Nádas, György

Sipka, Péter Máté

University of Debrecen Electronic Archive

Curentul Juridic – Juridical Current 
2017, Vol. 70, No. 3, pp. 118-123 
 
 
 
 
 
 
 
THE NEW CHALLENGES OF OSH REGARDING  
THE MODIFIED ROLE OF LABOUR LAW
1
 
 
 
György NÁDAS

 
Péter SIPKA

 
 
 
ABSTRACT: In the past decades the type of employment has changed, wider range of 
workers has appeared in the labour market protected by labour law. Thus, the classical 
framework of OSH gives no longer enough protection for all types of workers, especially for 
the ageing workforce. In this context, the legislator has to create a legal environment, with 
which elderly workers get protection for their medical status. As a starting point, this 
settlement raises questions especially in the field of equal treatment. According to this 
principle the employer is obliged to consider equal treatment in employment relationships. 
Our hypothesis is that the present principle of equal treatment cannot be held in next 
decades because of the ageing labour force, therefore a new legal solution must be 
developed to deal with the different challenges of the different types of workers. 
 
KEYWORDS: occupational safety and health; equal treatment;ageing society; labour law 
JEL CODE: K31, K32 
 
1. INTRODUCTION 
 
Every economic system requires a customized legal basis, with which the legal frames of 
operation can be presented. This demand generated many modifications in the labour 
market in the past decades, and the classical solutions of labour law have changed. In the 
legal literature noticeable papers can be found in which the authors try to re-define the 
concept of labour law (e.g. Davidov, Langille (eds) 2011), but a widely accepted result 
has not been presented yet. As a common denominator the scholars accept, that there are 
some fundamental rights, which are typically a characteristic in labour law and must be 
present in every work-related legal relationship. In this context another question can be 
also raised: does the right to work mean a lifelong protection for the workers, namely do 
people have the right to work in their older ages as well? 
                                                          
1 The paper is part of the K117009 „The requirement of equal opportunity employment in he framework of HR 
tendencies reflecting changing expectations in labor law” research project, National Research, Development and 
Innovation Office, contract registration number K117009. 
 
 Dr., Associate professor, University of Debrecen, Faculty of Law, HUNGARY.  
 Dr., Senior lecturer, University of Debrecen, Faculty of Law, HUNGARY.  
 
  
 
 
 
 
 
CURENTUL JURIDIC                                                                                                      119 
 
On the other hand, the complexity and diversity of the legal relationships indicates that in 
some cases we can observe the “struggle of rights” where in special forms of employment 
special rights are more presented; in other relationships other tones are stronger. 
Therefore, some points of view creating employment relationship generate a choice of 
values as well. At this point we have to observe that there are some kinds of rights, which 
must appear in all legal relationships, thus the question whether a “core of rights” exists 
arises. For this question the legal literature gives a positive answer, and notable scholars 
think that there must be some basic rights, which must be applied in all labour-related 
relationships (Lynk, 2006). 
Accepting this idea, it must be also examined which rights are so important and 
fundamental, so that their presence is needed. We think, that the basic rights are those 
cited in the Charter of Fundamental Rights of the European Union.
2
 Therefore the starting 
point of this paper is the principle, according to which no matter in what kind of legal 
relationship a person is employed, the rights written in the Charter must prevail.  
This principle is also accepted and applied by the CJEU
3
. In the mentioned decision the 
Court declared, that EU law is to be interpreted as a national court adjudicating in a 
dispute between private persons falling within the scope of Directive 2000/78/EC, when 
applying provisions of national law in order to interpret those provisions in such a way 
that they may be applied in a manner that is consistent with the directive or, if such an 
interpretation is not possible, to set aside, where necessary, any provision of national law 
that is contrary to the general principle prohibiting discrimination on grounds of age. 
Neither the principles of legal certainty and the protection of legitimate expectations nor 
the fact that it is possible for the private person who considers that he has been wronged 
by the application of a provision of national law that is at odds with EU law to bring 
proceedings to establish the liability of the Member State concerned for breach of EU law 
can alter that obligation. As a result of this decision it can be accepted, that some 
fundamental rights of the employee (stated in the Charter) must be applied without any 
exclusion and – in some cases – against the national law. 
 
