제 근로자의 사직에 대한 엄밀한 법적 논증도 이루어지지 않았던 것으로 생각된다. 그러나 근로자의 사직이 다른 법률관계와 연계될 경우, 해약의 자유, 사직의 효력발생여부 및 그 시기는 상당히 중요해질 수 있다. 또한, ‘사업의 완료 또는 특정한 업무의 완성에 필요한 기간을 정한 경우’ 2년을 초과하여 기간제 근로자를 사용할 수 있는데, 이 경우에도 「민법」 제661조에 따라 기간제 근로자의 해약의 자유가 제한될 수 있으므로 장기간 근로의 계속 강요의 문제가 현실화 될 수 있다. 이러한 이유에서 기간제 근로계약의 해지, 사직의 효력 발생에 대해 엄밀한 법적 논증이 이루어질 필요가 있다.

Prevalence and utilization of company integration management in Germany: Results of the 2018 BiBB/BAuA survey of employed persons.

ObjectivesThis secondary analysis aims to investigate the implementation of the legally required company integration management (“BEM”) in case of an incapacity for work of at least six weeks and to identify predictors.MethodsDatabase is the representative randomized 2018 BIBB/BAuA Employment Survey of 20 012 employed persons in Germany.ResultsOf the 1367 employees entitled to company integration management, 40% received an offer from their employer and 27% accepted it. In the public sector, half of those who were entitled reported an offer. Among those entitled to company integration management, employees under the age of 30, at risk of dismissal, or with fixed‐term employment contract received an offer particularly rarely. Entitled employees with disabilities or in companies with works/staff councils received disproportionately often an offer of company integration management. Logistic regression analyses reveal strong associations between company integration management offer and the duration of incapacity to work. The probability of receiving an offer is almost halved for those entitled in medium‐sized compared to small companies. The higher the level of educational qualification, the higher are odds ratios for an offer. In companies in which employees were less or not satisfied with their work overall, the chance of a company integration management offer is significantly reduced almost by half. The chance of an offer is more than three times higher in companies with workplace health promotion compared to those without.ConclusionsOnly a minority of eligible employees received an offer that is closely associated with health‐promoting corporate culture and job satisfaction.

ОЦЕНКА ФАКТОРОВ УГРОЗЫ СТАБИЛЬНОСТИ ТРУДОВЫХ ОТНОШЕНИЙ В УСЛОВИЯХ ЦИФРОВОЙ ЭКОНОМИКИ В КОНТЕКСТЕ ПРИМЕНЕНИЯ СРОЧНЫХ ТРУДОВЫХ ДОГОВОРОВ В РОССИИ И ЗА РУБЕЖОМ

Temporary employment is defined in the scientific literature as atypical for the sphere of wage labour and even as an element of precarious employment. Today, fixed-term labour contracts are seen as a mechanism for labour market actors to respond to any shocks in the economy, a way of flexibly regulating the number of employees and reducing "dead" costs for employers. Russian labour law prohibits the conclusion of fixed-term employment contracts for the purpose of avoiding the rights and guarantees provided for workers with whom an indefinite-term employment contract is concluded. But extensive court practice in challenging dismissal due to the expiry of the term of the employment contract shows that a significant proportion of employers conclude fixed-term employment contracts in violation of the requirements of the Labour Code of the Russian Federation, in order to avoid providing labour rights and guarantees to employees. These vio-lations mainly include repeated conclusion of fixed-term contracts for a short period to per-form the same work function, "imposition" of a condition on the fixed-term nature of the con-tract in the absence of the employee's will, in situations where the law requires an agreement of the parties to the employment contract for the conclusion of a fixed-term contract. In the modern economic environment, a form of short-term employment called casual work has developed, which is most often recognised in the literature as informal, precarious employment. Despite this, casual work has become widespread in developed countries, and particularly in jobs related to the on-demand economy, with the use of digital platforms. The negative aspect of the wide use of fixed-term employment contracts in the EU is reflected in the persistent entrenchment of temporary workers in the labour market, whose growth can be restrained only with the assistance of the state. Thus, the analysis of the practice of flexible forms of employment in foreign countries shows that short-term contracts are now widely integrated into the global labour market, which is confirmed by the statistical data on the growth of fixed-term contracts in most coun-tries. This process can hardly be stopped, but, based on the experience of EU countries, it seems possible at least to find a way to adapt to this situation by balancing the rights and interests of workers, employers and the state in such relations and preventing the transfor-mation of fixed-term employment relations into precarious ones.

Nursing practice environment in intensive care unit and professional burnout.

To evaluate and compare the nursing practice environments in Intensive Care Units of a public and private hospital and the prevalence of burnout among nursing professionals. Cross-sectional, descriptive study with a quantitative approach to the data. The data collection took place between October 2018 and March 2019, and it was carried out through a questionnaire with socio-occupational variables and with metrics of intensity. The practice environment was assessed through the Nursing Work Index Revised (NWI-R); and the burnout was assessed by the Maslach Burnout Inventory (IBM). We included professionals with, at least, six months of employment, and those who were on leave or on a fixed-term employment contract were excluded. The sample consisted of 296 professionals. We found Favorable environments in both institutions, however, low results in the subscales autonomy, control and organizational support in the private hospital. The prevalence of burnout among nurses was 2.5% in the public hospital and 9.1% in the private hospital, and among nursing technicians, it was 9.5% and 8.5%, respectively. The control of the environment, autonomy and support were considered critical points, referring to the importance of assessing institutions factors, that can improve the working conditions for the nursing team.

