Top court stays pay ceiling rise for doctors

Ljubljana – The Constitutional Court has stayed, pending its final decision, the implementation of a provision in the latest Covid relief law that raises the pay ceiling in the single public sector wage system only for the benefit of doctors and dentists.

The increase by six wage brackets until the end of 2022, included in the Covid-19 package passed at the end of last year, angered other groups of public sector trade employees, whose unions are now demanding higher wages as well.

The rise for only one group of public sector employees is being challenged at the court by the bosses of five trade union associations representing the public sector.

They challenged the law over mistakes in the legislative procedure. They argue that by the rise being included in the Covid-19 emergency bill, which under the parliament’s decision cannot be subject to a referendum, the right to a referendum is being violated.

They say the government should have followed the prescribed procedure in changing the wage brackets, including legally prescribed talks to agree the changes with trade unions representing the public sector.

The court stayed the provision with the argument that enforcement of what is a potentially unconstitutional provision could result in graver consequences. The court will deliberate the case as a priority.

“If the applicants’ assertions proved grounded, the implementation of the challenged legal provision would lead to encroachment on the very foundations of the wage system without social dialogue, which cannot be established retroactively,” reads the court’s explanation.

The challenged provision would allow new pay decisions and annexes to employment contracts to be issued and if the provision was later annulled it would not be possible to demand repayment of excess salaries, which would cause irreparable damage to public funds.

“In addition, in that case voters’ right to a referendum would be denied. If the National Assembly were later to adopt a bill with the same content and a referendum were to be called on it, voters would be voting on something that could have already been implemented, at least in part,” said the court.

Meanwhile, staying the contentious provision means only the top 57th pay bracket remains in force for doctors and dentists like for all other public employees, said the court. Higher pay brackets are reserved for office holders.

The court notes that the legislator continues to have the option to help doctors and dentists encumbered with treatment of Covid-19 patients with bonuses like so far and thus prevent at least temporarily doctors potentially leaving the public health service.

The decision to stay the provision was carried by seven votes to two. Judges Klemen Jaklič and Marko Šorli passed dissenting opinions.

Jaklič finds the court has overstepped its powers in staying a provision that the executive and legislative branches adopted to ensure a proper level where people’s right to protection of their life and health is maintained in a health crisis.

“The judiciary’s interference in social and health policies of any elected political majority that acts lawfully […] is alien to any democratic constitutional framework. Judges do not compete on the political floor with their visions of social and health policies,” writes Jaklič.

Šorli argues the court should have weighed between protecting people’s lives and health that the provision would contribute to on the one hand and the potential consequences that would emerge on the other.

He believes the applicants have failed to convincingly substantiate harmful consequences, and even if they did emerge they would be repairable. “The scales are tipped strongly in favour of people’s lives and health,” concludes the judge.

Fides, the trade union of doctors and dentists, said it was not surprised by the decision but reiterated this would not undermine their underlying goal of extracting doctors from the single public sector pay system, it only affirmed their conviction that this is necessary.

It also lashed out at the unions that initiated the constitutional review, accusing them of being “abhorrent and double-faced” and having undermined the broader efforts to raise wages in the public sector.

PM Janez Janša commented on the decision on Twitter, accusing the Constitutional Court of politicising again. “PKP 10 has made it possible at least temporarily to promote the most competent speciality doctors beyond the 57th wage bracket […]. This also allows a move upwards for young doctors, who are also underpaid,” reads the tweet.

Health Minister Janez Poklukar meanwhile said court decisions needed to be respected “even when they are not to our liking.”

While confident a solution will be found for doctors as well as nursing staff in pay negotiations, Poklukar said the single pay system was no longer what it once was.

“We probably have to examine at the general level what it is that we want in the public sector. It is, however, questionable whether there is anything we can do before the election.”

ZSSS, one of the trade unions involved in the constitutional challenge, welcomed the court’s decision, saying they understood it as “renewed criticism of the authorities currently in power who keep violating and ignoring valid rules”.