2. EQUAL TREATMENT: AN ISSUE IN THE LIGHT OF AGEING 
 
Another important issue in the labour market is how these general principles work in 
practice. It is widely accepted, that the main rights of workers must be ensured by the 
employer, and during this, the principle of equal treatment must be also guaranteed. 
According to this, EU law states in many legal sources, that two principles, namely the 
equal treatment and health and safety at work are the most protected ones, therefore these 
two rights must prevail in all legal relationships (Bercusson, 2009). Thus, a big challenge 
of labour law of the future is to create a legal framework, in which these rights can both 
predominate.  
In addition, according to the database of EU
4
 ageing is one of the greatest social and 
economic challenges of the 21
st
 century for European societies. It will affect all EU 
                                                          
2 case 2000/C 364/01 
3 case C- 441/14 
4 Population structure and ageing, source: http://ec.europa.eu/eurostat/statistics-explained/index.php/ 
Population_structure_and_ageing 
  
 
 
 
 
 
120                                                                                          György NÁDAS, Péter SIPKA 
 
 
 
countries and most policy areas, therefore the needs of the employee will be 
miscellaneous, and there will be collision between the demand of the younger and older 
workers. In this context not only the types of working forms, but the need of the worker 
will be shifted, so the legislator has to create the legal solutions with which a customised 
legal protection can be attained.  
The CJEU offered a possible solution for this issue in the above mentioned decision: 
expanding the scope of direct effect can result, that no matter in which legal environment 
a worker is employed, the main (basic) principles are presented and accepted. The 
problem is how practice will deal with this idea, will it be accepted that with this new 
approach the provisions of Article 288
5
 of the Treaty on the Functioning of the European 
Union will eliminate. We think, that this decision is a breakthrough for the practice, 
because the clear and stated principles can be enforced in a wider range of legal 
relationships, therefore more types of working forms will be included. Accepting this we 
can state, that principle of equal treatment will approach a standard level in different 
forms of contracts and it must be considered in more legal relationships.  
Equal employment first of all means the equality between certain employees or groups 
of employees that should be fulfilled and ensured. Namely, the employer – neither the 
legislator nor the judicature in wider sense – should not differentiate between persons 
illegally, without cause, disproportionately or arbitrarily (Zaccaria, 2015). In connection 
to the ageing issue it can be accepted, that workers with different ages have different 
demands during their work. This means the employer has to customise the treatment of 
the worker by drawing distinction between them on the basis of their age. Until nowadays 
this problem has not been in evidence because the retirements at relative young age has 
not been created considerable differences between the medical statuses of the workers. 
But keeping in mind that according to the ageing tendencies and the economical 
challenges of the future the retirement age will be expanded, labour law has to prepare for 
the forthcoming challenges of employing older people especially in the light of OSH 
requirements and equal treatment. 
EU law states the common standards of OSH, according to which the employer shall 
adapt the work to the individual, especially as regards the design of work places, the 
choice of work equipment and the choice of working and production methods, with a 
view, in particular, to alleviating monotonous work and work at a predetermined work-
rate and to reducing their effect on health.
6
 This requirement means that during the work, 
the employer has to customise the working conditions for every worker in order to adapt 
the provisions of the OSH framework Directive. During this process the personal 
circumstances of the individual must be taken into consideration, namely age, medical 
status, etc. This examination can result direct or indirect discrimination,
7
 against which 
the employer has to exculpate themselves in a legal dispute. This results an ambiguous 
situation which can be handled very hard. Thus, we suggest, that the principle of equal 
treatment must be reconsidered. 
 
                                                          
5A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, 
but shall leave to the national authorities the choice of form and methods. 
6 Art. 6. 2 (d) of Directive 89/391/EEC 
7 Council Directive 2000/78/EC Article 2.,2 (a) (b) 
  
 
 
 
 
 
CURENTUL JURIDIC                                                                                                      121 
 
3. THE ROLE OF THE STATE 
 
In connection to this problem, we can observe a big debate on the role of the state, 
namely, should the tools of labour law be regulated with instruments of public law or 
private law. It is hardly imaginable that the OSH requirements could be based on the 
private agreement of the parties except the situation in which the employer itself creates a 
regulation inside its field of operation in order to achieve better status for the employees. 
Thus, the regulating role of the state cannot be passed over because a well-designed and 
properly enforced employment legislation can have a very significant effect on the 
sustainability of work (Eurofund, 2015). 
In addition the state must ensure not only the framework for the working conditions but 
the possibility for these people to work in their older ages. This can be derived from the 
obligation to protect the opportunity of every worker to earn his living in an occupation 
freely entered upon (Hepple, 1981). It is obvious that this obligation does not result a 
positive claim-right (Collins, 2015), but there is a valid expectation towards states to 
achieve this goal. From this point of view, the right to work must contain a higher level of 
protection for the older workers where the working conditions and the opportunities are 
customised for the worker’s current medical and health status. This approach results, that 
the employer must always monitor the employee’s mental and physical suitability for a 
given job especially in the older period, which may put a strain on both parties. During 
this process the classical frames of equal treatment must be broken through, for this group 
an extra attention must be paid, which must be well handled by the law, too.  
According to the above mentioned question, the regulating and controlling tools of the 
state should be extended to the field of OSH requirements to fit into this situation. In 
addition, special aspects adjusted to the target-group should be worked out in order to 
adjust to this special challenge. During this legislation it must be taken into consideration 
that in this relation equal treatment can prevail only in a different way, namely the elder 
workers must be preferred to make them be able to stay in the labour market. 
This latter goal will become important in the near future because in the ageing society the 
presence of the elder workers will be more and more common. Many people continue to 
work in the formal labour market in later life or will choose to do so if the opportunity 
exists.
8
 This will result the requirement of a special age-based risk-assessment in which 
this new aspect must be underlined because of the growing average age of the workers. 
We admit that this approach can be deduced from several legal sources of the Member 
States, but this clear distinction is not present in the whole labour market.  
In addition the WHO issued an idea of “new paradigm” according to which people 
should be allowed to enter or leave the labour market in order to assume care giving roles 
at different times over the life course. This approach supports intergenerational solidarity 
and provides increased security for children, parents and people in their old age.
9
 
