CIVIL SERVICE CAREER and HR MANAGEMENT ISBN 978-615-5269-36-3 Ministry of Public Administration and Justice

Márta Bokodi – Zoltán Hazafi – Attila Kun – Zoltán Petrovics – Gábor Szakács

CIVIL SERVICE CAREER AND HR MANAGEMENT ISBN 978-615-5269-36-3 Ministry of public administration and justice

ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research

Márta Bokodi – Zoltán Hazafi – Attila Kun – Zoltán Petrovics – Gábor Szakács

CIVIL SERVICE CAREER AND HR MANAGEMENT Transcript closed on 28 February 2014

The content of this collection of essays reflects the opinion of the authors, and shall not be considered the official opinion of the Ministry of Public Administration and Justice.

Editor:

Dr. Zoltán Hazafi

Copy Editors:

DR. FERENC NEMES – MTA Doctor DR. TAMÁS PRUGBERGER – MTA Doctor

TABLE OF CONTENTS

FOREWORD ...... 7

ACKNOWLEDGEMENTS ...... 9

ZOLTÁN HAZAFI:THE NEW CIVIL SERVICE CAREER – LEGAL AND HUMAN RESOURCE DIMENSIONS OF CIVIL SERVICE DEVELOPMENTS ...... 11

1. THE SCOPE AND RATIONALE OF THE RESEARCH ...... 11

2. RESEARCH TOPICS AND THEIR WIDER CORRELATIONS ...... 16 2.1. Legislation ...... 18 2.1.1. Differentiation-unifi cation ...... 21 2.1.2. Differentiation-unifi cation in public administration: the independent regulation of autonomous bodies and the question of mixed statuses ...... 23 2.1.3. Differentiation-unifi cation in law enforcement: job description classifi cation ...... 25 2.1.4. International development directions: appointment or contracts ...... 26 2.1.5. Development of an independent branch of law? ...... 31 2.2. HR management ...... 31 2.2.1. The place and role of HR management in performance management ...... 32 2.2.2. A combined analysis of legislation and HR processes based on the system model ...... 34

3. WORKING HYPOTHESES ...... 34

4. FACTORS INFLUENCING CIVIL SERVICE DEVELOPMENTS ...... 35

5. THE INFLUENCE OF THE ORGANISATION AND THE TASK SYSTEM ...... 36 5.1. Autonomous bodies: specialisation between organisation types and within the civil service legal status ...... 37 5.2. Integrating different legal statuses: at the dawn of an independent mixed legal status ...... 44 5.3. Mixed proﬁ le public administration bodies: organisational conglomerates ...... 48 5.4. Merging governmental bodies with different statuses: legal status changes ...... 51 5.5. Issues related to regular employment ...... 52 5.6. HR implications of mixed statuses ...... 53

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5.7. Concentration of personnel ...... 54 5.8. HR management as an efﬁ ciency reserve ...... 61 5.9. Summary ...... 62

6. MOBILITY ...... 63 6.1. Act XLIII of 1996 on the Service Status of the Professional Members of the Armed Services (Hszt.): halfway ...... 64 6.2. Act CCV on the legal status of defence forces (Hjt.): mixed legal status in military order ...... 65 6.3. Uniﬁ ed development of HR processes as the basis of mobility and uniﬁ cation ...... 68 6.3.1. Civil service system model ...... 68 6.3.2. Analysis of HR processes ...... 70 6.3.3. Mobility ...... 71 6.4. Summary ...... 73

7. LABOUR MARKET EFFECTS ...... 74 7.1. Supply-based labour market ...... 74 7.2. Exposure to the labour market ...... 80 7.3. Summary ...... 81

8. INDEPENDENT LEGAL BRANCHES ...... 83

9. FINAL POINTS AND RECOMMENDATIONS ...... 84 9.1. Legislation ...... 84 9.1.1. Civil service codex ...... 84 9.1.2. Appointment and division of civil service contracts according to principles ...... 85 9.2. HR management ...... 86 9.2.1. Developments affecting personnel ...... 86 9.2.2. System management ...... 88

ATTILA KUN - ZOLTÁN PETROVICS: THE DEVELOLPMENT OF CIVIL SERVICE LAW INTO AN INDEPENDENT BRANCH OF LAW ...... 91

1. INTRODUCTION, RESEARCH OBJECTIVE ...... 91

2. DIVERGENCE AND CONVERGENCE OF LABOUR LAW AND CIVIL SERVICE LAW IN THE LIGHT OF LEGAL DOGMATICS – THEORETICAL ISSUES REGARDING THE INDEPENDENCE OF A BRANCH OF LAW ...... 92 2.1. The concept of civil service law ...... 92 2.2. The independence of a branch of law in general ...... 94 2.3. Private law and public law? – Labour lawand civil service law? ...... 98

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2.4. Labour law adn civil service law in the light of two classic criteria for division into branches of law: distinct objects and methods of regulation ...... 102 2.4.1. The object of regulation ...... 102 2.4.2. The method of regulation1 ...... 104 2.5. Further dogmatic considerations against treating civil service labour law as an independent branch of law ...... 108 2.6.International trends ...... 110

3. DIVERGENCE AND CONVERGENCE OF LABOUR LAW AND CIVIL SERVICE LAW IN THE LIGHT OF CERTAIN LEGAL INSTITUTIONS ...... 116 3.1. Civil law and civil service law ...... 116 3.2. Collective labour law ...... 118 3.3. Changes in legal relationships ...... 122 3.3.1. Transfer to the public sector ...... 122 3.3.2. Transfer to private labour law ...... 125 3.4. Legal disputes ...... 126 3.5. Employment relationships with publicly owned employers ...... 128 3.6. Other overlaps and borderline areas ...... 130 3.7. Public procurement and labour law ...... 131

4. CONCLUSION ...... 133

MÁRTA BOKODI - GÁBOR SZAKÁCS: CHARACTERISTICS OF CIVIL SERVICE ORGANISATIONS AND HR MANAGEMENT ...... 135

1. INTERACTION BETWEEN THE FUNCTIONING OF THE ORGANISATION ADN HR MANAGEMENT ...... 135

2. ON THE RESEARCH ...... 139 2.1. The objective of the research...... 139 2.2. The method of the research ...... 140 2.3. Research hypotheses ...... 144

3. CHARACTERISTICS OF RELATIONSHIPS, ORGANISATIONAL CULTURE AND MANAGEMENT STYLE WITHIN CIVIL SERVICE ORGANISATIONS ...... 144

4. EXAMINATION OF SOME FACTORS RELATED TO THE OPERATION OF CIVIL SERVICE ORGANISATIONS ...... 155

5. THE EVALUATION OF THE MANAGEMENT AND ORGANISATIONSAL STRUCTURE OF CIVIL SERVICE ORGANISATIONS ...... 165

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6. CONCLUSION AND RECOMMENDATIONS ...... 173

APPENDICES ...... 177

BIBLIOGRAPHY ...... 184 Literature used: ...... 184 Web based references ...... 185

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FOREWORD

Dear Reader,

It is my pleasure to recommend this volume of essays as the State Secretary of the Minis- try of Public Administration and Justice, as it is one of the latest achievements of Hungar- ian public administration and of research into HR related questions.

Even at the beginning of the research I thought – and now, after reviewing the essays of 19 researchers amounting to more than 2000 pages I am even more convinced – that great restructuring work requires scientific contributions, an examination and analysis of decisions using scientific methods.

I am very delighted that this volume is the outgrowth of co-operation between theory and practice. In addition to academic scholars, there were also experts from the National Public Health and Medical Officer Service, the Hungarian Competition Authority, the National Institute for Quality and Organizational Development in Healthcare and Medi- cines, the National Tax and Customs Administration and the National Office for Rehabili- tation and Social Affairs that were involved in the analyses. We had the privilege of having the research results reviewed and confirmed by internationally acclaimed professors as copy editors. I would like to express my gratitude to the leaders of the participating bodies for their support, the work of the researchers and the contributions and recommendations of the copy editors.

I believe that the reform of Hungarian public administration personnel cannot be measured merely by the length of the studies that were prepared nor exclusively from an institutional, regulatory and operational viewpoint. Therefore our objective in the past was to restore the honour of the public sector’s performance and this required the restructuring of the entire public administration culture. In this process I would like to draw attention to a less formal, and maybe less tangible factor, to the importance of the thinking, attitude and commitment of civil servants. As Károly Mártonffy said, it is not only the material tools of fair and effective policy that are required for the successful execution of reforms, but the subjective aspects also.

Morality is the readiness of the soul to do good. This applies to public administration in the sense that only moral civil servants can do good deeds, serve the public good, and ultimately give meaning to the concept of a good state. In my opinion, the willingness to do good and sensitivity to the problems of other people can make office administration more humane, improve bad bureaucracy and turn officials into good bureaucrats. This morality

7 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research can provide a soul to the achievements of scientific thought and to the state mechanism reformed by governmental decisions.

We are launching this volume with this conviction and we recommend it to all experts.

Dr. Marcell Biró Ministry of Public Administration and Justice State Secretary

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Acknowledgements

We would like to thank the authors of the sub-studies written as part of the scientific research entitled “HR management and civil service career”, completed within the framework of the ÁROP-2.2.17 “New civil service career” project. They are Kamilla Bérces, László Bognár, István György, Attila Horváth, Ferenc Gábor Krauss, Viktória Linder, Csilla Petró, Georgina Stréhli-Klotz, Gyöngyvér Szekendi and Szilvia Szabó.

We would also like to thank the leaders and contact persons at the National Public Health and Medical Officer Service, the Hungarian Competition Authority, the National Insti- tute for Quality and Organizational Development in Healthcare and Medicines, the Na- tional Tax and Customs Administration, the National Office for Rehabilitation and Social Affairs, the Ministry of the Interior, the National Police Headquarters and the Hungarian Prison Service Headquarters for their support. We would also like to thank the copy editors Ferenc Nemes and Tamás Prugberger for their work.

Finally, we would like to thank our other colleagues for their help in this research, especially the experts of the Deputy State Secretariat of the Ministry of Public Administration and Justice responsible for Personnel Affairs.

The Authors

ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research

ZOLTÁN HAZAFI: THE NEW CIVIL SERVICE CAREER – LEGAL AND HUMAN RESOURCE DIMENSIONS OF CIVIL SERVICE DEVELOPMENTS

1. The scope and rationale of the research

The Zoltán Magyary Public Administration Development Programme (hereinafter: Magyary Programme) launched fundamental changes in Hungarian public administration, in the organisational and task system, and in the field of procedures and personnel. The complex approach expresses the strong correlation between the different fields, and it foreshadows the recognition that the most important HR related issues are determined from the organisational, task and procedural sides. For example, the optimal number of personnel (quantity and quality) can be judged only in light of the tasks to be carried out, which means that not only the size, but the professional composition should also be determined depending on the task – and probably more importantly – in advance. The size of the organisation greatly influences the way HR processes are organised, since the efficiency of human resource operations could be enhanced by exploiting advantages provided by a larger organisation. And finally, the successful introduction of new processes greatly depends on the professional expertise and supportive approach of the personnel. Based on all this, a system based approach to the problems of public administration can bring about a radical change in both the development and execution of public administration HR policy.

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The lack of a strategic approach to governmental HR policy1 “A successful HR policy is not viable without an HR development strategy. Despite this, the various governmental cycles most times lacked a long-term, strategic approach. Decisions were often made in line with current (usually budgetary) interests, and civil service development became increasingly regulatory. It was expected that the modification of the legal regulatory structure (e.g. unification) would itself make the system more efficient. The examination and development of the HR management function were ignored. Therefore it wasn’t solutions for real problems the regulators were seeking, but legal regulation, and all other aspects were subjected to this. Issues like individualisation in recruitment and remuneration, a methodological foundation for performance assessment, improvement of the efficiency of the system for further development, the promotion of career planning and mobility and the establishment of an operational management system remained unaddressed. A strategy based approach for the governmental HR policy could bring about changes in this field, and important HR decisions could be made based on coherent development principles and directions defined in advance. In this spirit, several governmental documents were approved regarding strategic developments in the civil service. While the Széll Kálmán Plan prescribed the development of new career paths, the Magyary Zoltán Public Administration Development Programme installed a detailed objective system for the reform of the personnel, and the details, method and scheduling for the execution of this were included in the Governmental HR Strategy.”2

The Magyary Programme set a predictable, attractive career path and the development of HR management as its strategic objectives. To execute this plan and these objectives, the Public Administration HR Strategy (hereinafter: the HR Strategy) was created. I appointed the objectives for the development of the civil service institutions, tools and procedures as well as the intervention areas.

1 HAZAFI, Zoltán: Közszolgálati életpályák összehangolása, Új Magyar Közigazgatás 2012. 2 Government decree 1336 of 14 Oct 2011

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Predictable, attractive career Development of HR management

Further de- Establishment Development Committed Improvement velopment of of prepared- Mobility of employer’s of leadership workers skills skills interest recon- ness ciliation Magyary Programme Magyary

Further im- Establishment Creation of Reform of Act on gov- a value and Efficient provement of of a central ernmental selection the personnel coordination leadership vocation based training officials’ civil service reserves level asspciation

Establis- chment of a Unification of job description New continued More unified the exercise system for training system legislation of employer’s promotions rights

Establishment New public of a career administration management examination system system Publicadministration HR strategz Publicadministration Transfer of Revision of the experience, ex- qualification perts’ activity system

Source: Zoltán Hazafi: Közszolgálati életpályák összehangolása, Új Magyar Közigazgatás 2012.

The realisation of the most important strategic objectives was supported by ÁROP pro- grammes3, and in order to plan the EU grants and determine their use it was extremely important to define the development objectives in terms of a strategic framework. This ensures that on one hand the objectives would be consistent and build upon on another and their execution would be co-ordinated in time, and on the other hand they would meet the priorities and indicator values defined on the level of the operative programme. The ÁROP ex-ante evaluation expressed the previous lack of development objectives and clearly set directions.

The determination of inadequate objectives and structural changes4 “Within the different priority axes the objectives were not defines as goals, but as activities (e.g. the improvement of individual perfomance). Instead of this type of wording it would be more useful to use“ higher individual performancwe”, for example.

3 The State Reform Operative Programme was approved by the Commission decision 2007/4012/EC of 21 August 2007. 4 The ex-ante evaluation of the Reform Operative Programme – Final Evaluation Report. p. 7 Budapest, Ex Ante Tanácsadó Iroda, 2007. Download: http://www.nfu.hu/download/11475/ AllamreformOperativProgram.doc

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In our opinion, the exection of ÁROP objectives requires structural changes in the public sector. The direction of the structural changes and the new structure aimed at are not described in the OP (only the objectives and the activities).”

A portion of the development goals was supported by the ÁROP-2.2.55, but it was ÁROP- 2.2.17 that focussed on the developments in the Magyary Programme and the HR Strategy. The creators of this latter programme deemed it extremely important that the outcomes related to the programme should form the basis of the next operative programme, and that the sequential nature of the development objectives and results would be ensured.6 This is the reason why they planned the implementation of research that would examine changes in the personnel system, the effect of the interventions on the personnel, and the examination of the status, development and improvement of the HR management system operated in the Hungarian public sector. Therefore the primary purpose of the research is to show a comprehensive picture about the status and the development direction of this functional professional field, focussing in all areas on the results of the new career plan introduction announced by the Magyary Programme.

Common career elements in the Magyary Programme7 In order to support transition between the three legal statuses (governmental service, law enforcement and military) and to widen the career opportunities the Magyary Programme defined the following common linking points: • Professional ethical norms • Job description based system • Selection • Evaluation • Promotion and remuneration • Training, continued training and examination system • State care/employer care • System management

5 Performed with the support of ÁROP-2.2.5, e.g. the conceptional foundation of the new public sector career models, the examination of the introduction of the Governmental Official’s Arbitration Committee as a new legal institution, the formation of the basics for the unified and integrated public sector performance management system (concept, methodology, evaluation scheme), and conceptional examination of job description analysis and evaluation. Új lendület a közigazgatásban! Report on the activities of ÁROP-2.2.5-2008- 0001. 6 The description of ÁROP-2.2.17 objectives highlighted in particular the need to further improve and integrate previous results. “The objective of the programme: the transformation of the public sector’s HR system and the development of personnel operating the organisational system and procedures integrating previous results and complementing them in order to ensure harmony between the elements of the law enforcement and defense force career plans.” quoted word-for-word Feasibility study, ÁROP-2.2.17 “Új közszolgálati élet- pálya” p. 4 7 Magyary Programme (MP 11.0) p. 45

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Consequently, the research examined measures and changes primarily of the last four years. During this period some developments had just been launched (e.g. the introduction of the job description system), or if they had already been completed, a longer time was required for their effect to be felt (e.g. restructuring of the performance assessment). Despite this, we believe that through the exploration of wider links, the examination of the international environment and analysis of the empirically collected data our conclusions are not only able to confirm or refute our previously defined hypotheses, but can also confirm the development directions as set down or reveal the need for correction.

