Fenomenologija delovnopravnega varstva

Avtor obravnava in razpravlja o fenomenologiji delovnopravnega varstva v sodobnem delovnem pravu, pri čemer posebno pozornost namenja položaju tistih posameznikov, ki dela ne opravljajo v okviru delovnega razmerja. Uvodni prikaz pravnih vprašanj namenja lažjemu razumevanju predstavitve najnovejše sodne prakse Vrhovnega sodišča RS s tega področja. Sledu ugotovitev, da se sodna praksa poslužuje v tem prispevku predstavljenih vzvodov za preseganje marginalnih situacij v sferi dela, vzvodov, favoriziranih tudi v mednarodnopravnem okolju. Predstavljena je osrednja pravna podlaga za sprejem odločitve Vrhovnega sodišča, slovenska zakonodaja pa ocenjena kot bistveni dejavnik razvoja sodobne delovnopravne misli. Ob koncu je nakazana ustavnopravna dimenzija fenomena delovnopravnega varstva.In time of traditional labour law the identification of worker was not an issue. Basic productive relations did not cause any problems concerning personal scope of labour protection. Therefore the main focus of labour law and its legislation was to ensure rights steaming from employment relationship. With progress within civil societies as such, technologies, business relations and when globalisation occurred the world of labour law has changed. Means used by capitalists, factory owners or investors used to overcome challenges of the modern economics were never at stake, although these processes have been diminishing the level of acquired labour law protection. All that caused reorientation of labour law from material scope of labour law protection to its personal scope. The main issue today is to identify persons in situation needing protection and find a way to ensure them at least some layers of labour protection. Through activities taken up by International Labour Organisation there have been developed several techniques for overcoming the present and difficult situation. At the beginning they tried to define the term contract labour and they failed. Then they wanted to find consensus among the member states on common and broader definition of employment relationship as the legal basis for labour protection and they almost failed. They were aware of the fact that each national labour law consists of unique concepts and traditional solutions which make an effort to achieve some sort of labour law unification even heavier. What they succeed to achieve is to accept employment relationship as global concept which has to be nourished and further developed. The ILO identified and defined two legal issues concerning the existence of employment relationship: disguised and objective ambiguous employment relationships. The first which are relevant for this article are relationships which are lent an appearance that is different from the underlying reality, with the intention of nullifying or attenuating the protection afforded by the law. The basic aim of the present article is to emphasise the meaning of the latest Slovene supreme court jurisprudence which has accepted modern concepts identifying persons that need labour protection. The case was brought before court by a lady student who has worked as the stewardess for almost ten years. She worked as a student and not as worker. Employer did not treat her as a worker despite was working as such. She was not acknowledged with basic employment relationship rights. Supreme Court annulled first instance and higher court rulings which have refused students’ claim for recognition of employment relationship and all rights out of it. Those courts ruled that the statuses of student and worker at same time are not compatible and pointed out the need of respect the will of contracting parties. They agreed to perform work on the basis different from employment relationship. The first two courts insisted on such argumentation despite labour law prohibition of civil law contractual agreements in case of existence of elements of employment relationship. Constitutional context of Supreme Court jurisprudence and labour law solutions concerning labour protection is very difficult to draw. The basic phenomena are the concept of Social State, right to social security and free economic initiative