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Employment &

Labour Law

2020
A practical cross-border insight into employment and labour law 10 th

Edition

Featuring contributions from:

ACG International

AnJie Law Firm

ANZ Partners

Arias

ASLABOR VALDÉS

BAS - Sociedade de Advogados, SP, RL

Breakthrough Attorneys

Carnelutti Law Firm

CDZ Legal Advisors

CMS Holborn Asia

De Law

Attorneys at Law

EmpLaw Advokater AB

GERLACH | Littler

Hamdan AlShamsi Lawyers and

Legal Consultants

Hogan Lovells

Homburger

LEGALIS

Legalline

Lopes Muniz Advogados Associados

McCann FitzGerald

ȌMJM Limited

Monereo Meyer Abogados

People + Culture Strategies

SANDIVA Legal Network

Table of Contents

Q&A Chapters

12

Albania

Deloitte Legal Sh.p.k.: Sabina Lalaj & Edita Poro

20

Australia

People + Culture Strategies: Joydeep Hor

1 26

Austria

GERLACH | Littler: Roland Gerlach & Markus

Loescher

33

Bahrain

Hassan Radhi & Associates: Ahmed Abbas &

Sayed Jaffer Mohamed

40

Belgium

De Law: Christophe Delmarcelle

Brazil

Lopes Muniz Advogados Associados: Zilma

Aparecida S. Ribeiro & Fábia de Almeida Bertanha 55
Chile Porzio Ríos García: Ignacio García & Fernando

Villalobos

62
China

AnJie Law Firm: Zhenghe Liu & Samuel Yang

70

Colombia

ASLABOR VALDÉS: Germán Gonzalo Valdés

Sánchez, María Ximena Valdés Luna & Juan Diego

Valdés Rocha

76

Croatia

Mitrov

84

Cyprus

Y. Karamanolis & Associates LLC: Yiannis

Karamanolis & Andreas Karamanolis

92

Czech Republic

100

Finland

Waselius & Wist: Jouni Kautto

107

France

Latournerie Wolfrom Avocats: Sarah-Jane Mirou

Hungary

Rátkai Law Firm: Dr. Ildikó Rátkai

127
117

Germany

158

Ireland

McCann FitzGerald: Mary Brassil & Stephen Holst

149
Italy

Carnelutti Law Firm: Giuseppe Bulgarini d"Elci &

Marco Sartori

Japan

Mori Hamada & Matsumoto: Shiho Ono & Yuko

Kanamaru

167

Kosovo

Deloitte Kosova Sh.p.k.: Ardian Rexha & Vegim

Kraja 178

Luxembourg

LEGALIS: Jackye Elombo

185
Macau

Rato, Ling, Lei & Cortés - Advogados:

Pedro

Cortés & Helena Nazaré Valente

193

Mexico

Mijares, Angoitia, Cortés y Fuentes, S.C.: Claudio

Jiménez de León, Karla Almeyra Díaz &

Damián Alejandro Gómez Corona

200

Mozambique

BAS - Sociedade de Advogados, SP, RL / Legalline:

Pedro Madeira de Brito & Lara Tarciana Sousa dos

Mucudos Macamo

207

Netherlands

ACG International: Edith N. Nordmann

214

Nigeria

Udo Udoma & Belo-Osagie: Jumoke Lambo &

Mary Ekemezie

223

North Macedonia

Debarliev, Dameski & Kelesoska, Attorneys at Law:

Martina Angelkovic & Ljupco Cvetkovski

135

Indonesia

SANDIVA Legal Network: Arthur Wailan Sanger &

Allova Herling MengkoPanama

Arias: Siaska SSS Lorenzo

231

Pakistan

ANZ Partners: Nabeel Rehman

142
India

Khaitan & Co: Anshul Prakash & Kruthi N. Murthy

239
247

Bermuda

MJM Limited: Fozeia Rana-Fahy

48

Poland

CDZ Legal Advisors: Piotr KryczekPhilippines

SyCip Salazar Hernandez & Gatmaitan: Dante T.

