The conditions of public works are severely strictened

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The latest omnibus bill, passed by Parliament on 19 May 2020, amends thirty-seven laws (Bill T/10309). A significant part of the amendments will enter into force on 1 June this year, including Section 105, which amends the Public Employment Act (Act CVI of 2011).

We consider the amendment, which will enter into force on 1 July, to be a particularly cruel step in the current situation, when we cannot yet be sure how long the government considers it justified to maintain the emergency, how many people will not be able to find a job on the labor market “co-operate” with the employment service as a condition of benefits and, in this context, also participate in extremely poorly paid public employment programs. This is a serious strictening of the conditions for public employment.

After 1 July, when government public works programs to alleviate the crisis are expected to start,

jobseekers should be excluded from public employment for three months because of an disordered living environment, even if they meet other conditions.

(if, due to the untidy state of his immediate living environment, a public authority has identified a risk to health or public safety, or the notary has established a breach of the obligations laid down in a local government decree). The amended law also interprets the terms.

The immediate living environment is the property (building, garden, yard) serving as the place of housing, as well as the related public area on the street front.

A disordered condition shall be considered to exist if:

– waste is accumulated on the property or substances harmful to health are stored,
– there is an accident-prone structure on the property,
– the neglected condition of the property promotes the proliferation of plant and animal pests and pathogens,
– the access of animals from the property to the public area is unhindered,
– the property user does not fulfill the obligations provided for in the local government decree in relation to the property.

It is only a small legislative nonsense that the elements of the list cannot be said to exist simultaneously to determine the disordered condition (so-called conjunctive conditions) or that one by one, individually, is sufficient.

However, the extension of the exclusionary conditions of public employment to the rules of “clean yard, ordinary house” raises even more serious concerns than the former.

The job search allowance (unemployment benefit) helps people who lose their jobs to live for up to three months in Hungary, which is the shortest period in OECD countries (see OECD Employment Outlook (2018)). If you are unable to find a job in the open labour market, you can ask for help from the public employment service (employment center). In the absence of a market position (simplified), there are two possibilities for earning income: participation in the public employment program for a salary of around 50% of the minimum wage, or if this is not possible, applying for employment replacement support in the amount of HUF 22,800 (about EUR 65) per month.

In 2017, the Constitutional Court (AB) assessed public employment as a kind of intermediate legal relationship, stating that

“The institution of public employment can be judged differently from other employment relationships in the labour market and can be characterized as an intermediate area between social benefits and the open labour market”.

(Decision 30/2017 (XI. 14.) AB [54])

AB also stated that the legislator considers public employment to be an employment relationship, as it orders the application of the Labour Code to it as a general rule, and this is also indicated by the fact that the Hungarian Central Statistical Office also takes into account public employees in the employment indicator. The nature of the employment relationship is also supported by the fact that the duration of public employment qualifies as pensionable time and the fact that the employment replacement allowance cannot be paid at the same time. ([56], [57]) However,

“In terms of content, the public employment relationship is a specific, atypical employment relationship that is related to the social system in terms of its function, i.e. the examined form of employment is located at the intersection of social policy and employment policy. In the sense of constitutional law, this can be interpreted in relation to two state objectives, which are set out in Article XII (2) […] and Article XIX (2) […] of the Fundamental Law.

(Paragraph [60])

The ex-post norm control motion submitted by the Commissioner for Fundamental Rights was directed against several sections of the Public Employment Act, which defined the conditions for participation in public employment. One of the contested provisions, then paragraph 4a (b), provided for the exclusion of those who did not fulfill their obligation under the municipal decree to ensure the orderliness of the living environment (garden, yard, statutory public area related to the property). According to the Commissioner, this discriminated against other employees.

The Constitutional Court found covert discrimination on the basis of wealth, and also ruled that it also violated the right to privacy and did not adequately justify the restriction to perform a public task if it was unrelated to the content of the work to be performed.

