DUTY TO WORK
DUTY TO WORK
The main aspects of the employee's duty to work relate to when, where, how and by whom the work is to be performed, and what it is to consist of. The question of when work is to be performed is governed by the rules on working hours, but for the other aspects there are, by and large, no legal rules other than case-law: they are contractual matters.
As regards who is to perform the work, it is a characteristic feature of the employment relationship that an employee undertakes to perform the work in person.
As regards what work the employee is under an obligation to perform, i.e. what tasks can be assigned to him or her, in the private sector freedom of contract prevails but employment contracts do not usually specify this explicitly. Nor is the statement of terms and conditions of employment which the employer is required to furnish deemed to have effect in terms of contract law. The prevailing legal position originated from long-standing practice and was subsequently upheld by the Labour Court (see 29:29 principles). Likewise in the public sector, no general rules are laid down by law and freedom of contract nowadays prevails. The starting-point has therefore become that the general principles of labour law are applicable unless special rules, job descriptions and the like dictate otherwise.
As regards where work is to be performed, any obligation to accept a transfer depends in principle on the individual contract of employment. In general it is probably true to say that employees are not obliged to move to a different geographical location unless the terms of their employment so require, but there is possibly an obligation to accept a transfer to a different equivalent job in the same location. Although many jobs involve travelling and working at different places, the majority do not imply geographical mobility. The alternative to a move may, however, be termination of employment. In this situation the relevant question is the degree to which an employee can reasonably expect to be provided with a job in a different location (see transfer: transfer and dismissal). In the state sector there was at one time an obligation to accept a move, but nowadays this is confined to sovereign appointment. In the local-government sector the AB 98 agreement (see transfer: transfer and dismissal) imposes an obligation on employees to accept moves within the same local authority area if there are “valid reasons”.
The question of how work is to be performed mainly relates to work procedures and production methods. These and similar matters fall under the employer's right to direct work.
Although the employer's managerial prerogatives are open to negotiation and many basic agreements (the Development Agreement, for example) contain rules on the matter, these are couched in very general terms. Broadly speaking, therefore, it is still the case that the employer has an extensive right to make decisions unilaterally, even though the rules on negotiation on managerial decisions are applicable and give the employee side some say in the matter.
Please note: the European industrial relations glossaries were compiled between 1991 and 2003 and are not updated. For current material see the European industrial relations dictionary.