The application for a contribution
under the targeted programme for the protection of employment Antivirus also
includes a draft agreement concluded between the Labor Office of the Czech
Republic and the applicant. Each applicant must send this signed agreement
together with the duly completed application to the Labor Office. What is the
legal regime of this agreement and how to defend yourself in case of violation?
The agreement is concluded in
accordance with the conditions of the targeted Antivirus Programme approved by
the Government of the Czech Republic by Resolution No. 353/2020 of 31 March
2020 pursuant to Section 120 of Act No. 435/2004 Coll., On Employment, as
amended (hereinafter as “Employment Act”and the“Agreement”)
Targeted programmes dealing with
the employment are part of an active employment policy, and a contract for the
provision of contributions is concluded under it pursuant to Section 119 of the
Employment Act.
In view of administrative law, in
our opinion, this is a subordinating public contract in the sense of § 161 of
the Administrative Procedure Code. There is the Labor Office acting as a public
administration entity as a first party, and as a second party, the applicant
who is the employer to whom the Labor Office provides a financial contribution
for partial reimbursement of wage compensation costs due to employees under the
Labor Code in connection with the spread of COVID-19 caused by new coronavirus
SARS-CoV-2. This should, as a result, help employers overcome the economic
problems caused by the coronavirus crisis, prevent mass redundancies and thus
be a tool for employment protection.
How to defend yourself if the Labor
Office violates the agreement?
Following the launch of the
Antivirus Programme, the Ministry of Labor and Social Affairs additionally
excluded some groups of persons from the group of persons entitled to apply for
a grant with its interpretative opinions, or reduced the costs that can be
covered by programme contributions. The Labor Office thus completely or
partially rejects some applications due to these reasons.
E.g. Antivirus Programme
contributions are not automatically paid due to the conflicts of interest to
cover the costs of an employee who is also a member of the employer's statutory
bodies, contrary to the case law that the conclusions on conflicts of interest
cannot be automatically applied in every case where the statutory body
concluded an employment contract for both parties. On the contrary, each
specific case must be assessed individually, taking into account the nature of
the work performed by the employee.
We believe that in some cases this
procedure may be contrary to law, as the parties to a public contract are bound
by this contract (agreement) and in accordance with Section 159 (4) of the Code
of Administrative Procedure, a public contract is always assessed according to
its actual content. It is therefore not possible for one of the parties to the
contract to change the terms of the agreement unilaterally.
Administrative justice
How can I defend myself if the
Labor Office has rejected my application? Disputes arising from the law of the public
contracts are decided in dispute proceedings pursuant to Section 141 of the Code
of Administrative Procedure by an administrative body superior to an
administrative body that is a party to a public contract (using Section 169 (1)
(d)). In this case, the superior body will be the Ministry of Labor and Social
Affairs (hereinafter as a "MLSA"). An appeal cannot be lodged
against the decision of the MLSA.
An adversarial procedure can be
likened to the civil proceedings to some extent. As in civil proceedings, these
proceedings are initiated on a motion addressed to the competent administrative
authority (in this case the MLSA), which must specify what is the subject of
the dispute and contain the petit, i.e. what the claimant is seeking in the
dispute. Furthermore, the administrative body bases its decision-making
primarily on the evidence proposed to it by the parties to the proceedings.
Apart from the decision on the merits (rejection or grant of the petition), the
dispute may be settled by a settlement concluded between the petitioner and the
respondent (Labor Office), which is subject to the approval of the MLSA.
Given that the decision of the
Ministry of Labor and Social Affairs is a final decision against which no
appeals can be filed, the applicant has the right to sue the MLSA within the
administrative court in proceedings on an action against a decision of an administrative
body pursuant to Section 65 et seq Code of Administrative Justice.
The defendant in this proceeding
will be the MLSA. The action may be brought within two months of the decision
being notified (delivered) to the applicant. The action does not have
suspensory effect, but the court may grant suspensory effect at the request of
the plaintiff. If the action is well-founded, the court will annul the
contested decision and return the case to the MLSA for further proceedings. In
further proceedings, the MLSA is then bound by the legal opinion of the court
contained in the annulling judgment.
Civil justice
However, the procedure described
above is unlikely to apply to disputes under Article IX of the Agreement (hereinafter
as a "Settlement"). By this Settlement, the employer waives
the right for compensation for damages against the Czech Republic caused by
crisis measures taken in connection with the occurrence of coronavirus under
the Crisis Act, arising from the employer's legal obligation to reimburse
employees. The employer is entitled to a contribution according to the agreement.
It is not true that the competent
administrative body according to Section 169 of the Code of Administrative
Procedure is automatically competent to decide all disputes on public
contracts. A public contract may also contain elements of private law, where
the courts within the civil court have jurisdiction to decide disputes from
that part of the contract which contains private law elements. JUDr. David
Hejč, Ph.D., doc. JUDr. Petr Havlan then states in their article Substantive
jurisdiction to decide disputes arising from public law contracts - practical
issues of the dualism of law:
"However, within the
framework of the arrangements contained in the public contract, it is necessary
to distinguish those that form certain private law parts only inserted into a
public contract. Such arrangements are not anticipated by the law governing the
relevant public law contract and are separable from the public law contract,
resp. materially and legally independent to the public contract. This is the
case of concluding a private contract (i.e. not fulfilling the conceptual
features of a public contract mentioned in the previous part of the text) in a
public contract, which must be seen as if two contracts had been concluded,
even if both were part of one document in writing."
We believe that the settlement
contained in the agreement can be considered as a private law provision, which
was inserted into a public contract, factually and legally independent against
the agreement, and to solve disputes arising from this provision will be the
competent civil courts.
Conclusion
If you feel that your rights
arising from the agreement have been violated by the Labor Office, you have the
opportunity to defend yourself in the form of administrative proceedings, respectively
in the civil proceedings if the dispute concerns Article IX. agreement. The
administrative proceedings are initiated by submitting a proposal to the
Ministry of Labor and Social Affairs. If the MLSA rejects your proposal, there
is also the possibility of defense in the administrative judiciary. Given that
there is no experience so far with disputes arising from agreements concluded
under the targeted Antivirus Programme, it will be interesting to see how the
competent authorities will react.
Authors: Jiří Mačát a Aneta Koubková