Therefore, AB annulled the provision in question, together with the related procedural rules. (a public task is a task that is classified as a public task by law (Act CXCV of 2011 (Áht.) Section 3/A))

One element of the amendment that has just been adopted, which defines a breach of obligations under a municipal decree as a ground for exclusion, is almost literally identical to the previous provision that has been repealed. The relevant rules of the Fundamental Law in this regard have not changed since the 2017 AB decision, so today it is just as unconstitutional as it was three years ago. As far as the regulations of the local government decrees on the subject are concerned, they can be strongly questioned without the new sanction concerning public employment. (See in this connection, for example, the general findings of the Streetlawyer Association’s publication entitled Punitive Local Governments [Büntető Önkormányzatok], which also examines community coexistence regulations.)

Another element of the amendment, which allows for exclusion from public employment in the case of infringements already identified by the competent authorities, raises additional concerns. No one disputes that it is harmful and reprehensible to store waste in the yard of a property in a way that endangers others, or not to ensure that animals cannot get out of the yard, and it is also perfectly acceptable for the state to try to protect our physical integrity by not allowing its citizens to live in accident-prone properties. The prevention and deterrence of these dangerous behaviors are served by the existing provisions on infringements and administrative law (waste management, environmental protection, animal welfare, building authority matters), which also specify the sanctions deemed necessary. If someone violates such a rule, they can expect punishment and further action by a competent body in the state.

What is the reason for depriving the person concerned of the possibility of obtaining a livelihood as an additional punishment in addition to the sanctions provided for by law?

The grounds of presenter of the bill states:

“Any person who is not entitled to cash job-search benefits may be included in the public employment service, regardless of wealth and social status, as well as gender and age. Thus, the provision to be introduced is not limited to a specific social group. […] In the context of the right to privacy, the right to a neglected, disorderly living environment cannot be interpreted, especially if such a condition undermines the right of others to a clean, healthy environment. ”

(Grounds for the original bill, p. 103)

The justification, which responds in advance to possible constitutional concerns, is contradicted by the above-mentioned AB decision, in which the judicial panel have also stated the following.

‘Thus, persons in public employment are typically persons in a difficult financial situation, belonging to the most vulnerable sections of society, all of which are well illustrated by the fact that the amount they can earn in public employment is lower than the minimum wage. […] This is also supported by the 2013 report of the State Audit Office on the audit of the efficiency and effectiveness of the support system for public employment and related training programs. According to the document, “[t]he public employment support scheme has effectively contributed to the objectives of preventing the exclusion of unskilled workers from the labor market and improving the employment of the low-skilled. During the period, 43-62% of those involved in public employment had a low level of education, which exceeded the proportion of those with a low level of education within the registered jobseekers each year. ”

The Constitutional Court had to examine whether there were any reasonable grounds to justify the above discrimination within the group of jobseekers. According to the reasoning of the legislator, “starting from the fact that public employees participate in value-creating works that are organically related to the public tasks of local governments and other state bodies, it imposes on public employment participants the observance of generally expected moral and behavioral rules”. In the present case, however, it can be stated that it is not only public employees who perform work related to the public tasks of public bodies. Consequently, there is no reasonable reason for the legislator to impose special life standards on this group of jobseekers alone. In the case under review, the Constitutional Court concluded that there was a case of covert discrimination on the basis of “property status” due to the fact that only in the case of people living in a disadvantaged, vulnerable financial situation the statutory provision requiring the fulfillment of non-work-related (residential) conditions applies. For this reason, the Constitutional Court found that there is an unconstitutional situation, a breach of Article (2) of Section XV of the Fundamental Law due to the fact that the legislator also ordered the application of the exclusion rules as a precondition for entering the public employment relationship. (Paragraphs [67] to [68])

This is not the first time that the Hungarian state power has resorted to punitive, criminalizing means instead of social assistance.

In the fall of 2018, it was made part of the misdemeanour law and thus residing on public premises for habitation became nationally prohibited, i.e., homelessness was criminalised. In addition, a number of municipal regulations explicitly regulate local residents, primarily poor local residents, rather than helping them.

The position of the Streetlawyer Association remains that poverty should be addressed only through social policy means and not through criminalisation, so we ask the Commissioner for Fundamental Rights to ask the Constitutional Court again for norm control.

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