Pamintuan & Leslie C. Dy

253
260
294

Singapore

CMS Holborn Asia: Wei Ming Tan & Lakshanthi

Fernando

287

Senegal

SOW & Partners: Papa Massal SOW & Codou SOW

SECK 278

Romania

ONV LAW: Lorena Ciobanu & Ana PetrescuPortugal

BAS - Sociedade de Advogados, SP, RL: Dália

Cardadeiro & Alexandra Almeida Mota

269

Table of Contents

302

Slovenia

310
Spain 318
325
333
347
355
362
368
382
375
392
339

Employment & Labour Law 2020Chapter 23

178

Kosovo

Deloitte Kosova Sh.p.k.Vegim Kraja

Ardian Rexha

Kosovo

An employment contract must, at least contain the following mandatory terms and conditions: details of the employer and the employee; job description; place of work; working hours; commencement date and end date of employment; salary and other allowances or incomes; and details of annual leave. If the employment contract contains no indications of the duration of the employment, it is implied that the term of employment is for an indefinite period of time. Furthermore, a contract for a fixed period of time that is expressly or tacitly renewed for a continued period of employment of more than 10 years shall be implied to be a contract for an indefinite period of time.

1.5 Are any minimum employment terms and

conditions set down by law that employers have to observe? The Law on Labour provides for a minimum age for entering into an employment relationship (15 years of age), minimum days of annual leave (four weeks), minimum salary which is set annually by the Government of Kosovo, and minimum break periods (30 minutes). The minimum salary is proposed by the Socio-Economic Council (SEC) based on the criteria and procedures laid down in the Administrative Instruction of the

Ministry of Labour and Social Welfare.

1.6 To what extent are terms and conditions of

employment agreed through collective bargaining? Does bargaining usually take place at company or industry level? The Law on Labour provides that the terms and conditions of employment may be agreed in a collective contract, which is defined as an agreement between employees' and employers' respective organisations that lays down the rights, duties and responsibilities deriving from an employment relationship. The collective contract may not contain any less favourable rights for the employee and employer than the rights defined in the Law on Labour.

2 Employee Representation and Industrial

Relations

2.1 What are the rules relating to trade union

recognition? In accordance with the Law for Organising Trade Unions in Kosovo, workers' organisations must be registered at the former

1 Terms and Conditions of Employment

1.1 What are the main sources of employment law?

The main sources of employment law in the Republic of Kosovo are: v &RQVWLWXWLRQRIWKH5HSXEOLFRI.RVRYR v /DZRQ/DERXU1R/ v /DZRQ6DIHW\DQG+HDOWKDW:RUN1R/ v /DZRQ)RUHLJQHUV1R/ v /DZRQWKH3URWHFWLRQRI%UHDVWIHHGLQJ1R/ v /DZIRU2UJDQLVLQJ7UDGH8QLRQVLQ.RVRYR1R

04/L-011.

v /DZRQ6WULNHV1R/ v /DZRQ6RFLDO(FRQRPLF&RXQFLO1R/ v /DZRQ/DERXU,QVSHFWRUDWH1R v /DZRQ3URWHFWLRQRI:KLVWOHEORZHUV1R/ v /DZRQWKH3URWHFWLRQIURP'LVFULPLQDWLRQ1R/ Other sources of employment law include a number of regu- lations and administrative instructions. In addition, civil serv- ants' employment is addressed by separate laws and regulations.

1.2 What types of worker are protected by employment

law? How are different types of worker distinguished? The Law on Labour provides special protection for employees in the private and public sectors, as well as employees whose employment is governed by a special law, if the special law does not address certain issues deriving from the employment rela- tionship. The Law on Labour also protects foreign employees and persons without citizenship who are employed in the terri- tory of the Republic of Kosovo. The Law on Labour accords special protection to employed, pregnant and/or breastfeeding women, employees under the age of 18, as well as employees with disabilities.

1.3 Do contracts of employment have to be in writing?

If not, do employees have to be provided with specific information in writing? Article 10 of the Law on Labour specifies that employment contracts have to be in writing and must be signed by both parties, the employee and the employer.

1.4 Are any terms implied into contracts of

employment?© Published and reproduced with kind permission by Global Legal Group Ltd, London

179Deloitte Kosova Sh.p.k

Employment & Labour Law

2020
This matter is not addressed in the applicable legislation. It may, however, be regulated through an agreement between the employer and the employee.

3 Discrimination

3.1 Are employees protected against discrimination? If

so, on what grounds is discrimination prohibited? The Constitution of the Republic of Kosovo, the Law on Labour and the Law on Protection from Discrimination provides employees with protection against all forms of discrimination. Any discrimination that includes exclusion or preference made on the basis of race, colour, sex, religion, age, family status, political opinion, national extraction or social origin, language or trade-union membership, which has the effect of nullifying or impairing equality of opportunity or treatment in employ- ment, is prohibited.