In addition, the problem of the ageing workforce is an important research target of the 
European Agency for Safety and Health at Work as well. As a result it is stated that 
working ability is the first demand of work, but having an illness does not necessarily 
mean that an employee’s work is no longer needed. In this situation the employer has to 
                                                          
8Active ageing – A policy framework, WHO, Geneva, 2002, 43. p 
9Active ageing – A policy framework, WHO, Geneva, 2002, 44. p. 
  
 
 
 
 
 
122                                                                                          György NÁDAS, Péter SIPKA 
 
 
 
find the best solution suiting both of them to sustain the labour relation with the employer. 
This must result that the employer creates such working conditions for the employee in 
which it’s medical status and health issues are fully considered but on the other hand its 
workforce is exploited. 
In connection to this EU Strategic Framework on Health and Safety at Work 2014-
2020 states the following: “Changing technologies, new products and the marketing of 
new chemicals make it necessary to gather and evaluate sound scientific evidence, to 
identify how emerging new risks can best be addressed. The EU institutions, particularly 
the Commission, should mobilise the highest quality expertise available to work on this. In 
addition, risks affecting particular age groups, disabled workers and women deserve 
particular attention and require targeted action. The pilot project on OSH for older 
workers will identify ways to promote the physical and psychological health of older 
workers. It will also provide examples of good practice and facilitate the exchange of 
information.” 
Thus, the idea of equal treatment must be reconsidered in the light of ageing. 
 
4. RECONSIDERATION OF THE IDEA OF EQUAL TREATMENT 
 
To avoid the above mentioned situation we suggest that the basic principle of equal 
treatment should be re-examined. The legislator should make distinction between the 
“general” discrimination and the discrimination based on OSH or health challenges, and 
create a legal solution with which the employer can modify the contract unilaterally 
without breaching the mentioned principle. With this re-regulation, the employer gets the 
chance to customize the frames of the employment relationship of the elder workers in 
order to fulfil its obligation on OSH. Additionally, this approach also results demand for 
co-operation between the parties where the employee must inform the employer about all 
important information they must know to find the best upshot for both of them.  
Thus, the employer should get the chance to modify the employment contract unilaterally 
if they notice that the actual circumstances do not fit for a person. In this situation the 
need to sustain the employment relationship is much stronger than the dogma of the 
freedom of contract, so because the above mentioned reasons this situation should be an 
exception.  
Furthermore, the range of application should be extended in order to ensure the 
protection in all kinds of working forms. With this new approach the safety of workers 
could be guaranteed without creating stress in the labour market and labour law could 
fulfil its main purposes: run labour market and protect workers at the same time.  
 
5. CONCLUSION 
 
As a result it can be stated that because of the changes and challenges of labour law, 
the classical approach of employment relationships cannot be upheld in the future. The 
economical and social deviations resulted that labour law must give an urgent and clear 
answer for the further employment of the elderly workers where the classical legal values 
are still present.  
  
 
 
 
 
 
CURENTUL JURIDIC                                                                                                      123 
 
Our suggestion is to think over the basis of OSH equal treatment principles and 
modify them to fulfil their reason of existence. This also results that the new point of view 
could be used in wider range of working types, essentially all forms of working contracts. 
With this the merit and the future of labour law will not be questionable. 
 
REFERENCES 
 
Davidov, Langille (eds.): The Idea of Labour Law, Oxford University Press, Oxford, 2011 
Craig, Lynk: Globalisation and the Future of Labour Law, Cambridge University Press, 
2006, 274. 
Bercusson, Brian: European Labour Law, 2nd edition, Cambridge University Press, 
Cambridge, 2009, 80 
Zaccaria, Marton Leo: Equal Employment in Practice – Which Way Forward? Procedia 
Economics And Finance 23:(1), 2015., 593. 
Eurofound (2015), Sustainable work over the life course: Concept paper, Publications 
Office of the European Union, Luxembourg 10. p. 
Hepple, Bob: A Right to work? Industrial Law Journal, 1981, 10 (1), 69. p. 
Collins, Hugh: Is there a Human Right to Work, in: Mantouvalou, (ed): The Right to 
Work, Legal and Philosophical Perspectives, Hart Publishing, Oxford and Portland, 
2015,  25. p. 
 
 
 
 
 
 
 
 
 


The new challenges of osh regarding the modified role of labour law

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The new challenges of osh regarding the modified role of labour law

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