The basis of the research “Well, in light of the above – without making a private sector career identical to a public sector career – the scientific significance, novelty and the theoretical and practical use of the expected results of the “HR management and the civil service career” research are very clear. This of course requires – as I indicated elsewhere – that in all research fields the focus should be on the exploration and presentation of the outcome and possible weaknesses of the introduction of a public administration career plan.”8 “The research concept [in this regard] is going in a good direction and it is analytical in the details and synthesising at the same time.”9

The time factor affected the research from another perspective as well. Due to the approach of the closing date of the ÁROP-2.2.17 – which provided the financial grant – the researchers were only allowed a very short time period. They tried to resolve the resulting difficulties by narrowing and carefully phrasing the research questions, discussing early results and by creating a structure that allowed more effective organisation.10

The research was also justified because no objective analyses and examinations using primarily empirical methods are available on recent changes that could provide the feedback needed for further development. The researchers hoped that their work would be able to fill this void, despite the fact that they also had to face difficulties regarding the reveal- ing, obtaining and interpreting of data and information relevant to the personnel. This experience served as a valuable addition for the further development of the civil service information system.

8 NEMES, Ferenc DR.: Copy editor’s opinion of the research plan (manuscript) 9 PRUGBERGER, Tamás, DR.: Copy editor’s opinion about the research plan (manuscript) 10 The research was led by the research leader. The different topics were examined and formulated by different working groups. The different working groups were co-ordinated by the working group leaders. The working group leaders and the research leaders formed the Research Governing Committee (RGC). In addition to the RGC, independent and professionally acclaimed editors provided quality insurance for the research. Their task was to certify the professional adherence to the research plan and to prove the adequate performance and implementation of the research. The researchers’ work was supported by a central coordinator, an employee appointed from the KIM (Ministry for Public Administration and Justice).

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2. Research topics and their wider correlations

The research examined the legal and regulatory environment and the HR management system of the civil service. On one hand, this is due to the fact that the changes defined in the Magyary Programme are aimed at these two areas, and on the other hand the issues and the unresolved problems on the agenda of the Hungarian civil service can usually be traced back to these two factors or an element of them. We tend to exaggerate the role of legal regulations as an external factor. Even though there is no doubt that the regulatory environment determines, for example, how much room for manoeuvring the users have, to what extent the aspects of integrity are applied or how the law enforcement’s work is restricted, it would be an exaggeration to accept the view that what is not regulated does not even exist.11

Systematic developments cannot be based on either one of these because they both influence the operation of the civil service. If changes are exclusively aimed at modifying regulations and restructuring institutions and organisations while HR management processes are not focused on in the developments, the expected outcomes most probably will not materialise. This is also true the other way round.

We also agree that Hungarian public administration – following the Prussian-German example – is primarily legalistic. It considers lawfulness as the most important value and it tends to ignore the requirement of efficiency and social achievements.12 It is common knowledge that heavy reliance on politics sheds different light on the examination of the efficiency of public administration when we compare it with corporate management. Its financing is not based on efficiency measurement criteria, but on political expectations.13 Nevertheless, we think there is an increasing social expectation that state bodies operated by taxpayers’ money should function at their highest efficiency, e.g. by using the personnel cost estimate – in Hungary’s case it amounts to 6.8%14 of the GDP – in an optimal way. The pressure to operate more efficiently over time will force the aspects of efficiency and social achievement to be incorporated into political thinking, and consequently politics will recognise that interaction with the social environment will require cost sensitivity and accountability in public administration. This forms the basis of social consensus for bureaucracy whereby in exchange for continuous, politically independent civil service operation the society undertakes to finance civil service positions that offer more stability, and at times higher than average remuneration.

11 SZAKÁCS, Gábor, DR.: STRATÉGIAI ALAPÚ, INTEGRÁLT EMBERI ERŐFORRÁS GAZDÁLKODÁS A KÖZSZOLGÁLATBAN. “KÖZSZOL- GÁLATI HUMÁN TÜKÖR 2013” (sectorial summary study, manuscript), p. 25 12 GAJDUSCHEK, György, DR.: A közigazgatás hatékonysága – adalékok egy fogalom értelmezéséhez, Új Magyar Közigazgatás 2012 12th issue p. 21-22 13 LŐRINCZ, LAJOS: A közigazgatás kapcsolata a gazdasággal és a politikával. Budapest, Közgazdasági és Jogi Könyvkiadó, 1981. p. 165 14 Source: NGM. Comparison of the 2013 budget estimates with the 2013 (preliminary) GDP figure. The personnel budget estimates consist of three parts: regular personnel costs, non-regular personnel costs and external personnel costs. Data is available only for regular personnel costs estimates. Regular personnel costs governed by the Act on Civil Servants (Kttv.) amount to 1.6% of the GDP.

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The dominance of the legalistic approach There are several examples from the last two decades about how the regulatory approach has become prevalent in the reformation of the civil service, and how it over- came the methodological, technical approach that focussed on the organisation, reliable operation and development of the processes. Of these, the most remarkable are the governmental targets for unified, or more unified, legislative regulation. This is partly due to the high differentiation of the legislation, and to the inequalities in the salary systems. In regards to the first problem, after the democratic transition, instead of a comprehensive regulation of civil service laws that would govern different areas of civil service, employment laws were passed in various steps (at times as many as 12 laws), and consequently there were contradictions and redundant parallels in the system. One such contradiction would lead to another issue to be solved, unfair salary differences, which were supposed to be settled with the unified civil service act.15 It is very telling that the decision on the preparation of a medium-term governmental HR policy strategy was made16 only after the unified civil service act was taken off the docket. In the end, the strategy was not approved. The biggest mistake in the preparation of the unified civil service act was the failure to have a strategic, concept-based foundation for the development of the civil service. The lawmakers didn’t approach the development of the system from the current problems, instead they sought legal regulation, and all other aspects were subjugated to this. They were hoping to make a more just and efficient system through the restructuring of the regulatory framework without analysing or evaluating the various functions of HR management. They didn’t consider the legislative reform as a tool, but as the main objective.17

We can immediately add that the legal environment and the organisation’s structure and operation – the organisation of HR processes included – as the so-called hard elements fundamentally define organisational culture (a soft element), which influences the stakeholders’ problem-solving, desired behaviour and thinking as well as their adherence to patterns.18 Therefore any intervention must target legislation, organisational structure and operation and the shaping of organisational culture at the same time.

15 VADÁSZ, János: Közszolgálati reform - A közszolgálat emberi erőforrásainak megújítása, Budapest, Kossuth 2006. p. 9 and78 16 Government decree 1052 of 23 May 2005 17 HAZAFI, Zoltán: Közszolgálati jogunk a változó nemzetközi és hazai térben (de lege lata, de lege ferenda) (PhD dissertation) p. 167 Download: http://doktori-iskola.ajk.pte.hu/files/tiny_mce/File/Archiv2/Hazafi_Zoltan_ertekezes.pdf 18 BAKACSI, Gyula: Szervezeti magatartás és vezetés, Budapest, KJK-KERSZÖV Jogi és Üzleti Kiadó, 2001 p. 226- 232 Quoted by DR. Gábor SZAKÁCS in: Stratégiai alapú, integrált emberi erőforrás gazdálkodás a közszolgálat- ban. “Közszolgálati Humán Tükör 2013”(sectoral summary study), p. 26

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General reform and change of culture19

“[…] Besides the institutional and legislative reform of Hungarian public administration our aim was for a general reform, and at the same time, a change of culture to take place. We wanted Hungarian public administration to leave behind the often faulty misconceptions and bad traditions, and work not only as a rigid authority and law en- forcer with a great deal of red tape, but instead for it to be a sensitive institutional system where the highest aim of all the institutions, workers and officials is serving the country’s citizens. This is not the citizens in general, but the person who turns to the state, to the public administration with a specific case.[…] Therefore we felt the need for a generational reform of Hungarian public administration, and for introducing a public administration scholarship programme that – contrary to the past – is not based exclusively on Hungarian practice, but provides the opportunity for the programme participants to enrich their knowledge abroad, extend their contact networks acquired during higher education, and allow them to use these for the benefit of the public and the nation.[…] We are aware that a simple generational change is not enough, we need a change of culture. We also know that while there has been radical institutional reform in public administration, a change of culture requires a longer time. You may see some good examples or bad examples. I would like you to bring both the good and the bad home with you, so we can avoid the latter and integrate the former into to the Hungarian system so that they can be exploited for the benefit of our population.”

2.1. Legislation

As indicated above, the approach to civil service issues has primarily been from a legal perspective. Therefore one of our main objectives was to examine the civil service HR situation in a complex manner, both from the legal and the HR management aspects. At the same time, questions to be addressed by the exploration and analysis of the legislative environment did not diminish in importance. Moreover, legislation often directs us to the regularities, contradictions and other features of a system’s development. These lead to research conducted by non-legislative means and methods in order to find underlying reasons and explore correlations. The results gained are able to complement each other and provide precise answers to the questions. One example is the convergence between closed and open systems.

Convergences between systems

Even though the characteristics of closed and open regulatory systems can be clearly defined, in practice there is no system that is built exclusively on either. More often,

19 Part of Tibor NAVRACSICS’s speech at the closing event of the Hungarian Public Administration Scholar- ship Programme (17 January 2014) Source: http://www.kormany.hu/hu/kozigazgatasi-es-igazsagugyi- miniszterium/videok/navra-mko

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features of both systems can be found in a country’s regulation of its civil service, the only difference is a differing emphasis on the types of regulation. The development of the two systems can be described by dynamism and mutual interaction, whereby each type draws from the advantages of the other (convergence). This is supported by the fact that where the career system is predominant, the expressed will is to improve flexibility and individualisation, i.e. to move towards a more open regulatory system. This also applies the other way round: more open systems apply regulatory elements that improve stability. It also implies that there is not one solution, nor can it be claimed that one of the regulatory models is better than the other. The balancing effect of regulatory concepts can be clearly traced throughout the history of the Hungarian regulatory system.

Nowadays we often ask to what extent should legislation be harmonised with the processes, applied tools and techniques of HR management. The question arises in regards to whether the traditional, career based regulatory frameworks are compatible with the HR processes centred on the job description that are predominant in the private sector.20 Can these two factors that are fundamental – by their nature – to the operation of the civil service be separated from each other and if so, in what manner? The authors of this essay agree with the concept that the legal regulation of civil service based on traditional values and modern HR management that goes beyond administrative tasks should not be interpreted as contrasting approaches, because the former sets the framework and the latter establishes the procedures, tools and techniques to be used within this framework.21 We can come to similar conclusions if the dilemma is approached from the aspect of a bargaining system between politics and bureaucracy. The material type working conditions of the system (performance based remuneration, flexible working hours, etc.) and the value system of bureaucratic operations are becoming increasingly independent in light of the various reform objectives. In other words, the establishment of more flexible working conditions and a managerial operation often connects with the desire to confirm Weberian values. Governments demand not only greater flexibility and efficiency, but integrity, lawfulness, professionalism, non-discrimination, risk avoidance, etc. Therefore the two factors can improve together, independently or even in opposite directions.22

20 “Based on chapter III of the 2012 version of the Magyary Programme (MP12.0) a combination of the career plan based closed system and the job description based open system should make up the new civil service system. This envisions a particular Hungarian civil service system that goes beyond the internationally accepted categories.” DR. BALÁZS, István: A magyar közigazgatás átalakulása a rendszerváltástól napjainkig, Új Magyar Közigazgatás 2012, 5th issue, p. 11 21 MONIOLLE, Carole: Droit de la fonction publique et gestion des ressources humaines : entre complémentarité et opposition, Actualité Juridiques, Fonctions Publiques (hereinafter: AJFP) 2010, p. 234 22 VAN der MEER, FRITS M. et al: Repenser le „marché bureaucratique”: l’évolution de la position (juridique) des fonctionnaires en Europe, Revue Internationale des Sciences Administratives, 2013/1 Vol. 79, p. 95-113. Doi: 10.3917/risa. 791.0095. Download: www.cairn.info/revue-internationale-des-sciences-administratives- 2013-1-page-95.htm. Date of download: 5 Dec 2013 p. 95-96 and 109

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Mixed solutions were not unknown to the Hungarian civil service in the past either. The HR operations that could be considered open prior to the democratic transition23 – though in a different political and social environment – also had some bureaucratic features. Re- newed modifications were made to the professional training regulations, the framework for regular professional training and institutional continued training was created, while the distinctive role of public administration remained stable throughout the whole period.24 The new laws passed following the democratic transition were primarily based on the principles of the career system, but at their inception they also carried job description elements and the previous labour law approach within them.

In some instances the duality can be traced back to the value system of the society or to the organisational culture. The French civil service is often referred to as an example where workers cannot be made redundant. In reality, the absolute protection is not stipulated by law, there is a legal path for redundancies (loi de dégagement des cadres), group or individual lay-offs.25 Despite this, it hasn’t been their practice at all, except in some exceptional cases26, most recently at the time of Marshal Pétain.27 This means that the guarantee of a life-long career is not established by legislation, but by social and political consensus, according to which civil servants assume their service-related obligations free of influence and they accept a lower salary compared with the private sector in return for higher job security. The change of organisational culture in itself proves that the legislative framework and value system are not necessarily opposing ideas.

This issue should be of interest to us, because the Magyary Programme faces a similar dilemma, since its recommended ideas outline a career model that preserves the advantages of the career system, but provides opportunities for flexible adjustments to change. Flexible adjustments can be performed by gradually shifting job descriptions into the focus of HR management.28 This issue can be addressed through the examination of the legal environment.

23 LŐRINCZ, Lajos, DR.: “Changes in the role of the state, with special regards to the civil service” speech held at the “Közszolgálat a XXI. században” conference on 25 February 2009. Új Magyar Közigazgatás 2009, 2nd issue, p. 5-6 24 LŐRINCZ, Lajos, DR.: Magyar közigazgatás: Dilemmák és perspektíva, Budapest, Akadémiai Kiadó, 1988, p 91-92 25 Act 84–16 of 11 January 1984, section 69 26 In 2009 there were 55 disciplinary and 19 professional inadequacy lay-offs. Source: PLASART, Philippe: “In- touchables”: du statut au contrat, l’impossible réforme du statut des fonctionnaires, Le Nouvel Economiste, download: http://www.lenouveleconomiste.fr/intouchables-du-statut-au-contrat-limpossible-reforme-du- statut-des-fonctionnaires-17870/ Date of download: 31 January 2014 27 PLASART, Philippe: Ibid. 28 HAZAFI, Zoltán: Új közszolgálati életpálya. In: DR. MÁRTON GELLÉN: Új feladatok – átalakuló közszolgálat Nemzeti Közigazgatási Intézet 2011, p. 33 Download: http://uni-nke.hu/downloads/konyvtar/digitgy/ publikacio/magyary_kotet.pdf

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A combination of two value systems

“The important question to decide is what the values should be in the establishment of the new civil service career model. In the viewpoint of the authors a state that is strong, but not unreasonably large and able to adapt to changes in a fast and flexible manner – as well as one that promotes national interests – can be based on a civil service ethical premise that besides the career model also embodies efficiency and performance. Value selection therefore requires a combination of the career plan that entails stability and predictability, and the values of efficiency and performance that presupposes flexible adjustment to change. This value system requires seemingly opposing solutions, therefore we need a career model that keeps the advantages of the career system, but provides opportunities for flexible adjustments to change. A flexible adjustment can be achieved by gradually shifting job descriptions into the focus of HR management.”29

The authors believe that there is a wide range of topics that also confirm the importance of legislation, therefore – with regard to the aforementioned limited amount of time and resources – they tried to clearly define the scope of legislative research, and focus on the three issues that on one hand can be linked to the measures of the Magyary Programme, and on the other hand can be adequately generalised in order to further develop the regulatory system. Based on these, the research examined the following issues at greater depth:

– differentiation; – unification; – independent legal development.

All three issues are closely linked to the ideas defined in the Magyary Programme, and at the same time they are connected to the issues of the modern Hungarian civil service agenda.

2.1.1. Differentiation–unification

The authors have already referred to debates about the unified or more unified regulation of the civil service, but it must be stated that the purpose of these research questions wasn’t to complement the already abundant literature on this topic. The main rationale for examining these issues was that while the Magyary Programme announced mobility between the three professional systems and a harmonisation of the regulations, in the last few years there have been regulatory changes regarding public administration personnel that revealed to the authors that differentiation–unification affects not only the wider civil service system, but it is a valid issue regarding the legal status of civil service officials. However, a more unified regulation of the three professional orders also depends upon the extent

29 Magyary Programme (MP 11.0) p. 44.

21 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research that harmonising laws alone can provide a unified regulatory framework. For example, if within the “civil” public administration the intent to keep organisational separation cannot be curbed, the chances to unify the regulation of professional orders that have very different interests are very limited. This question can be asked not only based on Act CXCIX of 2011 on Civil Service Officials (hereinafter: Kttv.), but also regarding Act XLIII of 1996 on the Service Status of the Professional Members of the Armed Services (hereinafter: Hszt.), where the sectorial, “unique organisational characteristics” also apply.