3.2 What types of discrimination are unlawful and in

what circumstances? All types of discrimination are unlawful (direct and indirect). Discriminatory behaviour that is motivated by more than one ground or which is committed more than once, or which has lasted for a long period of time or had harmful consequences espe- cially for the victim, is considered a severe form of discrimination. However, any differentiation, exclusion or priority given in rela- tion to a specific workplace, based on determined criteria required for that workplace, will not be considered discrimination.

3.3 Are there any special rules relating to sexual

harassment (such as mandatory training requirements)? Sexual harassment is strictly prohibited. Under the Law on Protection from Discrimination, the Ombudsperson and the Office for Good Governance within the Office of Prime Minister are entitled to conduct general training concerning any type of discrimination; however, such training is not mandatory.

3.4 Are there any defences to a discrimination claim?

According to the Law on the Protection from Discrimination, any persons or group of persons, may file a complaint to the Ombudsperson and/or lawsuit before the competent court related to any discriminatory behaviour. Associations, organi- sations or other legal entities may initiate or support legal proce- dures on behalf of claimants, with their consent, for the devel- opment of administrative or judicial procedures foreseen for the implementation of obligations set in the Law on Protection from

Discrimination.

3.5 How do employees enforce their discrimination

rights? Can employers settle claims before or after they are initiated? Any person who claims to be a victim of discrimination, under the provisions of the Law on Protection from Discrimination, has the right to file a lawsuit against the respondent and to take all legal actions to the competent court. Claims can be settled at any time, and at the discretion of the applicant, a mediation and reconciliation procedure could also be used for settling the claim. Ministry of Labour and Social Welfare (MLSW), which recently merged with the Ministry of Finance. A trade union association must have at least 10 members. The Trade Union Confederation may be registered at the MLSW, if within it operate at least two Federations of Trade Union of various activities, the member- ship of which is at least 10% of employees at the country level. Unions can start and develop their activity, only when registered with the MLSW.

2.2 What rights do trade unions have?

The trade union is recognised as a legal person and is entitled to represent its members before employers and public author- ities in relation to any matter involving collective negotiations for employees; in particular, in the promotion of social dialogue, economic and social rights and labour relations, as well as managing its resources for protecting the rights of employees, etc.

2.3 Are there any rules governing a trade union"s right

to take industrial action? According to the Law for Organising Trade Unions in Kosovo, a trade union can undertake actions such as protests and employee strikes in accordance with international conventions, applicable laws and trade union statute, in order to exercise pressure for the fulfilment of trade union requirements. The taking of industrial action is also governed by the Law on Strikes, which guarantees the elementary right of the employee and trade union bodies. The use of violence and undertaking of punitive measures by the employer against employees who have participated in a protest or a trade union strike is prohibited.

2.4 Are employers required to set up works councils? If

so, what are the main rights and responsibilities of such bodies? How are works council representatives chosen/ appointed? The Kosovo legal framework has no provisions relating to the establishment of works councils by the employers. However, works councils may be established based on a mutual agreement between employers and employees.

2.5 In what circumstances will a works council have

co-determination rights, so that an employer is unable to proceed until it has obtained works council agreement to proposals? There are no provisions in the applicable legislation addressing this matter.

2.6 How do the rights of trade unions and works

councils interact? Since there are no provisions that regulate the establishment of works councils, the interaction of trade unions and works coun- cils is not defined either. However, in case of establishment of such councils, the interaction between these two unions may be regulated by a mutual agreement.

2.7 Are employees entitled to representation at board

level?© Published and reproduced with kind permission by Global Legal Group Ltd, London

180Kosovo

Employment & Labour Law

2020
vGX ULQJWKHILUVWVL[PRQWKVRIPDWHUQLW\OHDYHSD\PHQWLV made in an amount equal to 70% of the employee's basic salary; and vGX ULQJWKHIROORZLQJWKUHHPRQWKVPDWHUQLW\OHDYHLVSDLG by the Government of Kosovo, in an amount equal to 50% of the average salary in Kosovo. The employed woman then has the right to extend her mater- nity leave for another three months without payment. The employer may not terminate the employment relationship of a woman whilst they are on maternity leave, except on the grounds of collective dismissal.

4.3 What rights does a woman have upon her return to

work from maternity leave? The Law on Protection of Breastfeeding specifies that every employed breastfeeding woman is entitled to one or two hours of paid time each day, at the beginning, in the middle or at the end of the working hours, in agreement with the employer. In order to claim such time, she shall notify the employer in writing and provide the certificate issued by the doctor, which confirmsquotesdbs_dbs8.pdfusesText_14