The Annual leave, as a legal institute of Employment law, is a right that affects EVERYONE, regardless of the industry, regardless of education, and regardless of job position.
The right to Paid Annual leave is a FUNDAMENTAL LABOR RIGHT, which the ILO elaborates significantly in its foundations and regulates in particular in the Holidays with Pay Convention (Revised) 1970 (No.132). Moreover, the EU also elevates this right to the position of FUNDAMENTAL with the Charter of Fundamental Rights of the European Union, as a right that should ensure Fair and just working conditions.
Every Employee enjoys this right arising from the employment relationship and every Employer is obliged to provide the same to every Employee. But if we look at it from the position of a lawyer, an interesting dilemma opens up: which right is a „greater„ right… the right of the Employee to use annual leave whenever he wants or the right of the Employee to approve the annual leave when the work process allows it?
The aforementioned ILO Convention determines an optimal period for paid annual leave – three weeks’ paid leave each year but also defines the right to a proportional part of the annual leave, where it determines that those Employees who have been employed with an employer for less than one year, but longer than six months, are to have a right to a proportional period of paid leave.
This determination and definition of annual leave is also present in the Macedonian employment law, or more precisely in the Macedonian Law on Labor Relations.
Namely, the Legislator in our Employment law determines the minimum number of days of annual leave to be 20 working days, while the maximum – is 26 working days, which in principle is equal to the determination of the ILO regarding the duration of the minimum with Paid Annual leave. In addition, the Convention specifies that it should be possible for an employee to take two weeks of annual leave in one block without interruption, which is also an obligation for Macedonian Employers.
Although there is a legal institute – proportional part of annual leave, it is general and it penetrates through working laws, however, details about its application remain in the “gray zone”. Hence, both Employees and Employers often seek legal advice on when and how to apply the days indicated as a proportional part of the vacation. For now, the strict application of this part of the employment law remains, that this legal institute is used only in the period before the right to a full annual vacation is acquired. That period is defined in Macedonian legislation as a six-month period from the establishment of the employment relationship with that Employer.
Also, The Convention also provides that the timing of the leave period should in principle be determined by the Employer, in consultation with the Employee or his or her representatives, which as a legal solution is also accepted in our labor law in article 138 of the Law on labor relations. So, the Employer BUT taking into account the needs of the work process above all, as well as the opportunities for rest and recreation of the Employee is obliged to provide this right as an absolute, mandatory, and unconditional right of the Employee.
Given that our country is aiming for the EU, we would like to point out that the EU has set minimum standards for working hours and rest, breaks, annual leave, and night work. In addition, those standards provide that derogations from some of the working time obligations are possible if allowed by national law. Such standards that refer to specific aspects of working time, among other things, and generally for Annual Leave, are covered by a separate Directive 2003/88/EC of the European Parliament and of the Council of November 4, 2003.
In this Directive, it is stated that each Member State shall take the necessary measures to ensure that every Employee is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and /or the practice. Hence, we can conclude that this standard, considering that it reflects the lower limit or the minimum of the duration of the vacation time is above the minimum provided by our Labor Law. So considering the above stated, it is obvious that the Employees in the EU in terms of this right that is within the working law puts the Employee in a better situation. The standard set by the EU in relation to annual leave is that the minimum period of paid annual leave cannot be replaced by an allowance instead, except where the employment relationship is terminated.
So, we can conclude that the conditions for the entitlement and granting of annual leave are subject to national regulation, but those could not be under the minimum legal standards which are accepted as fundamental.
We, as a law firm, are in line with the legal position that the entitlement of every Employee to paid annual leave must be regarded as a particularly important principle of Community social law from which there can be no derogations.
Moreover, the CJEU ruled that so-called ‘rolled-up holiday pay’ – the practice of incorporating the payment of annual leave into a worker’s hourly or daily wage without the worker receiving additional payment – is contrary to the mentioned Directive, as the practice does not guarantee that the minimum four-week leave will actually be taken, so this position of the CJEU, for us, is absolutely acceptable and we, as a law firm, support it in total.
But, definitely, this right should be in accordance with the needs of the work process above all, as well as the opportunities for rest and recreation of the Employee.
Ana Tosic Chubrinovski – Managing Partner