The process of differentiation–unification therefore is present in the wider civil service framework and within the individual laws, where they are strictly connected and presuppose the existence of one another, and therefore the research took both into consideration.

Civil service differentiation in a wider sense

“The legal basis for modern public service in Hungary was established by Act XXIII of 1992 on the Legal Status of Civil Servants (hereinafter: Ktv.). The Ktv. from its inception regulated the legal status of all civil servants working in public administration (state administration and municipal offices) in a unified manner. We were able to witness in the last two decades that the unified civil service status became fragmented, several statuses separated from it and these became regulated by separate legislation. As a result, besides the public administration statuses there are now: governmental service status, status of official and contracted members of the armed forces, status of law enforcement bodies (police, disaster management bodies, prison services), status at the National Tax and Customs Administration (NAV), status of official members of civil national security services, status at the prosecution services, status at courts and status in the justice system. The main direction of the differentiation process was therefore the appearance of new individual legal statuses.”30

Within the civil service system we examined the unification–differentiation process in relation to the Hungarian Defence Forces, as well as law enforcement and public administration bodies. The reason for this was that the measures for mobility in the Magyary Programme directly affected these three service areas.31

The issues of unification–differentiation were dealt with on the level of individual laws, more precisely in regards to the Kttv. and the Hszt., because the homogenous regulatory system of Act CCV on the legal status of defence forces (hereinafter: Hjt.) did not make this necessary.

30 Új közszolgálati életpálya. Emberi erőforrás gazdálkodás és közszolgálati életpálya kutatás. (hereinafter: Re- search plan) p. 2 (Manuscript) 31 Magyary Programme (MP 11.0) p. 42

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2.1.2. Differentiation/unification in public administration: the individual regulation of autonomous bodies and the question of mixel statuses

In the case of the Kttv. the individual regulation of autonomous bodies and mixed statuses were examined.

Recently it was primarily at autonomous bodies that special provisions appeared exempt- ing workers in larger numbers from the unified legislative framework. The main reason for this was to ensure the independence of these bodies in HR issues. In general it means that the status of the leader of these bodies is governed by special rules, members of their staff qualify not as governmental officials, but as civil servants, which provides more room to manoeuvre for the employer. Compared with the Kttv. these bodies’ own legal status regulations include special provisions, and delegate important HR issues to the leader of these organisations.32 In order to get a full picture of the independent regulation of autonomous bodies we examined the characteristics of legislation and HR management in independent central governmental bodies of other European countries.

The issue of differentiation–unification can be examined not only between different types of governmental bodies and between organisations, but within one governmental body as well. Although in 1992 the Ktv. established a “one body, one status” principle regarding personnel, later this became more lenient, and today there are so-called mixed status bodies, where some employees are not civil servant officials, but public workers or regular employees. In the last few years several measures were taken that made this a current issue again or shed a different light on the issue of mixed statuses.

Primarily as a result of the central public administration’s reorganisation, former public workers or regular employees became qualified as governmental officials. If the job description of these former public workers and regular employees didn’t change, their governmental official status in reality now covers a public worker or regular employee status. This situation can be identified as a latent or de facto mixed status as opposed to the de jure mixed status.

At the same time, in regards to the National Tax and Customs Administration (hereinafter: NAV) there is a third version in place. For a number of HR functions the NAV has special regulations stipulated in its own status law, excluding the NAV governmental officials from the unified regulation in areas such as continued training, performance assessment, legal disputes, and with some exceptions, promotion and remuneration. The NAV was formed through the merger of two totally independent organisations, and as a result personnel subject to the Hszt. and Kttv. came under the same organisational management. In this situation it is understandable that a new final objective surfaced to create a new, independent and unique (mixed) legal status. As a consequence, in NAV’s case

32 For example, the President of the National Media and Infocommunication Authority determines salary policy principles, base salary of the civil servants, and establishes the details of the performance assessment system, recruitment policy and continued training related regulations for the authority.

23 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research a new type of mixed status was able to arise that could be referred to as an integration- centred approach, referring to the integration of the two statuses and the will to create a new one.

Employment of regular employees in public administration came to the forefront when the Kttv. confirmed that for positions not directly linked to public office, management, examination or supervision, regular employees can be hired. It also set a 10% limit for such employment in relation to the entire number of the workforce, with exemptions to be granted in special cases.33 The number of regular employees working at public administration bodies – more than 15,000 – shows that co-employment of public administration officials and regular employees is significant.34 Even though this number and it related percentage seems to be high (11.8%), it is below the ratio in career-based countries (17.2 %).35

Employees in Austrian public administration36 56% of the Austrian Federal public administration (45 000 employees) has a regular work contract (Vertagsbediensteten) and only 44% is employed as civil servants (Beamten).37

Employed as regular employees Public offi cials Both groups

--tasks of great responsibility employment contract for a ﬁ xed period or for indeﬁ nite time life-long employment status main employment

rights arising from the legal status + rights arising from the legal status extra rights service obligations further development civil settlement of legal disputes settlement of legal disputes in admi- performance-based fringe (Labour Court) nistrative courts beneﬁ ts

Employment contracts can be for a fixed period or for an indefinite time. The regular employment is contract-based, but in several cases there is legislative intervention that creates for the employee a near civil servant status. Based on this, regular employees can be to a great extent considered nearly civil servants rather than regular employees. This particularly applies because in the legal status of civil servants (e.g. in their remuneration) the job description element, a characteristic of regular employment contracts, also appears. There is strong convergence between the two legal statuses.

33 Kttv. Section 8, Subsections (1) to (4). 34 According to NGM data on 31 May 2013. Source: data collection on government agencies, nr. 1668 OSAP (2013) 35 E.g. the French civil service. Source: Rapport annuel sur l’état de la fonction publique (Politiques et pratiques de ressources humaines, Faits et chiffres) DGAFP, Paris, 2012. La documentation francaise. p. 289 36 Based on the compilation of Csaba DÁVID. 37 This data reflects the situation on 12 December 2012. Source: Personal des Bundes 2013. p. 33

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Employed as regular employees Public offi cials employment group Salary ranking salary group (v1-v5) (A1-A7) Job description evaluation evaluation group functional group Given job description job description job description

The work contract can be terminated for “appropriate general” reasons (e.g. workforce redundancies, changes in working conditions), but people above the age of 50 with at least 10 years of employment enjoy special protection, because their work contract cannot be terminated on the grounds of redundancies or changes in the organisational structure or working conditions. The salary is established based on a fixed ranking. They are ranked into 5 different groups (v1: “highest service” v2: “high service” v3: “specialist service” v4: “medium service” v5: “supplementary service”) based on their job description. These employees can be temporarily or permanently transferred to another public administration body. It is their basic obligation to carry out their work lawfully, hon- estly, with dedication and without bias. During their work and in their private life they are obliged to behave in a manner that maintains the public’s trust. Similarly to the civil servants, regular employees must be included in the yearly ranking based on their service time. The first such ranking is after 5 years spent in public administration, and every second year after that. In their service time, employment in the private sector counts as half, but a maximum 1.5 years can be included in the calculations. Employees must participate in training programmes prescribed by law. This means they have to successfully pass the basic training. Failure to do so can result in the termination of the work contract.

2.1.3. Differentiation–unification in law enforcement: job description classification

The Hszt. passed in 1996 – in the spirit of Act X of 1971 – settled the service status of official members of the defence and the law enforcement forces in a single piece of legislation. By its nature the result was that besides the general common rules, a large special section of the legislation with largely varying content was created, depending on the lob- bying power of the defence and the law enforcement bodies.38 However, a new situation arose when the Hungarian Defence Forces “left” the Hszt. with its unique legal status legislation. A recurrent question in organisational management and labour law regulation is what positions can employees with different statuses fulfil, and when is employment at an official legal status or another legal status (usually public administration) justified.

38 Research plan, p. 4

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2.1.4. International development directions: appointments or contracts

The examination of differentiation–unification would not be complete without taking the international, primarily the European development trends into consideration. In this regard we have to see that the need for unification arises where the special civil service regulation is significant and very fragmented. A good example is the French civil service. As a consequence of the separation of power, there is no unified legislation that would cover workers in the executive, legislative and judicial branches.39 All of these have their own regulations. Not even executive power is unified, since there is special legislation attached to the legal framework (statut général) that applies to the public, municipal and health care sectors, but this legal framework doesn’t apply to the defence forces that due to their unique character have their own legislation.40 Despite the differentiated regulation, or precisely because of it, there is opportunity for mobility between the different areas. The most common form of this is détâchement that in our definitions would qualify as transfer for a definite period of time.41 Transfer, however, usually goes in only one direction, towards public administration. This means that judges (magistrat) and soldiers can fill civil servant positions, but this is not possible the other way round. The principle of separation of powers isolates the legislative area the most, since no transfer is possible to or from this branch of power.42 Mobility hardly works within public administration (state administration, municipalities, health care) even though legislation is aimed at making it more flexible.43 The changing regulations made it possible for employees with special expertise to be admitted from the private sector for the performance of ad hoc tasks. The number of such employees had already increased significantly at various ministries before the amendment to the law.44 This phenomenon leads to the problem of mixed legal statuses. 39 Article 64 of the French Constitution stipulates that the legal status of judges is subject to separate legislation. (V. Ord. no 58-1270 of 22 Dec 1958 portant loi organique relative au statut de la magistrature.) 40 The legal status of employees at public service providers in commerce and industry is stipulated by the general labour law, except the director, the financial and operations managers who are public officials, therefore fall under the effect of public law. At times there could be civil servants working at companies like the French Post or France Telecom, because these companies used to have a public administration status, so their employees also qualified as civil servants. Due to this, some positions retained their management style. 41 The purpose of détâchement is that upon the civil servant’s request, the civil servant is “transferred” for a specific period of time (usually 5 years) from his/her corps to another corps, a state-owned or municipal company, association, foundation or public benefit private company, an international company or another state’s official body. The fonctionnaire détâché preserves the right that following the termination of the “transfer” – preserving his/her promotion and pension privileges – he/she would be reintegrated into his/her corps. 42 Act 83–634 of 13 July 1983, portant droits et obligations des fonctionnaires, Article 3 43 The amendment of the law made the application of “mise à disposition” more flexible. It can be considered as transfer for service purposes, when the civil servant is “lent”, and at the same time maintains his/her career promotion opportunities and remuneration in the original corps. (Act 148 of 2 February 2007) Mobility between the three public administration service sectors (state, municipality, health care) in 2010 was 0.2%. Transfers show a better picture, they amounted to 4.2% in the same year. Source: Rapport annuel sur l’état de la fonction publique (Politiques et pratiques de ressources humaines, Faits et chiffres) DGAFP, Paris, 2012. La documentation francaise. p. 398 and 401 44 Their ratio in some directorates reached 30-50%. Benjamin GAEL: Modernisation de la fonction publique et mobilité: la réforme des mises à disposition, AJFP 2007. p. 324

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The starting point for mixed legal statuses was that it is not a unique phenomenon, the percentage of appointed civil servants in the public sector has been diminishing in other European countries as well45, while the number of employees with a regular work contract is increasing. All this takes place despite the fact that there is high level legislation that prescribes the exclusivity of civil servant appointments. In Germany tasks entailing public authority can be fulfilled exclusively by civil servants46, and the Constitutions of Belgium, Cyprus, Greece, Spain and the Netherlands also contain provisions prescribing that primarily civil servants must be employed in public administration. There is similar legislation in France in place where exceptions can only be made through law. Neverthe- less, the principle that “public power can be exercised only by a civil servant” is breached increasingly more often.47

But why are the changes in the ratio of appointed civil servants and contractual employees important?

The rights and obligations of civil servants – unlike regular employees – are set out in laws and other legislation, i.e. the content of their legal status is determined unilaterally, universally and impersonally by the state (situation statutaire). As a consequence, their legal status is uniform and can be modified in the manner and to the extent of a legislative amendment. Resulting from this unilateral determination the legislature can amend the regulations, rights and obligations any time, without consent from the civil servant. This ensures that employment can be flexibly modified if service and organisational interests change.48 This must be stressed, because ensuring public service and its continuous operation is a public interest (principe de la continuité du service public).49 Decisions about public duties are made because these services are required to sustain social and community life, and therefore the continuous performance of the task must be ensured “at any cost”.50 This, however, requires a wide regulatory framework for public administration with room to manoeuvre.

The normative definition of rights and obligations guarantee a hierarchical operation, the interests of service, the state and the public as well as professional loyalty, while it provides protection for civil servants against ill-treatment by the leadership and their employers. If the rules define the content of the employment in detail (personal promotional plan, list of duties, responsibilities, etc.), the co-dependence between the supervisor and

45 La fexibilisation du statut des fonctionnaires: De l’emloi à vie à d’autres relations de travail plus flexibles? Study prepared for the public administration director-generals of EU member states. 2005. Luxemburg p. 18 46 Section 4 of Article 33 of the German constitution says: “it is a general principle that the exercise of public authority should permanently be entrusted to members of the civil service with a public legal status of service and loyalty.” 47 Zoltán, HAZAFI : Közszolgálati jogunk a változó nemzetközi és hazai térben (de lege lata, de lege ferenda) (PhD dissertation) p. 16 48 BONNARD, Roger: Précis de Droit administratif, 4eme éd., Paris 1942. p. 446-447 49 DUGUIT, Léon: Droit constitutionnel, 1re éd. 1907, p. 416 Gaston JÈZE: Principes généraux du droit administratif, Paris 3e éd. 1930, p. 341, newly published Dalloz 2004. 50 VEDEL, George - DELVOLVÉ, Pierre: Droit administratif, Presse Universitaire de France, 1958 Paris p. 1110

27 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research the subordinate is greatly reduced in the sense that detailed, extensive regulations practically exclude individual initiative, bargaining and the exercise of pressure; but without the “rules of the game” each of these could lead to abuse and ill-treatment.51 An important element of the guarantee is the separation of the job description and classification that ensures continued employment for the civil servant after the modification or cancelling of the job description.

Guarantees of the civil servant legal status are at the same time the weakest points for efficiency. Uniformity limits differentiation and it makes it difficult for public administration to be competitive on the labour market and to have access to the expertise it requires. There are only limited opportunities to lay off civil servants who became redundant due to organisational restructuring, and this increases operational costs. Therefore it is obvious that as budgetary and efficiency aspects come to the forefront, there is an increasing number of regular employees in public administration.

In contractual agreements it is the parties who determine the content of the legal relationship – within certain legislative framework. This ensures great flexibility for the employer to acquire an employee with special expertise according to the current labour market conditions for the period and to the extent that the employee is needed.

The relationship between civil service appointment and contractual employment can be defined in terms of stability, predictability and efficiency. They don’t exclude one another, their harmonisation is viable, but this requires differentiation between the public service tasks.

There are authors who don’t consider the act of creating the legal relationship a determining factor, rather it is the nature of the task that the appointment or the contract is about. The point in making the distinction is that civil servants can fulfil tasks of public authority (acte d’autorité) or tasks serving the purposes of the organisation’s operation (acte de gestion). In reality we can talk about a special supply of tasks and participation in exer- cising public authority only in the first case. It cannot have a contractual basis since the authorisation and the sphere of competence is not created through a contract. In contrast, the tasks required for the operation of the organisation are services that can be agreed upon in a private contract.52

Naturally, this separation in many instances is not that obvious, and this is why there are examples of regular contractual employment becoming normative. This is not a situation where as employer and employee the public administration body and the worker mutually agree about the provisions of the contract that later on can be modified by mutual consent. Instead, the public administration body unilaterally defines

51 GOULDNER, Aloin W.: Patterns of Industrial Bureaucracy. Glancol, Free Press, 1953. Referred to in LŐRINCZ, Lajos: A közigazgatás kapcsolata a gazdasággal és a politikával. Budapest, Közgazdasági és Jogi Könyvkiadó, 1981. p. 157 footnote 116. 52 BERTHÉLEMY, H.: Traité élémentaire de droit administratif, 13e ed. Paris, 1933 p. 56-59

28 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research the content of the contract, and if it deems it necessary can modify it without written consent from the civil servant.53 Therefore unilateral determination prevails even in these contracts. At the same time regular contractual employment differs from civil service appointment in that it is not necessarily uniform, but at times the employer can determine it in a differentiated manner, with the restriction that separate legisla- tion54 applies to employees with regular work contracts and some provisions of the Act on the legal status of civil servants must also be considered effective. In other words, these normative rules are automatically built in the contract without special clauses, and no derogation is possible.

