Zagreb, 16 November 2009

SUBJECT: Proposed amendments to Art 3, Art 65 para 1 and Art 141 para 2 of the Employment Bill with the text of the final draft bill.

The Employment Bill with the text of the final draft bill, drawn up by the Ministry of Economy, Labour and Entrepreneurship is part of the agenda of the 15th sitting of the Croatian Parliament.
We wish to draw your attention to the fact that Article 3, which prescribes exceptions from the application of the section which determines working hours (including an exception for an employer’s family members who live in a joint household with the employer and who carry out certain tasks for the employer under terms of employment), does not mention an employer’s same-sex partner who lives in a joint household with the employer and who carries out certain tasks for the employer under terms of employment.
Same-sex partners are also not mentioned in Article 65 of the Bill, which deals with the right to freedom from the obligation to work with pay (paid leave) for important personal needs, especially in connection with the serious illness or death of a close family member, including marital or extramarital partner. Considering that this is a question of a right which a worker uses in order to care for an ill person, or because of the death of a person close to them, it is unthinkable that such a right is not available in the case of the death or illness of a same-sex partner.
Article 141 para 2 which sets out to restrictions to voting rights on workers’ councils for members of a company’s managerial or supervisory bodies and members of their family, does not prescribe the same restrictions for their same-sex partners, which could lead to cases of conflict of interest.

Article 3 of the Constitution of the Republic of Croatia, among other things, defines equality and the rule of law as the greatest values of the constitutional order of the Republic of Croatia. Therefore, immediately after its basic provisions it determines the protection of human rights and fundamental freedoms. In connection with this, Article 14 of the Constitution of the Republic of Croatia states that every person in the Republic of Croatia has rights and freedoms irrespective of numerous differing characteristics, whether those differing characteristics are explicitly defined in the Article or are “other characteristics”. The fact that the second paragraph of the same Article states that everyone is equal before the law, that equality also applies to persons of homosexual orientation. The right to equality is subject to restrictions in accordance with Article 16 of the Constitution of the Republic of Croatia which must be appropriate to the needs of those restrictions with the aim of protecting the freedom and rights of other persons and the legal order, public morals and health but emphasising that every restriction of freedom and rights must be appropriate to the nature of the need for that restriction and set out in every individual case.

The Same-Sex Unions Act (OG 116/03) bans discrimination on the basis of a same-sex union or the fact of homosexual orientation. The Gender Equality Act (OG 82/2008) and the Anti-Discrimination Act (OG 82/2008) ban discrimination on the basis of sexual orientation.

In Article 13 of the Treaty of Amsterdam, the European Union promotes the “carrying out of suitable actions for the prevention of discrimination based on sex, racial or ethnic origin, religion or belief, invalidity, age or sexual orientation”. European Council Directive 2000/78/EU of 27 November 2000 obliges member states to pass legislation which forbids discrimination, on several bases including sexual orientation, in employment.
In 2003, the European Court of Human Rights brought a judgement against the Republic of Austria for transgressing Article 14 in connection with Article 8 of the European Convention on Human Rights when the Austrian authorities refused to interpret the legal definition “life partner” in the context of same-sex unions in relation to a case of inheritance of residential rights. The court found that unequal treatment of same-sex couples (in comparison with extramarital different-sex couples) breaches the European Convention on Human Rights.
In order to harmonise the Employment Bill with positive international and national legislation, it is necessary to make the following amendments:

Limitations in application
Article 3
(1) The provisions of this Act on working hours, breaks and daily and weekly holidays do not apply to workers on seagoing fishing boats.
(2) The minister responsible for employment (hereinafter: the minister), with the agreement of the ministry responsible for fishery, will adopt regulations on working hours, holidays and leave for workers on seagoing fishing boats.
(3) The provisions of this Act concerning working hours, breaks and daily and weekly holidays do not apply to workers who conduct an employer’s business in a managerial capacity as authorised by statute, articles of association, memorandum of association or other rules of the employer and who independently makes decisions about the organisation of work and business of the employer, nor do they apply to workers who are family members or same-sex partners of an employer who is a physical person if they live in a joint household with the employer and carry out certain tasks for the employer under terms of employment, if they have agreed with the employer independence in their determination.
Paid leave
Article 65
(1) During a calendar year, a worker has the right to exemption from the obligation to work with pay (paid leave) for important personal needs, but especially in connection with entering into marriage, spouse giving birth, serious illness or death of a close family member or same-sex partner.
(2) A worker has the right to leave under paragraph 1 of this article in a total duration of seven working days annually unless differently prescribed by collective agreement, work regulations or employment contract.
(3) A member of the close family under paragraph 1 of this article is considered to be: spouse, direct blood relatives and their spouses, brothers and sisters, stepchildren and adopted children, children entrusted to care and upbringing or children cared for outside their own family, stepfather and stepmother, adoptive parent, a person whom the worker is obligated by law to maintain, and a person who lives with the worker in an extramarital union.
Voting rights
Article 141
(1) All workers who are employed with a certain employer have the right to vote and be elected.
(2) Members of the employer’s managerial and supervisory bodies and members of their families and their same-sex partners as well as workers under Article 127 paragraph 1 of this Act do not have the right under paragraph 1 of this Article.
We therefore appeal to you to propose amendments to the Croatian Parliament by which the provisions under the above articles of the Employment Bill will be changed in a way that they are no longer discriminatory against workers who live in same-sex unions.