| Abstract [eng] |
Peculiarities of Legal Regulation and Court Practice of Illegal Employment Since illegal employment is assessed as one of the gravest forms of labor law infringement, due to qualifying and determination of proportional sanctions it is necessary to reveal peculiarities of legal regulation and court practice of illegal employment by analyzing national legislation, international law and case law. Illegal employment shall be assessed as one of the gravest forms of labor law infringement, defying key imperative norms of labor law. If one seeks to qualify such acts as infringing Article 95 of Administrative Offence Code and such work as “illegal”, one must qualify objective characteristics of the administrative offence. Subjective characteristics and subject of illegal employment itself play a role in qualifying and regulating such activities as well. It is important to note that each state regulates and qualifies illegal employment differently. ILO as well as EU institutions, differentiates between illegal employment and undeclared work. ILO and EU describe illegal employment as labor, which opposes laws, regulation and established practice in general, whereas undeclared work is interpreted as generally legal activity, while avoiding state tax obligations. The legislator of Lithuania does not differentiate between these two. This particular legal gap should be amended by the Employment law, which should come into force as of 1 July, 2017, however new regulation will not marginally effect the existing laws – illegal employment will continue to be interpreted as legal activity, while avoiding state tax obligations. However, initiatives as such are welcome. However imprecise such differentiation might be a groundwork for more precise regulation in the future. One of the most striking peculiarities of regulation of the illegal employment – regulation of illegal employment of foreigners, stateless persons and third country citizens. Although it is an established practice in Lithuania to lay down employment in the form of employment agreement, laws allow parties to form civil agreements as well. Self-employment, contract of independent work, copyright agreements have similarities with employment agreements. In order to avoid improper qualification of illegal employment under article 95 of Administrative Offence Code it is important to weight on relation between civil and employment agreements, since illegal employment is defined through partitioning of these two agreements. Illegal employment, through the object of infringement is classified as administrative offence in the field of labor. Although in Lithuania, following the established EU practice, exists a criminal liability for the illegally present third country citizen’s work. Since the legislator has established only one definition – illegal employment - it is difficult to differentiate between administrative and criminal liability. Employer, as a stronger party, takes upon a major part of liability for the illegal employment, at the same time, employee`s liability for the illegal employment is not present in Labor Code or Administrative Offence Code, neither it is going to be present in Employment law. |