In this case the regular contractual employment is partially defined by public law, and therefore it is not a private, but a public law or public service contract that we are talk- ing about (contrat de droit public). This is signed when the legal relationship is created for the fulfilment of basic public service tasks. If no such direct relationship is present, the contract to be signed is a general private contract.55 A public law contract – in regards to its legal effect – is very close to a civil service appointment. In French public service legislation the legal relationship is created even if the contract contains a legal error that cannot be remedied. In this case – within the framework of the contract – another similar, or if it is not possible or the person requests it, a totally different position must be offered.56 This obligation to offer a position burdens the employer even if the employee with a contract for an indefinite period is to be dismissed due to termination of the job description. Otherwise the termination of the work contract is unlawful.57

53 An example for this is the French civil service. The Conseil d’Etat repeatedly confirmed that regular contractual employees are almost in the same position as appointed civil servants in the sense that the public administration body can freely – without consent from the employee – modify the work contract and the workers cannot make claims based on acquired rights. (CE 2 March 1949, Synd. nat. du personnel civil des contrôles techniques; CE 27 June 1958, Synd. autonome des personnels du ministère de l'industrie; CE 14 Oct. 1983, Zarka; CE 18 March 1994, Mme Verpeaux. Reference to the decision found in: Salon, Serge – Savignac, Jean Charles: Code de la fonction publique commenté. Édition 2013. Paris, Dalloz-Sirey: 2013. (hereinafter: Com- mentaire de code de la fonction publique) online version available here: http://www.dalloz.fr/documentation/ Document?id=CDFP. Date of download: 26. 01. 2014. 54 Décret n°86-83 of 17 janvier 1986 relatif aux dispositions générales applicables aux agents non titulaires de l'Etat pris pour l'application de l'article 7 de la loi n° 84-16 du 11 janvier 1984 portant dispositions statutaires relatives à la fonction publique de l'Etat. 55 Préfet de la Région Rhône-Alpes, préfet du Rhône et a. c/ Conseil des prud'hommes de Lyon: Lebon 536, ju- risprudence dite «Berkani; Mme Hamon c/ Greta Sud: AJFP 1997, no 3, p. 15. Reference to the decision found in: Commentaire de code de la fonction publique. 56 CE 31 Dec 2008, M. Cavallo, req. no 283256: Lebon 481; AJDA 2009. 142,chron. Liéber et Botteghi: Le retour du «fonctionnaire contractuel» Reference to the decision found in: Commentaire de code de la fonction publique. 57 See the decision of the Conseil d’Etat! CE, 18 December 2013, n° 366369 Source: La veille juridique sur la fonction publique janvier 2014 – n° 54 Downloaded from: http://www.fonction-publique.gouv.fr/ fonction-publique-262, Time of download: 26.01.2014

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Different techniques can be used in order to prevent endless use of contractual employment; for example, separate legislation lists the bodies and positions that can employ people with a regular work contract.58 A further guarantee can be the institutionalisation of the verification process. Thus, for example the Conseil d’Etat can repeal the legislative provision that is used to add a work position to the list through an exception if the conditions for a regular work contract are not met.

Although according to the general principles, only civil servant appointments can be made for positions that serve the continuous operation of the civil service, there are exceptions to this rule justified by political decisions59 in the case of tasks that require special expertise, or where the freedom of the performance of the task and authority must be guaranteed.

The roots of the public service contract can be found in the Hungarian civil service before World War II. In practice the tasks subject to these contracts and the manner of task performance (subordination, extra responsibility, penal protection and fixed remuneration) were almost fully identical with the civil servant appointment, with the only exception that contracted employees didn’t acquire state pension rights.60

Contractual employment is closely linked to the increased importance of the labour law and the new public administration management, which brought the supervision of traditional, public law based regulation onto the agenda in several European countries. This can even be considered a common feature. Countries differ in the answers they give for the questions that arise. Some countries aim to maintain the status quo where some measures were taken to introduce HR tools that would enable greater flexibility, but the adopted reforms didn’t exceed the framework of the traditional public law. Among such countries we can list Germany, Belgium and France. In the case of other countries we can witness a decline in special regulations. The Scandinavian states, Italy and Switzerland made the biggest progress towards eliminating independent public service regulations. In the end, we can distinguish countries where initiatives to establish or strengthen Weberian style regulation were prevalent. These countries include the Eastern European states and the United Kingdom. In the former, adherence to the EU accession criteria played a role in strengthening the legal framework of the public sector, even if the adopted reforms often were aimed at the transposing of NPM tools and methods, while in the United Kingdom the Act on governance can be considered a milestone in the development of British civil service.61

58 Décret n°84-455 du 14 juin 1984 fixant la liste des institutions administratives spécialisées de l'Etat prévue au 3° de l'article 3 de la loi n° 84-16 du 11 janvier 1984 portant dispositions statutaires relatives à la fonction publique de l'Etat. Eg. Autorité des marchés financiers, Haute Autorité de la communication audiovisuelle (NOTA: actuellement CSA), Commission de la concurrence, Médiateur, Conseil supérieur de l'audiovisuel. 59 E.g. appointment for certain high ranking positions in France belongs to the discretionary competence of the government. 60 MAGYARY, Zoltán: Magyar közigazgatás. Budapest, Királyi Magyar Egyetemi Nyomda, 1942. p. 383-384 61 VAN der MEER, FRITS M.: quoted, in footnote 22, p. 111-112

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The above categories might be seen as oversimplification, since we found characteristics in the different countries that point in different directions. For example, because of the transposition obligation of EU directives into the civil service and the job description approach of EU regulations in France – a country with strong civil service foundations – people increasingly envision the decline of the civil service law and question the rationale behind special regulations.62 These aspects only make the picture more complete, and they do not change the development trend. It is clearly visible that the future of civil service law forms an important part of the professional dialogue in almost all European countries, and therefore our research couldn’t ignore the relevant changes of the last few years.

2.1.5. Development of an independent branch of law?

The development of an independent branch of law came up because – even though there had been debates in the past about civil service law being an independent branch63 – the legislative amendments in the last few years reflected divergence from classical labour law. Act I of 2012 on the Labour Code (hereinafter: Mt.) lost its function as a background regulation, and at the same time several provisions were added to the Kttv. that earlier were included in the regulation governing regular work contracts. The purpose of the legislation was that legal institutions of the Mt. would be transposed only if they can fully meet the higher expectations of the civil service.

2.2. HR management

The measures of the Magyary Programme presuppose a gradual transition from the present career based system to an open job description based system. To provide good foundations for this, first a new system and methodology suitable for job description based career planning has to be built. In addition to the low level of salaries and fringe benefits, a successful transition is mostly impeded by defects in the areas of an approach centred on individuals, career building, leadership, regulations and work tools.64 The majority of these issues belong to HR management or are closely linked to it. In addition to the aforementioned complex approach, these reasons also confirmed that the research has to cover the vital aspects of HR management as well. We are convinced that HR issues must be studied not only on the basis of correlation, but this specialist field could provide added value to the entire civil service’s task distribution with a cost-efficient operation. This is all the more true when we acknowledge that actions, achievements, prompting others to

62 BOURDON, J., Vers une banalisation du droit de la fonction publique? AJFP 2005 p. 284 J. WOLIKOW: Fonc- tionnaires et salariés: différences, convergences, AJFP 2010 p. 172, M. TOUZEIL-DIVINA: « Travaillisation" ou "privatisation" des fonctions publiques? AJFP 2010 p. 228 63 Right before the democratic transition there was a heated debate about whether civil service should be regulated as a special part of the labour law or as part of public law. The group that thought special features didn’t justify that civil service regulations should be incorporated into the public administration law as a separate field remained a minority. ÁDÁM, L. Based on his speech at the first National HR Policy Conference, 5-7 De- cember 1989. Magyar Közigazgatás 1990 June 64 Magyary Programme (MP 12.0) p. 56

31 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research action and leadership in public administration is possible only if everyone is considered to be an able and ready resource for action.65 This requires that administrative HR work be transformed into a strategy-based HR management system operated in an integrated manner based on competencies.66

Magyary on people as resources67 “Everyone has to be a morally committed and available resource in order to act, achieve results and most importantly to lead and motivate other people. If there is virtue in public administration, it will take the initiative, it will take responsibility and it won’t avoid tasks, but will find pleasure in achievements, progress and in making people’s life better. Then it will be at the pinnacle of its calling. But if someone keeps track of the time until the official working hours or the pension entitlement are fulfilled by working just enough to avoid being laid off, then this person is not a resource, but lacks virtue and won’t be able to fulfil his or her calling. If all or most people who make up an organisation are like this, they will reduce the value of the organisation at the expense of the nation.”

2.2.1. The place and role of HR management in performance management

The examination of civil service HR dimensions is becoming more prevalent even internationally, which is obviously linked to the search for flexible tools and boosters of operational efficiency.68 However, this would be an oversimplification of the HR related issues. Today we can say that civil service has not only recognised the role and importance of HR in performance management, but the various countries have also set their HR policies in line with their strategic objectives and directions. The majority have been led by the recognition that organisational performance can improve if the HR function is integrated both vertically and horizontally into the organisation.69 The former means supporting the organisation’s strategic objectives, the latter means development of the HR processes (e.g.: recruitment, remuneration, training) into an integrated system. This thinking has

65 MAGYARY: i.m. footnote 60, p. 137 66 Research plan, p. 8 67 MAGYARY: quoted, footnote 60, p. 137 68 Several HR studies have been made within the framework of the European Public Administration Network (EUPAN) in the last few years. These are the following: The impact of individual assessments on organisational performance in the public services of EU member states; What are Public Services Good at? Success of Public Services in the Field of Human Resource Management; Leadership Competencies for Change Man- agement; Human Resources Performance – Survey of public administration services in the European Union; Leistungsbewertung im öffentlichen Dienst in den Mitgliedstaaten der Europäischen Union. 69 Chemla-Lafay, Annie - Deleplace, Marie-Thérèse - le Flécher, Claire – Meimon, Julien – Trosa, Sylvie: Per- formance de la fonction ressources humaines : définitions et cadre d'analyse, Département Recherche, Études, Veille – Institut de la Gestion Publique du Développement Economique, Ministère du budget, des comptes publics et de la fonction publique, 2008. p. 15, 26 Download: http://infos.emploipublic.fr/wp-content/ uploads/2011/11/rapport_chemla_lafay.pdf Date of download: 30.01.2014 Revue de l'OCDE sur la gestion des ressources humaines dans les administrations publiques en Belgique, OECD, 2007. p. 64

32 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research gone so far that the components of the performance and methods of measurements (evaluation) of the HR activities are researched in civil service; and the discussion of the results is on the agenda of the European Public Administration Network.70 These analyses examine processes that confirm the success of HR processes in various countries.71

The radical transformation of the approach to HR automatically led to the professionalisation of HR activities, which means that its professional competencies also change very fast. Civil servants nowadays do not require lifelong employment nearly as much; they expect the development of their skills and personal care instead. But this requires HR colleagues to be able to meet the new expectations.

During the research we examined demographic changes in the most recent period and explored the trends and the underlying reasons, as well as the effect on HR management of the quantitative and qualitative changes in the composition of personnel. Based on the data and information explored, where and how can the opportunities for development and improvement be exploited? Where and to what extent do the legal institutions operated by public law correspond to integrated modern HR management? Based on these, how can the processes of the integrated system and the functions that are linked to these processes be built? Where and to what extent can the new HR management structure correspond to and be asserted in public service legislation?

We sought an answer for the following questions: How is HR management and personnel related work conducted (the quality of the work, the organisational and methodological framework, the number of employees) in the examined public service areas? What are the HR functions that they provide and what functions are missing? What are the differences between the range of services and their quality provided by the different public service bodies? How can bureaucratic burdens be reduced? What are the conditions for transforming administrative HR related work? How can the present work be transformed to be strategic and integrated?

We composed a picture of the expectations HR’s role according to leaders, mid-level managers and subordinates in the public sector. Are these expectations in harmony with the image HR workers functioning in these fields have of themselves? How does the final picture relate to the ideal situation necessary for the introduction of an integrated HR management system? If there is a great difference between the two, then what are the areas to improve? What competencies need to be developed and what are the organisational, structural and methodological changes that should be introduced in higher education and in workplace training?

70 European Public Administration Network (EUPAN) 71 Chemla-Lafay, Annie et al: i.m. footnote 69, p. 11

33 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research

2.2.2. A combined analysis of legislation and HR processes based on the system model

For the combined analysis of the legal regulations and HR processes we established a system model that contains the processes of strategy-based, integrated HR management on an organisational level, and it also matches them with the governmental functions that influence these processes. By analysing the legislative regulations we wanted to answer the following questions: How regulated are organisational level processes? What are the differences between the various legal statuses regarding their content? Do we find processes that can be partially or fully harmonised? We also examined whether there is a link between the standard of the functioning of the process at the organisational level and the extent of the regulations. During the research we highlighted performance assessment as the most accepted form of organisational process and examined the different stages of its development. Based on the conclusions drawn we found the key factors that determine the development of an HR process.

3. Working hypotheses

Based on the above we elaborated the following hypotheses.

In the different civil service professional systems the HR management systems fulfil the same functions, in the same way and according to the same principles (e.g. a recruitment, evaluation, remuneration system is present in all areas), but the relevant legislation shows significant differences. Resulting from the identical functions there is no obstacle to a standardised legislative regulation based on stable public law – one that is set according to common principles and values. This means that contrary to the previous legal approach, the foundation for unification can be the identical functions of HR management systems that are built on unified principles.72 In relation to the international solutions we found that the HR systems of law enforcement bodies show similarities with the regulations and practice of civilian public administration, but its extent and the solutions are different.73

The differentiation between and inside the legal statuses has sped up, and selection between the legal statuses happens without guiding principles, often independently of the job description. The special regulations that are meant to ensure independence to the autonomous bodies are not consistent, and there are significant differences within one public body (one public body type). As a result independent, stand-alone statutes are created that cover a full legal status and break the general coherence of the Kttv. regulations. We also suppose that derogation from the general rules takes place at the lowest level of legislation and that poses constitutional concerns. The general statement that national traditions, the legal system and – to varying extents in different areas – the alternating di- 72 Research plan, p. 13 73 Ibid p. 15

34 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research rection of political decision-making affect the legal status of independent bodies and their HR management is true on an international level. Employment at varying legal statuses within one organisation creates tension.

In the case of NAV a single determination for (organisational) unification generated differentiation and separation in the area of labour law. Consequently, regulatory integration is being shaped that can lead to the creation of a new, independent, unique (mixed) legal status. At the same time the task of law application has become more complex – even though the Mt. no longer functions as background legislation – with the Kttv., the Hszt., and Act CXXII on the National Tax and Customs Administration (hereinafter: NAV tv.), as has implementing orders and internal regulations in a multi-level regulatory system.

In recent times, due to the legislative processes that have occurred, civil service law has become increasingly isolated from classic labour law. It now has characteristics of an independent legal branch as far as the subject of regulation (legal statuses relating to civil service) and its methodology are concerned. However, along with the distancing circumstances there are several factors that have become important in recent times where the two areas (the labour code of the public sector and private sector) show a unique and new convergence. The factors - which can be forecast based on the often very initial or recent international examples - generate new types of relationships, synergies and overlapping between public and private sector employment.

We think that the foundations, and personal, legal, economic and structural conditions for the most modern, strategy-based, integrated HR management system that is to be built and successfully operated in the civil service are not given or only partially so. At the same time we suppose that by building a job description based system the chances of creating such a system significantly improve. The authors think that through targeted, methodologically assisted work, the incorporation of HR functions into the HR processes and by providing a civil law background necessary for the operation of an integrated HR management system, by strengthening strategic thinking and vision, by elevating HR to strategic importance and by efficient management of the changes this goal becomes attainable.

4. Factors influencing civil service developments

Following the evaluation of our research results, the authors came to the conclusion that macro-level factors that have influenced the development of the civil service system are clearly visible, and therefore they are important in proving the working hypotheses too. In order to shed light on this connection we will not simply go through our questions, but the research results will be presented in relation to the factors we deem decisive and influential regarding the issue.

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In our opinion changes to the organisational and task system, the need for mobility and the labour market had a major influence on the development of the civil service in the period examined.

5. The influence of the organisation and the task system

Unification and differentiation based on the Kttv.