МЕХАНИЗМ РАСЧЕТА ДЕНЕЖНОЙ ВЫПЛАТЫ ПРИ РАСТОРЖЕНИИ ТРУДОВОГО ДОГОВОРА ПО ИНИЦИАТИВЕ РАБОТНИКА – ПРОФЕССИОНАЛЬНОГО СПОРТСМЕНА

To study the issue of establishing a mechanism for calculating the amount of payment in the event of termination of an employment contract at the initiative of an athlete (at his own discretion). Study and logical-content analysis of legislative acts and court decisions on disputes on termination of employment contract at the initiative of a professional sportsman (at his own will); synthesis of concepts and theoretical provisions; generalization of experi-ence of foreign countries. As a results. The analysis of materials of international, foreign and domestic court prac-tice in cases of termination of employment contracts by professional soccer players at their own will allowed to establish the imperfection of the labor legislation of the Russian Federa-tion in terms of the absence of borders and criteria for establishing the amount of compensa-tion to be paid by the employee in the event of termination of the employment contract at his own will, and also allowed to determine the mechanism for calculating the amount of the said payment. It seems that it is correct from the point of view of protecting the rights and interests of professional soccer players' employees and employers-football clubs to establish at the level of the labor legislation a mechanism for calculating the amount of compensation payable in the event of termination of the employment contract at the initiative of the sportsman (at his own will). The amount of this amount should include payments similar to those included in the amount of compensation for training at the transition of a professional soccer club from one professional soccer club to another. In case of conclusion of a fixed-term employment contract with an athlete, the "price of the rupture" of the employment contract at the initiative of the employee should be the amount of his unearned wages and other agreed payments (by analogy with Art. 249 of the Labor Code of the Russian Federation). If an employment contract was concluded as an open-ended one, the amount of compensation to be paid should be a multiple (perhaps three times, by analogy with Art. 181 of the Labor Code of the Russian Federation) the amount of wages of such employee.

Regarding the Legal Issues in relation to Trial System or Proationary period in employment matters

Given the fact that dismissals are not easy, employers will try to use a trial system that allows employees to be hired after fully verifying the quality of their workforce rather than offering permanent employment. However, it is important to regulate the abuse of the system as it could lead to an increase in non-regular employment and unemployment among young people. In this thesis, we looked at the distinction between the trial period and the probationary period, the problem of the trial contract in the fixed-term employment contract, the length and progress of the trial period, the nature of the trial period, and the specific criteria for rejection of this continuing employment after the expiration of the trial period. First, the trial labour contract is a type of employment contract with employer’s termination right by observing and evaluating worker’s competence of work such as work ability, qualities, character, and sincerity, for a certain period of time after hiring as a trainee. In general, trial employment is used for the purpose of temporary employment before entering into permanent employment. On the contrary, the probation period refers to a period set for the purpose of training and training workers’ vocational skills after the official recruitment, and it is used in the sense that it has already been officially recruited, and there is no specific work adequacy evaluation to determine whether or not to be employed. Depending on whether the employment contract is trial or probation, it can result in a substantial difference to the employee, so it is necessary to interpret the employment contract by clearly distinguishing it conceptually. In addition, it is a matter of interpretation of the employment contract according to specific issues, as it is necessary to grasp what meaning is actually used through the employment contract or employment rules Second, employment disputes may arise as to whether it is a contract period or a trial period. In such cases, it is ultimately a matter of interpretation of the parties intention, but if it is interpreted that the purpose and purpose of the period is to evaluate and judge the employee s ability to work, etc. during that period, it should be interpreted as a possible period of use for the protection of the employee. In addition, it would not be easy to accept the position that it is not acceptable to include temporary work in part-time work contracts in consideration of the fact that it is difficult for an employee in a subordinate position to enter into a part-time work contract to claim to exclude them in the absence of clear application laws regarding the part-time work. Third, it can be interpreted as invalid in accordance with Article 103 of the Civil Act that although it may differ depending on the purpose and occupation of the setting, the period of use is generally appropriate for three months, and the period of unfair long-term use is feared to destabilize the status of employees. If there is no reasonable reason for not being able to determine the eligibility of employees during the first period of employment, the employer shall be deemed to be unable to extend the period of use, and if the employer does not actively express to the hirer that it is inappropriate as a full-time employee even though the specified period of use has passed, the hirer shall be deemed to acquire the status as a full-time employee. Fourth, the legal nature of the trial employment contract was regarded as a contract with the right to terminate. Therefore, in the case of a trial employment contract, the employer can terminate the employment contract by exercising the termination right reserved at the end of the trial period. However, as an employee during the trial period has an employment contract as well as a formal employee, exercising the right to terminate is equivalent to dismissal under the Labor Standards Act.