Summary

The Employment Contracts Act in force was drafted during the pre-constitutional period and was adopted by the Supreme Council in April 1992. The Act imposes extensive restrictions on the freedom of contract of the parties to an employment contract. The main reason for this is the fact that the Act was drafted on the basis of the former employment law designed for the conditions of planned economy. The Employment Contracts Act has not undergone any significant amendment to date. At present the Riigikogu is reading a new draft law.

In establishing new provisions regarding employment law, regard should be given to the requirements and guidelines provided by the Estonian Constitution. It is important to understand the provisions of the Constitution in the context of employment relationships and the freedom of contract in such relationships, as any legislation enacted by the legislator must, under §§ 3 and 11 of the Constitution, be constitutional and take into account the requirements arising from it. The Constitution also provides the bases and principles for establishing rules of law.

The author first looks at the constitutional aspects of the freedom of employment relationships and the freedom of enterprise and the constitutional requirements for shaping employment regulation. The second part of the article is devoted to an analysis of the constitutionality of the Employment Contracts Act in force and of the draft Act on the basis of examples of the provisions governing fixed-term employment contracts and the change of employment relationships. Finally, the author draws conclusions on whether the provisions need to be amended to ensure their compliance with the Constitution.