The Kttv. can be considered as a step towards a more unified regulatory system. Formal- ly it cancelled the separate regulations of the governmental official and civil servant statuses, separated the Mt. that was used as a legal background, set the framework for non- traditional employment forms in the civil service (e.g. regular work contracts), made provisions regarding civil service HR management tasks, re-unified reconciliation and repealed the overly differentiated and parallel regulations of the former qualification, performance assessment and work evaluation. It incorporated interpreting provisions for a unified application of definitions; it is extremely important in the incorporation of labour code regulations since law stipulated what is meant by working hours, shift work, and weekly and daily working time, etc. It determined the general behavioural expectations for subjects of the legal status, regulated the protection of personal rights and equal treatment. In a separate chapter, but within the governmental service legal status, it regulated the status of the public administration and deputy state secretaries. However, the new law didn’t repair the previous status quo, in that it retained the legal status duality of governmental officials and civil servants, as opposed to the unified Ktv. definition of a civil servant. It considers regulations regarding governmental officials as primary, and it defines alternative rules to be applied at local municipalities and other autonomous bodies in a separate chapter in regards to the primary source.

Mixed status is the consequence of a differentiated legal regulation. If more distant connections are taken into consideration, in this case that the tasks prescribed for the public administration define the organisation and its personnel (number and composition), then we can see that the issues of a mixed legal status can be linked to the task system and the organisation and the changes within these. This relationship can be demonstrated in the case of a merger of so-called autonomous organisations or organisations with different legal statuses, as well as public administration bodies of mixed profiles and organisations with different legal statuses. We could say that the mixed status is a kind of “child” of this relationship. There is one instance when the expansion of the mixed status can be explained not through the unique organisational and task system, but much more through the loosening up of the primacy of the civil service appointment and through the increasingly wider use of regular work contract employment. The latter issue therefore is dealt with in a separate point.

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5.1. Autonomous bodies: specialisation between organisation types and within the civil service legal status

Behind the formation and development of the autonomous bodies there is the widening of state participation as well as changes in the system and method of governance. Public administration seeks to influence an increasingly wider area of the society and the economy, and this requires new types of organisations.74 These are difficult to categorise due to their different development paths.

Even opinions about them differ in Hungarian public administration science. Sándor Berényi classifies the autonomous bodies – while confirming their independence from the government – as part of the public administration’s subsystem, while according to István György it is problematic to consider these bodies as part of the central public administration.75 The latter opinion is shared by István Balázs who views the autonomous bodies as so-called atypical public administration bodies that in the traditional sense don’t qualify as public administration bodies, but are part of the executive branch even though they are effectively independent from it.76

According to Manning these public bodies usually specialise, their management is different from the traditional hierarchy and they enjoy greater operational and financial autonomy. At the same time they must have greater transparency and accountability, and the minister responsible for their operation usually doesn’t interfere with their daily business, but they still have to report to the parliament.77

Based on international comparisons we can conclude that the characteristics of the public body types examined are the following: they are not under the government’s direction, in a non-executive system they function in a traditional ministry format and their personnel are employed through various legal statuses.78

74 LŐRINCZ, Lajos: Új Magyar Közigazgatás 1984, 2nd issue, p. 46-60 Quoted by György, István: Az autonóm szervek személyi állományának közszolgálati jogviszonyáról, substudy (manuscript) p. 1-2 75 For the independence of autonomous public administration bodies Sándor BERÉNYI argues based on the public administration tasks that they fulfil, therefore they should be categorised as part of the state administration subsystem of the public administration system. Berényi, Sándor: Az európai közigazgatási rendszerek intézményei (autonómiák és önkormányzatok), Budapest, Rejtjel 2003 p. 301-302 As István György highlights in his sub-study, not one type of autonomous body can be included among the central state administration bodies without concern. Dr. György, István: Az autonóm szervek személyi állományának közszolgálati jogvis- zonyáról, p. 3 76 BALÁZS, István: A közvetett közigazgatás és az autonóm struktúrák lehetséges alkalmazási területei a magyar közigazgatásban. in: Balázs, István - Jancsovics, Andrea: Alternatív gondolatok a közigazgatásról, dereguláció: a közszolgálat és a nyilvánosság, Közigazgatási Füzetek 13. Budapest, MKI 1994 p. 7-31 Quoted by Dr. György, István: Az autonóm szervek személyi állományának közszolgálati jogviszonyáról, sub-study (manuscript) p. 2-3 77 MANNING, Nick – SHEPHERD, Geoffrey: Get Brief: Arms Length Bodies, The World Bank, 2009. Quoted by LINDER, Viktória: Egyes független jogállású központi állami szervek személyi állományára vonatkozó jogi szabályozás sajátosságai és humánerőforrás gazdálkodásuk jellegzetességei nemzetközi összehasonlításban, sub-study (manuscript) p. 5 78 Ibid. p. 29

37 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research

The increase in the number of autonomous bodies gradually extended the special public administration bodies that come under the effect of the Ktv. and at the same time many different rules regulating the status of civil servants were built in the system. Originally the law was effective only for the offices of state authorities, then on 1 No- vember 1995 the first autonomous public administration body (the Council of Public Procurements) and on 1 February 1996 the first independent regulatory organ – using the current terminology – the National Radio and Television Authority was added expressis verbis.79 The group of autonomous public bodies has continued to grow in the last few years as well.

Regulation of HR legal statuses at these organisations is multiply specialised. The fact that the personnel at these public bodies qualify as civil servants is in itself a specialisation, but their own legal status laws contain provisions different from the Kttv. In some important HR issues the public body’s leader has regulatory compentence. Specialisation therefore takes place on several levels and within the framework of the civil service legal relationship, therefore we cannot talk about a sui generis legal relationship. The differentiation, however, can affect important elements of the work contract, such as remuneration or promotion. Another characteristic of the specialisation is that it differentiates between public organisation types.

Based on the Kttv., among the autonomous public bodies we can differentiate offices of public authorities, autonomous public administration bodies and autonomous regulatory organs.

The offices of the autonomous public bodies (the Office of the President of the Republic, the Office of the Constitutional Court, the Office of the Commissioner for Fundamental Rights and the the State Audit Office of Hungary) came under the Kttv. for pragmatic reasons, since they serve public bodies that operate above the separate branches of power or in the legislative branch or related to it, independently from the executive branch and subject to law. Consequently they share the legal status characteristics of these, and therefore they cannot be categorised in the executive branch.80 At the same time they also fulfil public administration tasks (application of law, organisation, management, monitoring and control) during which they exercise state power. It seemed to be a logical solution to include them under the Ktv. at a time when the plan was to make the Ktv. a unified public sector law.81

79 In 2012 – already in the Kttv. – the National Authority for Data Protection and Freedom of Information, the Office of the Commissioner for Fundamental Rights, the Equal Treatment Authority and the Parliamentary Guard, then in 2013 the Hungarian Energy and Public Utility Regulatory Authority and the National Election Office were added. In 2014 the National Memorial Commission was added to this group. GYÖRGY, István: Az autonóm szervek személyi állományának közszolgálati jogviszonyáról, sub-study (manuscript) p. 8-10 80 The research in regards to independence from the executive powers highlights the State Audit Office of Hun- gary: its subordination to the National Assembly of Hungary, the method of electing its president, its report- ing obligation and the way of approving the budget. Ibid. p. 3-14 81 Ibid. p. 5-6

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We can confirm that precisely because they belong to different branches of power these public bodies don’t have an influence on the homogeneity of public administration civil service or the lack thereof, and also for the same reason we cannot examine the application of the unified HR governmental politics in their case, i.e. they have come under examination only for the sake of comprehensiveness.82

Often the principle of economising legislative drafting is also breached, and the different legislations on legal statuses merely repeat some provisions of the Kttv.83

The autonomous public administration bodies (the Public Procurement Authority, the Equal Treatment Authority, the Hungarian Competition Authority, the National Author- ity for Data Protection and Freedom of Information, the National Election Office)84 and the autonomous regulatory bodies come under different discretion. As part of the executive power, the most important legal status issue for them is how their independence from the current government can be ensured. Their autonomy is usually ensured through institutional, professional and HR aspects. The latter includes the unique status of their personnel.

Based on the comparison of Act CLXXXV of 2010 (hereinafter: Mttv.) on the National Media and Infocommunication Authority (hereinafter: NMHH) and Act XXII. of 2013 on the the Hungarian Energy and Public Utility Regulatory Authority (hereinafter: MEKH) we established that there are considerable differences between the civil service legal statuses of civil servants employed at these two institutions that result from a different approach to regulations. While in the case of NMHH the Kttv. is only a background legislation that contains technical provisions, because in most key articles the Mttv. differs from it, in the case of the MEKH civil servants are most often employed based on provisions of the Kttv. The most significant difference is that the NMHH sets its HR policy principles independently.85 This way the Mttv. uniquely “takes the authority out of the HR policy of the government and allows an independent path for this autonomous body.”86 This clearly expresses that the NMHH can diverge in key issues with its unique HR policy from the civil service legal relationship without limitations. We can establish that “the civil service law’s regulatory nature suffers a significant breach here, and it is

82 Ibid. p. 6 83 See Act LXVI of 2011 on the State Audit Office of Hungary, Art. 15 Sect. 2 84 Ksztv. Art. 1.3. 85 The NMHH President also determines the job description system required for the tasks, the required resources and sets the job descriptions in the bylaws that are to be fulfilled with regular work contracts. In his/ her non-transferable powers the President also decides about salary policies, fringe benefits and the civil servant base salary and derogations from this. The NMHH leader can determine a position that requires special expertise, and a personal salary for civil servants who fill several leadership positions, and in the case of termination of the work contract the leader can establish restrictive rules regarding future employment. It is the NMHH President’s competence to determine in the Civil Service Regulation the details of the performance assessment system, the related rewards, recruitment and selection policy, and the planning and execution of continued training programmes, courses and individual development programmes. The NMHH is not required to report data related to public administration personnel activities. [Mttv. 110/A.2-7.] 86 GYÖRGY, István: Az autonóm szervek személyi állományának közszolgálati jogviszonyáról, p. 23

39 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research no exaggeration to state that the regulation of this body moved towards ‘a more private law type’ and dispositive methods.”87

During the research we examined the possibility of a so-called autonomy ranking between the different autonomous bodies that can be used to determine the grounds in terms of legal institutions for the divergence from the general rules of civil service legal relationships and the extent of this divergence in the different autonomous organisation types and groups. The conclusion was that – including the international examples – we cannot always find logical arguments for the status differences.”88

In the case of the public authorities – because they belong to other branches of power – the National Assembly of Hungary can pass a law any time that excludes these authorities from the Kttv., i.e. in theory any special civil service (or under a different title) pragmatics can be created for them.89 Belonging to another branch of power could justify even one radical change that would mean that the Kttv. loses its legal background character, and in the different bodies an independent legal status act would stipulate elements of the civil service pragmatics (and it would most certainly result in parallels).90 Nevertheless, we think that unification attempts and public administration type tasks conducted at the public service offices justify that their legal status – even if not in separate legislation – would be regulated as part of the Kttv. We think there are two possible regulatory methods for this. The first and the simplest solution would be the preservation of the present situation which would mean that the Kttv.’s effect continues to include civil servants employed at public administration offices, unless a separate legal status makes different provisions.91 The second – and mostly formal – solution stems from the principle of the separation of powers, and it would modify only the order of the organisational scope. It would mean that although public administration authorities would not be listed in the Kttv., it would remain effective for them: the special legal status laws would refer to the Kttv., and the Kttv. would have effect only in questions not stipulated by special laws.92

In the case of the other two types it must be first decided whether the autonomous public administration bodies or the independent regulatory bodies should have more autonomy. This requires not only civil service regulation, but a statement regarding the autonomy of the given body type. This question, however, cannot be answered for two reasons. On one hand, the fact that a body is categorised as an autonomous state administration or as an autonomous regulatory body basically depends only on whether or not it should be ensured with the right to create laws. Neither the tasks types to be fulfilled, nor the rights and obligations of its workers, extra obligations or training requirements predestine the

87 PETROVICS, Zoltán: A jogi szabályozás munkacsoport zárótanulmánya (manuscript) p. 36 88 LINDER, Viktória: Egyes független jogállású központi állami szervek személyi állományára vonatkozó jogi sz- abályozás sajátosságai és humánerőforrás gazdálkodásuk jellegzetességei nemzetközi összehasonlításban, sub-study (manuscript) p. 30 89 GYÖRGY, István, DR: Az autonóm szervek személyi állományának közszolgálati jogviszonyáról, p. 28 90 Ibid. p. 32 91 Ibid. p. 30-31 92 Ibid. p. 31-32

40 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research categorising of a public body. The situation is – and it confirms the starting hypothesis of our research – that regarding the legal status of these bodies, no unified conception or unified regulation is apparent. The research also points out that no conclusions can be drawn from the civil servant legal status regulations for the different types of autonomous bodies. It means that if we study the different legal status laws “blind”, i.e. we don’t know into what group the lawmakers categorised the given body, we won’t be able to draw conclusions from elements of the civil service pragmatics in this regard. It seems to us that the drafting of regulations for the different legal institutions is totally unplanned.93

Based on the research we claim that because they belong to the executive branch the autonomous state administration bodies and the autonomous regulatory bodies can be listed in the same group as far as their legal status is concerned. Their relation to the Kttv. in our view greatly differs from the autonomous state authories.

István György made several recommendations depending on whether we accept their status as a central state administration body94 based on Art. 1.3 of Act XLIII of 2010 on the legal status of central state administration bodies, members of the government and state secretaries (hereinafter: Ksztv.). If we consider them central state administration bodies, then the Kttv.’s effect and its regulatory concept regarding autonomous bodies are not consistent. In this case these bodies come under the same treatment as all other central state administration bodies, like the Prime Minister’s Office, the ministries, the government’s office or the central office, therefore special regulation is not justified in their case. This would mean that all the elements of the employee’s legal status should be governed by the Kttv. and provisions not regarding civil servants, but regarding governmental officials should be applied. As István György notes, it would be possible to enforce special aspects resulting from the uniqueness of these bodies in the framework of the Kttv. but by definition it would be stated that they could not shape their HR policy independently. This solution would probably level out the presently rather significant differences which cannot be justified through the tasks and social functions of these bodies.95

If we don’t consider them central state administration bodies, there are several regulatory solutions possible. The first one would settle the legal status of autonomous bodies’ civil servants: in a general section the common rules, and in a separate chapter the special provisions. If we want to emphasise these bodies’ autonomy, their distance from the government, then a separate regulation for their personnel would be justified according to the three solutions described in the case of state authorities. In the first solution the Kttv. would be effective for the autonomous bodies unless otherwise stipulated by law. In the second solution the order of reference would be reversed and the separate laws would point towards the Kttv. as the background legislation. According to the third solution only the special laws would be effective for the autonomous bodies. According to Ist-

93 Ibid. p. 28-29 94 However, we expressed our concern regarding this issue. 95 GYÖRGY, István: Az autonóm szervek személyi állományának közszolgálati jogviszonyáról, substudy (manuscript) p. 32-34

41 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research ván György, the most consistent solution would be if these bodies were removed from the Kttv.’s text, and at the same time their separate legal status laws would refer to the Kttv. as the background legislation. It would signal the independence of these bodies, yet unneces- sary repetitions and parallels could be avoided.96

The authors of this study have a different opinion about the applicability of the alternatives presented. In our view it wouldn’t be advisable to take out the autonomous state administration bodies from the regulatory framework of the Kttv. When we consider ensuring a special legal status to the autonomous central body we have to take into consideration “...the counter-argument which says that a significant increase of the number of bodies would in a sense result in the doubling of the public administration system, because besides the public administration bodies that directly or indirectly belong to the government it would swell the group of bodies lifted out of the governmental channel and it would result in a parallel organisational structure.”97 The number of autonomous bodies after a certain point could “dramatically” reduce the efficient operation of the state administration. It is difficult to draw the line when autonomous bodies coming out of the unified state administration control start posing a threat to efficiency. One thing is sure, that from the perspective of the unified HR governmental policy – a key element of governmental control – the unification of autonomous bodies must be evaluated at the same time as other phenomena pointing to differentiation. This would include the intent for specialisation of NAV’s organisational integration that could result in the appearance of a new sui generis legal status. The number of autonomous bodies is 13, and they have more than 3 000 employees. NAV in itself employs 15 000 people. Altogether almost a quarter of the governmental officials are affected by abandoning the unified governmental HR policy or by differentiation within the governmental HR policy. This added effect could pose a significant threat to the efficiency of HR operations, and through this on the efficiency of the civil service.

Now the special regulations of the autonomous state administration are already divergent in the present form of the Kttv. that was created not on the basis of theoretical considerations. Lifting these bodies from the framework of the Kttv. would ultimately strengthen the “as many bodies, so many solutions” development route. We think that the Magyary Programme hints at an HR policy pointing towards unification, therefore only solutions that preserve the unified framework should be supported. In our view this can be achieved only through differentiation within the framework of the Kttv.

