The provisions prescribed by the Labor Law affect both the employer and the employee, and in specific situations the employment contract is subject to changes. In what circumstances, under what conditions, and by whom?
The Labor Law prescribes the conditions under which an employment contract, once concluded, is subject to change at the initiative of, in this case, the stronger contracting party - the employer, i.e. due to which circumstances the employer is enabled to make an offer to the employee to change the contract.
One of the reasons why an employer can make such an offer to an employee is a transfer to another suitable workplace due to the needs of the work process and organization. The law, however, although it prescribes the conditions and protocol for concluding the annex to the employment contract, as well as the consequences of accepting or rejecting the offer for transfer to another workplace, does not define the circumstances that can be subsumed under the general terms that it cites as reasons for justification, that is, it does not specify what is practical means the need for process and organization of work. It is clear, taking into account the breadth of the economy, the diversity of jobs and organizations, as well as the employer's freedom to decide on the strategies he will apply in his business, that the need for processes and organizations is a concept that cannot be predicted in advance and defined in detail by law, but this issue is of particular importance due to Article 179 paragraph 5 point 2, which stipulates that the refusal to conclude an annex to the employment contract by the employee, i.e. the refusal of an offer to conclude an annex to the employment contract made due to the needs of the work process and organization, is grounds for cancellation of the employment contract by employer.
As the law does not provide precise definitions, judicial practice has over time taken a consistent position in defining and elucidating the generic concept of process needs and work organization, perhaps even more than allowed, which will be discussed further on.
In order to specify the aforementioned vague legal provisions, the court primarily takes the position that the offer that follows the conclusion of the annex to the employment contract for this legal reason must contain specific reasons for the transfer to another suitable job. In this sense, the offer to the employee, that is, the notification from Article 172 of the Law, must explain the circumstances that led to such a business decision. The reasons for transfer must refer to concretely changed circumstances that require a change in the process and organization of work. An offer that, as a reason for transferring an employee to another suitable job, contains only a legal determination due to the needs of the work process and organization entails the consequence of invalidating the annex to the employment contract as illegal in court proceedings. This part of the judicial examination of the legality of the contested annex represents a formal examination of the same, that is, determining whether the legal procedure was properly followed in terms of the elements that the employer's acts - the annex to the employment contract and the notification (offer) must contain.
But in addition to the aforementioned formal examination of the legality of the offer in the sense of whether it contains a specific reason as a mandatory element for the offer made, the court goes one step further in the 300 procedures for the annulment of the annex to the employment contract and enters into the question of the justification of the employer's business decision. The Court of Appeal in Belgrade, in its judgment Article 1 4404/2021 of October 28, 2021 and other numerous decisions on the same issue, advocates the position that the transfer of an employee must be conditioned by the real needs of the work process and organization, that is, in the absence of such reasons, the annex to the employment contract illegal. The question arises from where the court derives this authority. This controversial position of the court opens the question of what is to be considered a so-called real need and who is competent to evaluate it and decide on it. The above-mentioned court action has as a result unreasonably long procedures in which facts are determined that are not relevant for making a decision on the legality or illegality of the annex to the employment contract, and further goes widely beyond the scope of its powers and dares to appreciate the real need of the employer - the real need of private capital and ultimately the justification of business decisions aimed at managing private property. The same jurisdiction that the court arbitrarily appropriated, in addition to being illegal, cannot be justified even in order to protect the employee as an economically weaker party from abuse by the employer, given the fact that the legislator removed the same possibility with Article 171 paragraph 2 of the Labor Law precisely defined what is to be considered a suitable job. Appropriate work is considered to be work for which the same type and level of professional education as specified in the employment contract is required. Interpreting Article 171 of the Labor Law as a whole, one comes to the conclusion that in paragraph 1, the employer is given the authority to freely dispose of his resources, while in paragraph 2, the framework within which the employer must operate is limited in order for such disposal to be legal.
Due to such precision, the role of the court in the process of assessing the legality of the annex to the employment contract due to the transfer to another suitable job due to the needs of the process and work organization should be reduced to a formal examination of the offer made, i.e. whether it contains elements prescribed by Law, i.e. whether the employee is being transferred to the appropriate job in the sense of Article 171 paragraph 2 of the Law as well as whether the employee has been informed of the reasons for the offer and no further than that.
Contact: Branka Dželalija, Senior Associate
E-mail: branka.dzelalija@ivvk.rs
02/11/2023
