Protection of conscience and religious freedom in the labour relationships

• Author: Ada Hurbean - Laura Cetean-Voiculescu
• Position: Ph.D. Lecturer of Law and Social Sciences Faculty, '1 Decembrie 1918' University of Alba Iulia - Ph.D. Lecturer of Law and Social Sciences Faculty, '1 Decembrie 1918' University of Alba Iulia
• Pages: 214-217

PROTECTION OF CONSCIENCE AND RELIGIOUS FREEDOM IN THE LABOUR

RELATIONSHIPS

Ada Hurbean*

Laura Cetean-Voiculescu**

Abstract

Theme analyzed addresses discrimination in la bor relations, with special regard to freedom of religio n

and conscience a nd how this fundamental freedom is regula ted and protected in individual labor law. In th is

context, it seems appr opriate to analyze the conscience cla use - one of the optio nal clauses which can be

negotiated a nd inserted in the individual labor contract, but also the consequences of violation of the employee’s

religious a nd conscience freedom.

Key words: labor relations, antidiscr imination pr inciple, conscience clause, religious freedom.

Introduction

It is undeniable that the legal a nd the religious, mora l norms a re indissolubly legal. Reported to the

history of right, it can be observed that, for a long per iod of time, there was no difference between the two

norms: the legal nor m a ppeared a s a r eligious rule, mainly to assure its manda tory chara cter, in la ck of some

state instruments of constra int.

The first distinction between the two con cepts we find it in the Roman la w, because the legal norms

were designed by the ter m of Jus, a nd the religious ones by Fa s. Even in these conditions, in the old times of the

Roman law, the lega l norms were covered by a religious meaning, both a s a linguistic expression a nd as for its

content. The religious a nd the legal norms were consider ed to be the result of the same divine will, and therefore

their content expressed, using mora l-religious concepts, only that voluntas Dei, imposed as lex vitae.

In the Roman law, too, we find the forerunner of the individual employment contra ct and that of the

labour relationships – Locatio oper arum, namely the contract used for hiring the services of a free man. Being a

consensual contract, the renting contract from the Roman law represented the most evaluated form tha t the

technique of creating the obligations

1 has known, in bala nce with the solemn contra cts, dominated by a rigoro us

formalism shaped by the spelling of some magic-r eligious formulas.

Otherwise, this rega rd on the la bour relationships was initia lly consecr ated by the very old Civil Code,

the individua l employment contra ct being regulated together with the corpora te and transport contracts, as a

form of renting the works (art. 1413 Civil Code, known under the nomination of renting work contra ct)2. Only in

1929, it was distinctively stipulated by the law of labour contra cts.

Nowadays, the labour relationships that appear, in principle, based on a labour contract, benefit of

stipulations according to which the employee’s fundamental freedoms and rights are defended by corroboration

with the disposals of t he Basic Law, on one hand, and with the international and European regulations in matter,

on the other hand. Thus, the Romanian Constitution, in art. 29, consecrates the principle of free conscience,

according to which “the freedom of conscience and of opinion, as well as the freedom of religious beliefs shall

not be restricted in any form whatsoever. Nobody can be compelled to adopt an opinion or to join a religious

cult, against his beliefs”, and “the liberty of conscience is guaranteed; it shall appear under the spirit of tolerance

and mutual respect”. Under these circumstances, the Labour Code stipulates the equality of treatment and the

forbidden of discrimination, inclusively that based on religious criteria, using the terminology and the notions

consecrated by the international a nd European norms. In concrete, art. 5 of the Labour Code expressly forbids

both the direct discriminations and the indirect ones toward s an emplo yee, based o n “criteria o f sex, sexual

orientation, genetic characteristics, age, nationalit y, race, colour, ethnic, religion, political option, social origin,

handicap, family situation or responsibility, union membership or activity”. The general character provisions o f

the Labour Code must be corroborated with the disposals of the Emergency Ordinance no. 137/2000

(republished) concerning the prevention a nd sanction of all forms of discrimination. This Ordinance defines in

art. 2 the notion of discrimination as being: any act of differentiation, exclusion, restriction or preference b ased

on one or more criteria o f discrimination, i ncluding the religious one that has as purpose or effect the restrictio n

or removing the recognition, use or exertion, under conditions of equality, of fun damental human rights and

freedoms, or of rights recognised by law, in any field. Also, provisions, criteria or practices, ap parently neutral,

* Ph.D. Lecturer of Law and Social Sciences Faculty, “1 Decembrie 1918” University of Alba Iulia, mail address adahro@yahoo.com

** Ph.D. Lecturer of Law and Social Sciences Faculty, “1 Decembrie 1918” University of Alba Iulia, mail address

lauravoiculescu@yahoo.com.

1 E. Molcu, D. Oancea, Drept roman, Universul Publishing House, Bucharest, 1993, p. 274.

2 Matei B. Cantacuzino, Elementele dreptului civil, edited by Gabriela Bucur, Marian Florescu, All Educaional Publishing House, Bucharest,

1998, p. 646.