Of course, those responsible for governmental HR policy shall decide from the list of proposed solutions. It is important to stress that if either solution is chosen, in view of the authors the supervision and reduction or proportional adjustment of significant legal status differences – that cannot be justified on a professional basis – should be carried out

96 Ibid. p. 35-36 97 MOLNÁR, Miklós: A szabályozó közigazgatási hatóságokról, Magyar Közigazgatás 2002. p. 649.

42 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research as soon as possible.98 The authors also consider it important that the lawmakers should provide references regarding the direction and the extent of divergence.

As a result of the research it can be concluded that the present legislation is not consistent and cannot be consistent, because Art. 2 of the Kttv. authorises special legislation to determine the legal status of the autonomous bodies without setting divergence limits to it. For autonomous bodies, provisions of the Kttv. shall be applied only if there is no differing provision in the law – contrary to previous Ktv. provisions that explicitly defined the legal institutions where no diversions at all could be made99 – and the effective regulation now sets no limitation for the legislation.100 Consequently, in the laws governing the legal status of autonomous bodies any issue can be stipulated irrespective of its direction and extent, and therefore it is possible that “at the autonomous bodies totally new pragmatics would be created with the absolute exclusion of the Kttv.”101 The examination of the law on the legal status of autonomous bodies confirmed that the principles for regulating divergence are missing. Based on this we can conclude that the direction and extent of the differences are primarily subject to the advocacy capacity and will of the given body, and are entrusted to the subjective discretion – that seemingly lacks rationale – of the lawmakers at the time.102

The authors have sought to put forward recommendations regarding what elements and in what realm of civil service pragmatics the creation of different legislation for the civil service employees of autonomous bodies can be recommended.103

The first recommendation is about appointments, and it suggests the introduction of an obligatory career system for employees of autonomous bodies. This is supported not only by the high requirements for the candidates, but also because these autonomous bodies should remain distant and unaffected from politics. The authors deem it important that – because of the special nature of their activity – replacement should not be applied for civil service officers who work at autonomous bodies. Even though provisions of the Kttv. guarantee that the different bodies cooperate in the areas of training and further development, there could be special requirements and methods (e.g. examination forms) that make different regulations necessary. For rules regarding conflicts of interest the justified variations should be maintained or created.

The rules on promotion in the Kttv. could assist the career of employees at autonomous bodies, yet the use of different ranks/categories or special, possibly even historic titles could be justified. The difference in qualification and performance assessment could be justified, but only if it can be proven that the job description based evaluation system cannot be applied without modifications. In conclusion, the authors don’t consider it justified

98 GYÖRGY, István: Az autonóm szervek személyi állományának közszolgálati jogviszonyáról, p. 36 99 Ktv. 1.2. 100 GYÖRGY, István: Az autonóm szervek személyi állományának közszolgálati jogviszonyáról, p. 11 101 Ibid. p. 11 102 Ibid. p. 12 103 The objective wasn’t to create the regulation details, but to determine the most important areas to touch upon.

43 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research to create an independent salary policy system and to determine a different salary base at these bodies, however, a revision of the salary supplement system is recommended as well as an analysis to determine whether the place of these bodies in the system should be supervised or not (e.g. to determine higher salary supplements.) The authors think that it is viable that salaries would be determined on a personal basis at these bodies, based on clearly defined pattern.104

The different legal status laws tend to be more favourable regarding the salary system. The rationale is that these experts are highly educated and they have high exposure on the labour market.105 This regulatory solution carries a judgement in itself and suggests – in a simplified manner – that governmental officials working in ministries cannot be considered as qualified as civil servants working at the autonomous bodies.106 This a threat referred to in international literature: privileges guaranteed at some autonomous bodies can distort the incentive system of the public sector; and the unequal incentives of the public sector can generate financial and employment problems, can make recruitment of talented workers to other, non-privileged bodies more difficult, and they can cause dissatisfaction and lack of motivation in the workforce at non-autonomous bodies. 107

5.2. Integrating different legal statuses: at the dawn of an independent mixed legal status

The integration of the different legal status bodies shows best how the organisation and its defects influence the personnel. In the case of NAV not only evolution towards an independent, different legal regulation can be shown, but also a relationship between the organisational integration108 and the legal status change also. The consequences of organisational transformation are visible in the regulation of the personnel’s legal status.

The personnel of NAV primarily consists of two employment groups: governmental officials and official members of finance guards in service status, i.e. within one organisation there are civilian and law enforcement legal statuses present at the same time. The NAV therefore could be considered a mixed legal status body, not due to its mixed activity profile, but primarily because of its underlying organisational integration. The example of

104 PETROVICS, Zoltán: A jogi szabályozás munkacsoport zárótanulmánya (manuscript) p. 43 105 Cf. LINDER, Viktória: Egyes független jogállású központi állami szervek személyi állományára vonatkozó jogi szabályozás sajátosságai és humánerőforrás gazdálkodásuk jellegzetességei nemzetközi összehasonlításban, substudy (manuscript) p. 31-32 Linder remarks that similar arguments would often have a raison d’etre in any other parts of the public sector (for example among policemen, judges or municipal clerks). 106 GYÖRGY, István: Az autonóm szervek személyi állományának közszolgálati jogviszonyáról, p. 34 107 LAKING, Rob: Agencies: their Benefits and Risks, OECD Journal on Budgeting. Volume 4. Number 4. OECD, 2005. Quoted by LINDER, Viktória: Egyes független jogállású központi állami szervek személyi állományára vonatkozó jogi szabályozás sajátosságai és humánerőforrás gazdálkodásuk jellegzetességei nemzetközi összehasonlításban, substudy (manuscript) p. 33 108 NAV was created through the merger of the Tax and Financial Control Administration (APEH) and the Hun- garian Customs and Finance Guard (VP) on 1 January 2011.

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NAV is unique also because the organisational changes are not simply differentiated, but in our view – they point to the formation of a new, independent and special (mixed) legal status.109

Having examined the evolution of the NAV tv. the following conclusions can be drawn:

Contrary to unification intentions set out in the Magyary Programme, the legal regulation governing governmental officials employed by the NAV set out on a path of separation, and in this way the objectives of the Magyary Programme were subordinated to specific interests and thus became secondary.110 In her study Kamilla Bérces points out that despite all this, NAV could have a pioneering role since the “prototype” of the unification of the two service relationships (Hszt., Kttv.) could become a model for the approximation of the two laws. Even though it focuses only on one organisation, this unification would have a wider effect as well.111

Although at the creation of NAV, in order to align with the organisational integration, the lawmakers didn’t yet opt for an independent status law, but aimed at harmonising the legal status issues in line with the new organisational situation. Later “the conceptional interest of the legislation to move towards a status law” became increasingly obvious.112 This was seen because as a result of the considerable number of modifications and addi- tions113 to the provisions governing personnel in the NAV tv., in two years’ time a unique public service pragmatics was developed that is significantly different from both the Kttv. and the Hszt.114

Although the content extension of the NAV tv. originated from the need to bridge the differences in the basic legislations (Kttv. Hszt.), the modifications cannot be considered 109 Since NAV – unlike its legal predecessor the Hungarian Customs and Finance Guard – is not a law enforcement body, but is under governmental control and under the oversight of the minister responsible for taxa- tion, it is a body of national jurisdiction that fulfils state administration and armed law enforcement tasks (central state administration body, governmental office) [Ksztv. 1.2. and 1.4.]. This could have meant a value choice regarding employment. Yet, the duality of the governmental officials and official members of finance guards in service status remained, which is justified by the fact that besides civilian public administration tasks the NAV fulfils tasks where state force-monopoly is applied and where there is a danger for physical harm or harm to life as well. It shall be noted that pursuant to Hszt. 1.1. the NAV is an armed body, but is not listed among the law enforcement bodies. Dr. Bérces, Kamilla: A Nemzeti Adó- és Vámhivatal munkajogi- humánpolitikai vizsgálata a 2011-2013 közötti időszakban, sub-study (manuscript) p. 12 110 Ibid. p. 47-49 111 Ibid. p. 85 112 Ibid. p. 87 113 The research analysed Act CXXII of 2010 on the National Tax and Customs Administration that came into force on 1 January 2011, along with its amendments of 1 January, 1 March, 1 September of 2012, 1 January 2013 and 1 January 2014, the implementing decrees, and the Employment Code (see NAV presidential regulation 2092 of 2013 on the Employment Code of the National Tax and Customs Administration), Ibid. 5-11., p. 33-49 114 The first four amendments to the NAV tv. supplemented its second chapter on personnel, which originally contained twenty paragraphs, with 119 sections, and the latest amendment contains more than fifty sections affecting civil service law. (At the time this sub-study was prepared, Act CC of 2013 on the amendments to Act CXXII of 2010 on the National Tax and Customs Administration had not yet been published.) See Ibid.

45 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research consistent in all cases since they differed in issues where it wasn’t necessarily justified115 “and NAV was excluded from the unification process despite the fact that the relevant unified regulation was already available both for the civilian and official members, such as classification and performance assessment”.116

In a paradoxical way, the differentiation of the NAV tv. within the civil service law was boosted by the unification inside the integrated organisation, which confirms previous presuppositions that differentiation and unification are both present and influential in the system. At the same time, in the case of some modifications, divergence from the Kttv. cannot be justified with the approach of the two legal status types, it was much more “an enforcement of internal organisational, control and budgetary interests”.117

Besides the fact that it differentiates within public service law, the NAV tv. has another unique feature, namely that in important issues it takes the NAV out of the framework of the unified governmental HR policy. The intentions to create an independent statutory law were coupled with the process of becoming independent, a characteristic of autonomous bodies in the field of HR policy. Although the NAV is a governmental office and as such falls under the control of the government, for questions of performance assessment, classification, further development and qualifications it is not under the unified state administration regulation created by the government.

The Employment Regulation of the NAV118 contains not only executive and technical regulations – as a traditional civil service regulation does – but it also prescribes rights and obligations for the personnel,119 i.e. in some legal status issues it is statutory. In its regulatory power the president sets the organisational assessment and incentive system, the classification and individual performance system, and determines the detailed rules of cafeteria fringe benefits, determines the languages that provide eligibility for foreign language allowances and the job descriptions, and the NAV president also issues relevant instructions and internal regulations. Therefore the president has legal status for shaping rights that otherwise would– partly by tradition – belong to legislative powers.120

The unification of the two service areas – despite the significant steps made towards an independent status law – is making slow progress, but without doubt the modifications resulted in the approximation of the legal statuses. This is supported by the fact that the

115 Ibid. p. 89 For example regarding the extent of freedom. 116 Ibid. p. 89 117 Ibid. p. 40-45 118 See the NAV president regulation nr. 2092 of 2013 on the Employment Regulation of the National Tax and Customs Administration. Bérces, Kamilla, Dr.: A Nemzeti Adó- és Vámhivatal munkajogi-humánpolitikai vizsgálata a 2011-2013 közötti időszakban, sub-study (manuscript) p. 10-11 119 See for example the standards applicable for the framework of the agreement regarding employee salary, the salary of administrators, the transfer of salary advances, reimbursements, other allowances, working hours rules, extraordinary working hours, acknowledgements, internal training programmes, study contracts, etc. Ibid. p. 10 120 Ibid. p. 7 and 18

46 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research mixed nature of the personnel is still reflected in the fulfilment of the HR functions. In the Office Centre two organisational HR units, the Civil Servants HR Management Director- ate and the Finance Guards HR Management Directorate fulfil the tasks related to the two employee groups. Their operation is practically independent from one another, they fulfil the HR functions autonomously, there is only limited overlapping between their activities and the tasks performed together cover only acknowledgements. This is connected to former traditions121, but for us it mostly proves that there is a stark separation line between the two professional systems. This indicates that regulation per se doesn’t solve organisational and operational problems, other ex juris factors must be taken into consideration, such as the long-term process of creating a unified organisational culture. This observation is confirmed by the international experience examined during the research.122 “The establishment of cooperation between officers from different organisational cultures and different value systems”123, as well as the development of a new, common organisational culture may take a long time, but without doubt it is not only the question of internal regulations. The international experience shows that in the organisations affected by the integration process the transfer of employees and harmonising of distant work and organisational cultures represented a challenge. The creation of a common organisational culture requires time, a gradual approach and constant effort.124

The authors think that unification could have been better assisted if instead of the creation of independent legal regulations or in addition to this more emphasis had been placed in making these organisations more civilian. The research established that in customs the service status is still predominant125, and no comprehensive “civilian- isation” – based on the review of all employees’ tasks – has been done despite the fact that in the functional area where employees have a service status and official rank

121 The HR policy systems of APEH and VP at the time of the merger were very different: at the tax authority (with a high number of employees) there was strong central governance, and the county directorates operated their independent HR departments. The customs authority had a lower number of employees, and the central office had more power over the entire organisation; at the local level there were only administrators for the executive and operative tasks. When NAV was created this duality remained, and the organisational culture of the predecessors were kept. 122 It was only recently that in Hungary, and in other European countries, the public administration organisations responsible for tax collection were merged. This is why the research was aimed at exploring the expe- riences of these processes as well. Based on a World Bank study (The World Bank: Integration of Revenue Administration. A Comparative Study of International Experience. 2012.) DR. Viktória LINDER examined the integration processes in Denmark, Sweden, Latvia, Romania, Bulgaria and the United Kingdom. LINDER. Viktória: A hivatásos és a civil közigazgatási személyi állomány foglalkoztatási viszonyai nemzetközi össze- hasonlításban, sub-study (manuscript) p. 24-27 123 Ibid. p. 22 See e.g. the example of Sweden where there problems between customs officers and other officials responsible for tax collection arose from different attitudes and issues related to self-evaluation. Ibid. p. 24 124 Ibid. p. 23, p. 36 In the United Kingdom this is complemented with flexible work solutions, a high standard of health-employment services – and as part of this – work psychology, mental and welfare consultancy. Ibid. p. 27 125 The government decree no. 96 of 20 December 2012 on the qualification requirements of governmental officials and finance guards employed by the National Tax and Customs Administration stipulates the positions that can be filled only by professionals; and between the professional and civilian positions there is no mobility, except with special presidential permission [NAV tv. 17.2.]. Bérces, Kamilla: A Nemzeti Adó- és Vám- hivatal munkajogi-humánpolitikai vizsgálata a 2011-2013 közötti időszakban, sub-study (manuscript) p. 86

47 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research there would be room to make the organisation more civilian. “In the long run the need to make the organisation more homogeneous requires” that decision makers would consider this option too.126 The planned introduction of a job description system could help this process. Nevertheless, the delay in making the organisation more civilian, and the delay in the adjustment of salaries according to the job description evaluation can also cause salary tensions in the organisation. The former because there is no distinction, i.e. the foundation for the principle of higher remuneration is lacking; and the second because it would stop differences resulting from the previous point that could at times result in salary reductions.

Regarding unification it must also be indicated that in the present legislative environment mobility between the two service areas is rather difficult, therefore it would be good to create a regulation that could make legal relationship changes easier, e.g. with the creation of a separate legal institution (for example the “transformation of legal relationships”).127

Then there is the question whether the fact that NAV is becoming increasingly independent from a labour law point of view will lead to the creation of a new civil service legal status or not. Considering the pace of legislation so far we agree that this cannot be excluded,128 but the creation of a new sui generis legal status is not justified.129 Here we have a unique form of the mixed legal status, which has a somewhat “integration-centred” approach in that it tries to combine the regulations for two different legal statuses in one organisation, explicitly or implicitly with the intention to somehow integrate the two legal statuses into a new legal status.

Kamilla Bérces points to the threat that in the long run NAV’s example could leave its mark on efforts that aim at unifying public service, and could encourage other organisations to come under special evaluation. As far as the author is concerned NAV’s move towards independence, together with the autonomous bodies, could pose a serious threat not only to the unified HR operation, but also to the plan of a more unified civil service system laid out in the Magyary Programme.

5.3. Mixed profile public administration bodies: organisational conglomerate

In the case of mixed profile state administration bodies the co-existence of different legal statuses – typically governmental officials and public workers – results in mixed legal statuses within one organisation. We can also mention here the situation where besides the legal status of official members of the armed forces, there is a public worker

126 Ibid. p. 87 127 Ibid. p. 89-90 128 PETROVICS, Zoltán: A jogi szabályozás munkacsoport zárótanulmánya 129 Cf. BOGNÁR, László: A rendvédelmi szervek hivatásos állománya szolgálati viszonyát szabályozó normák a közszolgálati jogviszonyok rendszerében, sub-study (manuscript) p. 28-29

48 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research legal status.130 The situation can occur that employment is in the form of a regular work contract or classical civil law legal relationship – contract for services or supply con- tract131 – or in the form of a public employee132 at a public administration body,133 but these issues are not discussed here, since they are not connected to the mixed profile of the organisation, but much more with the issue of contractual employment.

We have examined the different types of legal relationships and their relation to one another through the example of the National Public Health and Medical Officer Service (Service).

