The Hierarchy of the Sources of Employment Law
Employment relationships are governed by regulations coming from a number of sources. The same issue might be provided for in legislation, collective bargaining agreements and in the employment contract itself. The sources outlined below are the main regulations governing employment relationships and are applied in the following order:
Laws
Collective bargaining agreements (generally binding and with a normal binding effect)
Contract of employment
Instructions of the employer (by reason of the right to supervise)
The general rule is that applicable legislation and the collective bargaining agreements set minimum limits for e.g. notice periods and salaries. It is not possible to agree on provisions in the contract of employment which fall short of the minimum limits. Nevertheless, the parties can freely negotiate more favorable terms of employment for the employee.
It is important to pay particular attention to the peremptory nature of individual provisions in employment legislation, for there are several peremptory provisions. Furthermore, within a specific law, some provisions may be mandatory while other provisions may be departed from in specified circumstances. The legislation includes provisions that may be departed from when this is provided for in a collective bargaining agreement, provisions that may be departed from when otherwise agreed upon locally, i.e. company-specifically between the company and the employee representative and, finally, provisions that may be departed from when agreed upon between the employer and employee.
A good example is the Working Hours Act. The employer is obliged to pay the employee a salary increased by 50% for the first two hours of overtime work and for each hour thereafter a salary increased by 100%. This may be deviated from, provided it is done by a nation-wide collective bargaining agreement (agreement based on a collective bargaining agreement). The employee has a statutory right to a continuous period of rest of 11 hours between work shifts, provided that regular working hours are observed. The period of rest may be shortened temporarily by agreement between the employer and the employee representative, provided this is necessary for the proper performance of the work, and the employee gives his/her consent (local agreement). The employee is generally entitled to a break (lunch hour) lasting one hour but this may be deviated from by agreement between the employee and employer, provided the break lasts for at least half an hour (agreement between the employer and employee).
The best way to establish the current terms of employment in a given business sector is to find out whether the employer in question is subject to a generally binding collective bargaining agreement and to examine its regulations.