The National Public Health and Medical Officer Service (Service) The examination of this Service is special because it is one of only few examples of the co-employment of governmental officials and public workers.134 Initially the Service was established to be a central office that functioned as a unified organisation with an independent legal entity, and the central and local organisational levels were created within its framework.135 Its central body was the National Public Health and Medical Officer Service (OTH) and the national institutes, but the Ktv. was effective only for the OTH. Later on when the decision-makers realised that the Service includes mixed profile organisations (with offical and non official authority) the independent legal status of the Service was terminated and restructured in a way that it would provide the framework necessary only for the management of the different organisations and institutes. Consequently, the formerly unified Service was transformed into a conglomerate of several organisations.136 In this structure the Service isn’t an independent legal entity any more, yet the OTH and the national institutes qualify as budgetary authorities. The OTH employs governmental officials, governmental administrators, regular employees, and the national institutes employ public workers. As a central state administration body the OTH fulfils authority tasks and accordingly, its personnel are governmental officials. At the national institutes the employees are public workers.

130 There are several law enforcement bodies (e.g. police and prison services) that can be considered of a mixed legal status, since besides the official members of the law enforcement they also employ civilian public workers. 131 Kttv. Art. 8.2. 132 Act CVI of 2011 133 Kttv. Art. 8.2. and 8.3. 134 As an example we could mention the Klebelsberg Institution Maintenance Centre. 135 Act XI of 1991 on the National Public Health and Medical Officer Service (hereinafter ÁNTSZ tv.) Art. 1.3. The Service was led by the Chief Medical Officer who fulfilled his/her services under the direct supervision of the Minister of Welfare. (ÁNTSZ tv. Art. 7.1.) 136 Gov. decree 323 of 27 Dec 2010 on the National Public Health and Medical Officer Service, the fulfilment of welfare administration tasks and the appointment of the state medical administration body Art 1.1. FICZERE, Lajos – FORGÁCS, Imre (editors): Magyar közigazgatási jog, Budapest, Osiris 2001. p. 257 Quoted by HORVÁTH, Attila: A vegyes jogállás és a jogviszonyváltás problémája az ÁNTSZ, az NRSZH és a GYEMSZI példáján, sub- study (manuscript) p. 9 footnote 11

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In the organisational conglomerate of the Service we can find state administration and other budgetary authorities mixed. The national institutes belong to the latter category and they fulfil the Service’s professional-methodological, scientific research, training, continued training, registration and coordination tasks, and supervise the professional and health care services.137 In the activity of the institutes, the public institutional (e.g. professional-methodological, scientific research) and the authoritative (professional and health care supervision) tasks – these last two at times imply official legal powers – makes their profile mixed.138 They employ public workers who can fulfil official type or clearly official tasks, but these don’t seem to qualify as “worthy”. In their case the principle of separation along the exercise of official power is not valid.139 The question arises: if a body has certain official powers, but its character is primarily not official, does that mean that it still has the right to employ people as public workers? What “quantity” of official power can turn the public worker status into a civil servant one?140

The research confirmed that the answer is much more based on practicalities than on principles. Official power as a distinctive characteristic has become less significant and the distinction is rather relative since it is primarily based on practicalities that usually favour the spread of the mixed legal status. In this case the practical approach means that the boundaries of the different legal statuses are adjusted to the organisational separation within the organisational conglomerate that makes its operation easier. Another practical aspect is that although the Kttv. offers much higher salaries than Act XXXIII. of 1992 on the legal status of the public workers (hereinafter: Kjt.),141 this is softened by the “open from above” salary system of the Kjt. Employers make use of this opportunity as a result of which public worker salaries show a “rather wide range”. This applies also for public workers working at different institutes in an identical or very similar position.142 In our view the differentiation of salaries can be ascribed less to the tasks and job descriptions, and much more to the ability of these bodies to enforce their interests,143 and to the special governmental attention given to that field.

137 Gov. decree 323 of 27 Dec 2010 Art. 9.1. 138 HORVÁTH, Attila: A vegyes jogállás és a jogviszonyváltás problémája az ÁNTSZ, az NRSZH és a GYEMSZI pél- dáján, sub-study (manuscript) p. 16-17, Gov. decree 323 of 27 Dec 2010 Art. 15.1., 15.3., 16.1., 16.2. 25 (a) and (ab). The granting of authoritative powers to a public legal status body that employs public workers is possible pursuant to Act CXL of 2004 on the general rules of official public administration procedures and services 12.3. (e), and it is not without precedent that non-public administration bodies are granted authorisation to exercise authoritative powers. 139 PETROVICS, Zoltán: A JOGI SZABÁLYOZÁS MUNKACSOPORT ZÁRÓTANULMÁNYA (MANUSCRIPT) P. 48 140 Ibid. 141 At the ÁNTSZ a governmental official with university degree, after 20 years of service and with an intermediate English language exam type C receives HUF 294 500, while the guaranteed salary of a public worker with the same characteristics is HUF 172 900. HORVÁTH, Attila: A vegyes jogállás és a jogviszonyváltás problémája az ÁNTSZ, az NRSZH és a GYEMSZI példáján, p. 22 142 Ibid. p. 23-24 The research highlights that recently the salary differences were further deepened with Gov- ernmental decree 256 of 5 July 2013 on the salary increases of health care workers and on the support available for the salaries. According to this not all public workers of the national institutes were eligible for a salary increase. Ibid. p. 27 footnote 38 143 Some institutes had an independent management in the past and therefore they managed to provide higher salaries to employees and could “maintain” this even after institutional integration. Ibid. p. 24

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5.4. Merging governmental bodies with different statuses: legal relationship changes

The integration of different legal status bodies into a public administration body means a legal relationship change for the personnel, which in some cases could result in situations where the actual job description is not in line with the de jure legal contract, e.g. a former public worker performs the same work, in the same location, in an unchanged internal organisational structure as a governmental official. This situation is a de facto, i.e. “latent mixed legal status”.

The National Institute for Quality and Organizational Development in Healthcare and Medi- cines (GYEMSZI) was created by the merger of several budgetary institutions.144 GYEMSZI as the central office has duties and powers – most of which are not related to public authority – over these institutions, and therefore the unchanged job descriptions of former public workers now cover the performance of public worker tasks in a governmental official status. In this case we have de jure governmental officials who function de facto in a public worker “legal status”. Since the duties and powers of GYEMSZI were gradually extended by new authoritative competences, the number of former service type positions is expected to drop, and with the public authority tasks new mixed profile positions are created.

During the change in legal relationships the executors faced problems that arise from the salary differences between public workers and governmental officials. The differences pointed in two directions. Sometimes the executors had to find a solution for the preservation of the higher public worker salary,145 and in other instances they had to find ways to increase lower salaries to become level with the average. In the first case, the Kttv. tools that allow for salary supplements were widely used,146 but there were examples when regular work contracts were made in order to ensure more flexible remuneration. At the same time lower salaries were adjusted, and therefore for the majority of the employees the change in legal relationship resulted in a salary increase,147 even though the base salary was set at 80% for some employees so that the positive changes in the salary differences would be covered financially.148

The aforementioned changes point to several connection points. If we accept that higher public worker salaries reflect the labour market value of the given position or activity, then we can establish that the linked salary system of the Kttv. – lacking job descrip-

144 See in detail Act 59 of 12 April 2011 on the National Institute for Quality and Organizational Development in Healthcare and Medicines. The legal predecessors of GYEMSZI are the National Institute for Strategic Healthcare Research, the Institute for Basic and Continuing Education of Healthcare Workers, the Nation- al Institute of Pharmacy, the National Centre for Healthcare Auditing and Inspection and the Institute for Healthcare Quality Improvement and Hospital Engineering. The GYEMSZI was created on 1 May 2011. 145 At the National Institute of Pharmacy, public worker salaries before the legal status change were high compared with other bodies, so this is where the legal status change caused the most problems. 146 The base salary diversion, the introduction of leadership positions (primarily new deputy department leaders) and title bestowal as well as target benefits were used. 147 30% of governmental officials or employees in non-leadership positions, and 43% of governmental officials in leadership positions received a salary increase. HORVÁTH, Attila: A vegyes jogállás és a jogviszonyváltás pro- blémája az ÁNTSZ, az NRSZH és a GYEMSZI példáján, p. 37, footnote 64 148 Ibid. p. 37

51 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research tion based remuneration tools – is not capable of recognising it. Instead, the employer is confined to use other tools that don’t use job description based remuneration, but serve other purposes, e.g. the acknowledgement of better performance. Moreover, some tools directly damage the organisational efficiency, like the introduction of new leadership levels. The change in legal relationships made the application of these tools dysfunctional.

5.5. Issues related to regular employment

As we have noted earlier, compared with previous legislation the Kttv. governed the conditions of employment more directly and restrictively. At the same time, if the required conditions were met it allowed for a wide application of the law. We also mentioned that it cannot be considered exceptional, because it is in accordance with the international practice, yet we listed the possible threats also. The authors pointed out that although the ratio of regular work contracts is high, it doesn’t exceed the percentage in similar countries.

Our research confirmed that these bodies employ regular employees in a quite significant percentage. This figure at the OTH exceeds the Hungarian average (21%). The primary explanation for this is a high percentage of manual workers perform technical maintenance tasks not only for their own organisation, but also for all the national institutions, i.e. their activity goes beyond the organisational framework.149

In reality it is not the manual workers who pose a problem, but the personnel that based on their job description should be employed as governmental officials or governmental administrators. The lack of such employment could be explained in the following manner: the governmental official ranking and remuneration in certain positions – especially in the “white collar-functionary” positions150 – doesn’t provide a competitive salary, and it doesn’t reward a higher eduction degree with a higher salary, therefore people with these qualifications would be ranked into category II according to the Kttv.151

Our examination conducted at the NRSZH revealed almost all problems were related to contractual employment. Until 2011 the administrative tasks related to different EU projects152 were fulfilled by the governmental officials of the body, afterwards these tasks were partially taken over by around 500 employees with regular work contracts. This 149 The question arises if this task belonged to the different institutions would that mean that these employees become public workers? This situation clearly shows how relative the dividing line is. PETROVICS, Zoltán: A JOGI SZABÁLYOZÁS MUNKACSOPORT ZÁRÓTANULMÁNYA (MANUSCRIPT) P. 50 150 For example IT professionals, secretaries, construction officers, investment experts, investment group leaders, financial, business, insurance, labour and fire safety administrators. 151 As Attila HORVÁTH notes – in the case of chartered accountants, people with a higher educational degree in finance and accounting or public administration – there is a civil service regulation that allows a qualification allowance to be paid, however, it is relatively low, only 40% if the base salary. Gov. Decree 249 of 31 August 2012 2.4. (c) Ibid. p. 12, footnote 15 152 The NRSZH during the time of the research participated in 7 EU projects: SoROP 1.1.1-12/1, EAOP-1.1.13.- 2012-2012-0001, ÁROP-1.A.4-2012-2012-0014, SoROP 5.4.8, SoROP 5.5.7, TIOP 3.2.2, CHOP 4.1.2/B (ld. http://nrszh.kormany.hu/projektek, Downloaded: 30 November 2013).

52 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research resulted in great salary tensions. People employed as employees receive a significantly higher (approx. HUF 100 000 more, in gross value) remuneration than governmental officials working in similar positions. The majority of project statuses are filled by young employees with a secondary education degree who would be ranked only in category II if they were governmental officials. This creates not only salary tensions within the organisation, but a “drain effect” also, since some governmental officials opt for the project administrator status because of the higher salary and give up their appointment as a governmental official. In their case remuneration has a bigger influence than the job security that a governmental service legal status provides, even if the work contract is only for a limited time.153

The connections revealed can help us understand some personnel development trends too. The percentage of officials with a secondary education degree in category II decreased by 14.68% between 2010 and 2013.154 This can be linked to how the qualification system works: the majority of positions can be filled by category I and II officials as well, therefore the bodies opt for civil servants with a college or university degree. At the same time this decrease can be explained by the salary tensions related to category rankings. People with a secondary education or higher education – in state administration their ratio is only 3%155 – are employed as regular employees because of their low salary ranking, i.e. the rigidity of the structure shifts the “parties” towards work contracts, because otherwise the bodies wouldn’t be able to meet labour market expectations. The same underlying reasons could be behind the dramatic drop in the number of administrators, besides the facts that positions have undergone immense changes in recent years and a portion of them was merged into differently ranked administrator positions.

5.6. HR implications of mixed statuses

One of the influencing factors of public service is the expectations of the clients - the members of the personnel. On one hand they are the ones who use the HR services, and on the other hand they have to perform their obligations as set out in their contracts. The personnel are not unified though, and as we have described, the employees can have different legal statuses and can be grouped on the basis of demography. The different employee “[...] groups (men – women, the different generations, leaders – subordinates, etc.) can express different interests regarding income distribution (economic special interests), status within the organisation, acknowledgement (psychological special interests), obligations and rights, as well as the issue of work and private life (political special interests).”156 “Group creation” based on the legal status creates probably

153 Moreover, there is divergence because of the fundamental differences of the two statuses in the issues of work organisation and responsibilities, not to mention the fact that the functional organisational units must serve the nearly twice as large number of personnel without changes in their staff. HORVÁTH, Attila: A vegyes jogállás és a jogviszonyváltás problémája az ÁNTSZ, az NRSZH és a GYEMSZI példáján, p. 29 154 Source: Central Statistical Data Collection (Közszolgálati Statisztikai Adatgyűjtés, hereinafter: KSA) 155 SZAKÁCS, Gábor, DR.: Stratégiai alapú, integrált emberi erőforrás gazdálkodás a közszolgálatban. „ KÖZSZOLGÁLATI HUMÁN TÜKÖR 2013” (sectoral summary study), p. 56 156 Ibid. p. 27

53 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research the sharpest line regarding economic interest in income distribution, since it makes a normative and explicit difference, for example in remuneration and salaries. This can result in conflicts of interest, can adversely affect the atmosphere in the workplace and weaken work motivation.

At organisations where employees with different legal statuses work together, “[…] we can recognise signs that are characteristic of “majority and minority” social groups. People who belong to the majority e.g. the official members of the law enforcement or defence forces, in public administration the governmental officials – by their position and salary – can consider themselves of a higher “caste”, and they do so, compared with employees of other legal statuses, e.g. civil servants, public workers or regular employees. This situation poses a seemingly unresolvable issue not only for the leaders, but for all affected co-workers as well. The situation is particularly critical if the official member, the governmental official, and the public worker receive significantly different salaries or fringe benefits for performing the same task.”157

Where there is a complex web of different interests, the leadership must place special emphasis on the integration of the different interests instead of trying to adapt to the situation by taking into consideration the pressure from the environment.158 This can be successful only where “[…] instead of the traditional bureaucratic, i.e. command based operation, the parties start to focus on finding real and logical solutions to the problems.”159

5.7. Concentration of personnel

The influencing effect of the organisation and the task system can be manifested not only in the legal regulation of public service, but also in its operations, especially if changes that occurred in the last few years are taken into consideration. The authors believe that the integration of state administration resulted in a high concentration of the personnel.160 The number of public administration bodies between 2010 and 2013 decreased by a third. Even though the process had already started in 2008, the biggest change occurred in 2013 when the number of state administration bodies was halved.

157 Ibid. p. 29 158 BAKACSI-BOKOR-CSÁSZÁR-GELEI-KOVÁTS-TAKÁCS: Stratégiai emberi erőforrás menedzsment, Budapest, KJK KERSZÖV, 2000. p. 61-62 Quoted by DR. SZAKÁCS, Gábor: Stratégiai alapú, integrált emberi erőforrás gazdál- kodás a közszolgálatban. „KÖZSZOLGÁLATI HUMÁN TÜKÖR 2013”(sectoral summary study), p. 26. 159 SZAKÁCS, Gábor, DR.: Stratégiai alapú, integrált emberi erőforrás gazdálkodás a közszolgálatban. „KÖZ SZOLGÁLATI HUMÁN TÜKÖR 2013”(sectoral summary study), p. 26-27 160 BALÁZS, DR.: c.f. footnote 20, p. 10

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Number of public administration bodies in 2010 and 2013 2 500 2 370

2 000

1 558 1 500

1 000

500

1 922436 12 1 329 218 11 0 2010 2013 Total no. of public administration bodies No. of local municipal authorities No. of state administration bodies No. of other public authorities Source: KSA / Graphic: the author

Organisational changes

From the changes affecting the state administration organisational system, the creation of a top ministry model, the merger of state administration bodies engaged in similar activities and the integration of regional state administration bodies into county (or metropolitan) government offices should be highlighted.161 different sectorial management bodies were integrated into the organisational framework of government offices (e.g. the judicial services, the Forestry Directorate, the Land Registry Office, the Employment Centre and the Hungarian Authority for Consumer Protec- tion), and, within the organisational framework of the government offices, into the district authorities also. Included among the organisational changes we can list is the creation of the public administration bodies that are responsible for the maintenance of these organisations. By the creation of GYEMSZI as a central office, 66 county based institutions and (business) companies fulfilling health care functions were integrated into a common organisational framework under the name of municipal budgetary consolidation.162 The management structure of the local municipalities was greatly transformed by the abolition of local clerks and the transfer of their duties to the new common municipal offices.

161 Gov. decree 288 of 21 Dec 2010 162 Gov. decree 59 of 12 April 2011

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While in 2010 the average number of employees per organisation was 47.2 in 2013 this figure increased to 71.6. This means that the personnel concentration increased by more than 50%. The change is even more significant in the state administration where the average number of employees per organisation grew by 231%. It is clear that in the increase of concentration the rising number of organisations with 1000 to 2000 employees played an important role.

Public administration bodies by personnel categories in 2010 and 2013 (no.)

140 131 2010 120 2013 100 89 80 77 62 60 46 35 40 32 28 24 21 24 24 26 18 16 20 9 1 3 0 1–10 11–20 21–50 51–100 101–300 301–500 501–1000 1001–2000 2001– Personnel categories (persons) Source: KSA / Graphic: the author

While in 2010, along with a much more balanced personnel distribution, the highest percentage of governmental officials (24.25%) was employed by organisations with a personnel number between 500 and 1000, in 2012 the weight shifted towards organisations with a personnel number between 1000 and 2000, which now employ 43.8% of governmental officials.

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The ratio between the of public administration bodies and the size of their personnel in 2010 and 2013 (%) 45% 43.08% 40% 35% 30% 24.25% 25% 20% 15% 11.50% 10% 5.45% 5% 0% 1–10 11–20 21–50 51–100 101–300 301–500 501–1000 1001–2000 2001– Personnel categories (persons) Ratio of public administration bodies -2010 Ratio of public administration bodies - 2013 Personnel ratio - 2010 Personnel ratio - 2013

Source: KSA / Graphic: the author

At the same time the change at local municipal bodies is less then 5%.163 The different level of concentration reflects that in state administration the personnel followed not only the merger of organisations, but the transfer of municipal tasks to state administration authorities also.

The structural transformation affected even the system of financing. While in the public sector – in the wider sense – the salary financing to GDP ratio in 2011 was almost totally balanced between the central and the municipal managements, in 2013 the proportion of the central management to the municipal management increased by more than threefold. At the same time, despite this the reorganisation of tasks and the personnel, the proportions of the central and local public administrations showed practically no changes.164 The reason for this is that the GDP growth countered the central Kttv. personnel increase

163 Source: KSA 164 The composition of the increase of close to 250 000 personnel in the central subsystem is made up of the following: 120-125 000 teachers, 10-12 000 social workers, a few thousand in inpatient care, more than 10 000 volunteer firemen, 12 000 from municipalities to government offices, 15-20 000 surplus employees from restructuring of other background organisations. Besides this, many tasks that were performed outside the public sector were now transferred to the public authorities. The formation of new statuses indicates a close to 15 000 increase in the total number of employees. We can witness a significant shift in the proportions between the salaries of the two subsystems. The Kttv. central subsystem’s ratio to the GDP didn’t change, because the preliminary data for 2013 shows that the GDP increased by HUF 1568bn (by comparison, the total personnel costs of public administration in 2013 amounted to HUF 1986bn). In practice the GDP growth fully compensated for the central Kttv. personnel increase (at municipalities the personnel decrease and the GDP growth together indicate a 0.1% decline). This is supported by the fact that the GDP growth in itself resulted in a 0.5 percentage point financing rate

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(at municipalities the personnel decrease and the GDP growth together indicate a 0.1% decline). This shows that a close to 1 percentage point GDP growth equals a 0.5 percentage point financing rate decrease in public administration.165

Table 1: The public sector personnel costs budget in % of the GDP in 2011 [GDP HUF 27,635.4 bn – 2011, factual data]

Subsystem Central Municipal Total Total no of emloyees 272 691 483 646 756 337 Personal costs TOTAL (in HUF bn) 1 014.4 994.9 2 009.3 Personnel costs in % ot the GDP 3.7% 3.6% 7.3% No. of employees under the Kttv. 68 160 42 360 110 520 Regular salary of employeer in the Kttv. 235.4 113.3 348.7 (in HUF bn) Regular personnel costs of employees in 0.9% 0.4% 1.3% the Kttv. in % of the GDP

Source: NGM calculation

Table 2: The public sector personnel costs budget in % of the GDP in 2013 [GDP HUF 29,203.0 bn – 2013, preliminary data]

Subsystems Central Municipal Total Total no. of personnel 524 115 247 722 771 837 Personnel costs TOTAL (in HUF bn) 1 527.1 459.2 1 986.3 Personnel costs in % of the GDP 5.2% 1.6% 6.8% Personnel under the Kttv. 79 499 31 881 111 380 Regular salary of employees in the Kttv 263.2 87.2 350.4 (in HUF bn) Regular personnel costs of employees un- 0.9% 0.3% 1.2% der the Kttv. in % of the GDP Source: NGM calculation decrease, since even in 2011 the total personnel costs of public administration were practically identical to the 2013 figure of HUF 2009bn. A 0.95% GDP growth equals a 0.5 percentage point financing rate decrease. 165 According to an international study, a 1% personnel increase or decrease generates a 0.3% ratio to GDP financing change. Source: Barbier-Gauchard-Annick, Amélie - Le Guilly, Guilloux-Marie-Francoise: Tableau de bord de l’emploi public, Situation de la France et comparaisons internationales. Download: www.strategie. gouv.fr/content/tableau-de-bord-de-l%E2%80%99emploi-public-situation-de-la-france-et-comparaisons- internationales Date of download: 31 January 2014.

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The transformation of the organisational structure rearranged the proportion of the personnel between the state administration bodies and the local municipalities, but it didn’t have an effect on the size of the total number of personnel.

Number of public administration employees in 2006 and 2013 111 961 111 853 115 000 2006 100 000 2013

85 000 80 621 70 000 66 589

55 000 45 372 40 000 31 232 25 000 10 000 Employed in state Employed at local Employed in public administration municipal administration authorities

Source: KSA / Graphic: the author

In the last three years the number of public sector officials practically didn’t change at all (2010:111,873; 2013:111,853).166 This confirms our previous statement that the reduction of the number of bodies doesn’t necessary imply a reduction in the number of employees. The personnel data only confirms the effects of reduction in personnel, which by the way don’t prove to be long-lasting.167

166 Source: KSA 167 HAZAFI, Zoltán: c.f. footnote 17, p. 200

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The number of public administration bodies and the size of their personnel 1994-2013

90 000 800 729 721 720 066 79 707 693 80 000 687 687 685 672 700 652 69 128 646 68 388 67 242 634 622 65 984 70 000 62 029 600 60 000 500 70 304 70 67 756 68 332 66 653 66 589 64 876 50 000 64 696 61 896 400 436 444

40 000 54 154 51 971 436 52 018 51 438 50 903 300 30 000 Number of personnel with a civil service legal status at central, 200 20 000 regional and local bodies 245 234 223 10 000 Number of bodies 100

0 0 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2008 2009 2010 2011 2012 2013

Source: KSA / Graphic: the author

Taking the organisational changes of the last 20 years into consideration, changes to the personnel number didn’t point in the same direction at all times. While between 1994 and 2006 the number of personnel in general followed the changes in the number of bodies, following this period there is a divergence that shows along with a reduction in the number of bodies, the number of the personnel increased. This can be explained by several factors. On the one hand before 2006 the changes in the number of organisations were primarily due to outsourcing and backsourcing, after 2006 the number of organisations decreased because of organisational restructuring (mergers). The authors believe that in the second period the number of personnel didn’t decrease because of the state takeover of municipal tasks. Although we have seen examples for the handover of tasks even before 2010,168 the structural changes that increased the proportion of the state in fulfilling these tasks primarily happened after this date.

At the same time there are changes in one of the important efficiency indicators of the HR organisational units in the county and Budapest metropolitan government offices. There are on average 100 governmental officials for one HR administrator.169 This practically equals the performance indicator expected from the previously planned HR services

168 Duty Offices and Chief Architects Offices. 169 KIH adatközlés 2014

60 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research centre.170 According to the plans171 the organisational integration will continue, as a result of which even larger organisations will be created. This can provide room for the improvement of functional operational efficiency that can enable a management that is more balanced and adjusted to the tasks to be performed.

5.8. HR management as an efficiency reserve

Changes in personnel are closely connected to the quality of HR resource management. During the research we established that a transitory state between personnel management and HR management is prevalent in all spheres of the civil service. In this intermediate state – says Gábor Szakács – the personnel operation is primarily administrative, bureaucratic, operational and heavily regulated in its nature. The HR organisational units and the experts most often follow instead of leading the way forward. A strategic approach or strategic thinking occurs only occasionally and integrating is rare. Primarily on the basis of legislative regulation, HR activities and functions that would methodically and systematically belong together don’t form a unified, integrated system or processes. But an efficient civil service operation is not possible without the development of integrated system processes that serve as a foundation to a clearly defined, regulated and unified logical system, one that is able to adapt to changes, and can be developed.172

In our opinion in order to exploit efficiency opportunities resulting from larger organisations the HR management should reach a certain level of development. We think that this level hasn’t been reached yet, and among others this is the reason why the personnel number hasn’t achieved a state of stability and predictability despite the centrally arranged redundancies. Even today the mechanisms (e.g. the strategy based personnel management, mobility policy and career planning) that can transform opportunities into tangible results were and are still missing. The efficiency reserve of the system primarily lies in the formation of the aforementioned mechanism, not in the reduction of personnel. Operational efficiency can be improved if the greater organisational size is coupled with integrated, strategy based HR management. Deficiencies in strategy based personnel management173 “The HR activities in question are carried out in a centralised manner (at the national and regional organisations) according to unified directives and legislative regulations with regard to the total number of employees at the organisation in the law enforcement sector, which has a more centralised and structured operation. However, in the state administration, and much more so in the case of municipalities, these tasks are

170 In a survey conducted in 2006 this figure at the ministries was 39.23%. Megvalósíthatósági tanulmány a Kormányzati Személyügyi Központ szervezetének kialakítására, KPMG Tanácsadó Kft. Manuscript, 3 No- vember 2006. 171 Objectives set during the preparation of the Magyary Programme 2014 172 SZAKÁCS, Gábor, DR.: Stratégiai alapú, integrált emberi erőforrás gazdálkodás a közszolgálatban. „KÖZ- SZOLGÁLATI HUMÁN TÜKÖR 2013” (sectorial summary study), p. 23, 27-28 173 SZAKÁCS, Gábor, DR.: Stratégiai alapú, integrált emberi erőforrás gazdálkodás a közszolgálatban. „KÖZ- SZOLGÁLATI HUMÁN TÜKÖR 2013”(sectorial summary study), p. 111-112

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performed at the level of the given organisation and organisational units. Based on the data measured it can be stated that in all spheres of the civil service there is personnel planning and personnel management even if the majority of the people affected are not aware of it. The problem is seen in that in most places personnel planning and personnel management there is no mid-term (2-4 years) or long-term (longer than 4 years) planning, i.e. it is not adjusted to the strategy and HR strategy of the orga- nis tion, but is implemented to serve immediate (half-year) or short-term (one-year) needs. Municipalities indicated that yearly planning could be a decisive solution […]. From the examination we can conclude that in most areas of civil service there is no long-term, strategy-based personnel and HR planning. The strategic planning opportunities are greatly limited by continuously changing political interests and the usually decreasing budgetary resources connected with these, the salary costs, central directives issued by the government at any time (redundancies or extensions, task reorganisation, organisational restructuring, etc.), and other factors that cannot be influenced on the organisational level. The dominance of operative, short-term planning is confirmed by data that show for HR planning the personnel data, salary changes, effective legislation, upcoming retirements, the extent of the fluctuation, the yearly organisational plan and the organisational restructuring previously announced are taken into consideration. In comparison, answers that require long-term planning (taking the organisational strategy and other strategies into account, the application of an HR management strategy) are much less present than the short-term ones. To confirm the previously outlined results on strategic planning, there were people who know or hope that in all spheres of civil service that were examined there is a reason d’etre for long-term strategic planning and strategic thinking.”

5.9. Summary

We saw our hypothesis – the claim that differentiation in the governmental official and civil servant legal status has sped up – confirmed. We differentiated between different types of mixed statuses that were connected to the special characteristics of the public administration organisations and the task system, and to the changes occurred in recent years. Through examples we showed that special regulations that ensure the independence of autonomous bodies are not consistent, and there are significant differences within one public body (one public body type). These point to the creation of individual, “island like” statutes in the different organisations. While in the case of a civil service legal relationship, the autonomy of the organisation can justify some special regulations, it cannot be justified in the case of governmental officials at bodies under governmental control. Despite this we found two new development trends in governmental service statuses: the formation of a new sui generis legal relationship and a hidden mixed legal status.

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In connection with changes in the organisational structure we presented the opportunities that organisational integration provides for the establishment of more efficient operations. At the same time opportunities that lie in the large organisational size and a larger personnel concentration haven’t been exploited yet. This is partly supported by fluctua- tions in the personnel which led to the conclusion that the conditions to introduce strategy based, integrated HR management are not present. Lacking this, however, operations cannot be made more efficient.

We put forward recommendations that can be summarised as follows.

From the different alternatives we support the solution that the legal status of autonomous bodies would be governed by the Kttv. in a way that deviations are added in a separate article. This requires the revision of the law’s structure, the need to create sections for general provisions and for special provisions since the point in this solution is that the law – besides the common regulations – would include the special provisions relevant to the different organisations as a codex. The general section would stipulate the provisions that apply for public administration types of positions also, and the areas where divergence is justified. At the same time special regulations that cannot be explained by the protection of autonomy shall be repealed, for example in the case of an autonomous state administration body, the opportunity to have an independent HR policy.

We don’t see the justification for creating further sui generis legal relationships. If the merger of the two laws (Hszt. and Kttv.) isn’t considered a system level objective, then no organisational integration in itself can justify the creation of a new, independent legal relationship. Consequently, in matters where the service area approximation has already taken place (NAV), it is justified to include them again in the legislative process (performance assessment system, continued training).

6. Mobility

In our view mobility is a determining factor in the legal and HR management systems of the civil service – even if mobility is in reality a consequence of these two – because the improvement of mobility influences legal regulations and HR management through measures taken in line with main governmental objectives. We examined the level of freedom and limitations that law enforcement and defence forces allow to for approximation to the regulations. We had to establish that both the Hszt. and the Hjt. have their own internal consistency issues that are often manifested in differentiation and unification and they show similarities with other dilemmas of the civil service.

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6.1. Act XLIII of 1996 on the Service Status of the Professional Members of the Armed Services (Hszt.): Halfway

The Hszt. that regulates law enforcement bodies’ employment relationships can be posi- tioned between the Kttv. and the Hjt. for several reasons. The official legal service is tied to the “common past”, and the common regulatory precedents. Both legal statuses have common features – that make them differ from civilian civil service – e.g. strict dependence on structure, chain of command, unconditional obedience to orders, ranking systems and a wide range of regulations affecting private life as well. At the same time, both in the law enforcement bodies’s activities and in the regulation of the service status an approximation process has started. This was assisted when the legislation regarding the Hungarian Defence Forces was lifted from the Hszt. regulatory system. A stricter military status provided the opportunity to make the official service status more “civilian”, and to get closer to the governmental service status. At the same time the official service status – due to the common regulatory past and the common “operational” principles – is still closer to the official military legal status than to the governmental service status. This latter has a different promotion system and related salary system.174

The fact that the Hjt. set out on an independent path not only allowed approximation to the civilian regulations, but made the regulation more homogenuous also. This significantly reduced the role of the Special Provisions because a majority of the provisions could be regrouped and included among the general provisions. Parallel to this, significant steps were made in the last few years to unify the HR management, social and welfare systems of the armed forces. This is encouraged not only by political will, but also by some natural, internal attempt for equality. At the same time, besides structural reforms a renewal of the legal institutions is required as well. Based on this we can state that the reform of the Hszt. even without the objectives set out in the Magyary Programme has become unavoidable.175

In EU member states, members of the law enforcement bodies are employed in the framework of a closed system civil service legal regulation.176 Yet, the conditions for the creation of a legal relationship (e.g. citizenship, Hungarian permanent address,177 age limits,178 health care examination, clear check from the intelligence services), as well as

174 BOGNÁR, Gábor: A rendvédelmi szervek hivatásos állománya szolgálati viszonyát szabályozó normák a köz- szolgálati jogviszonyok rendszerében, p. 43 175 Ibid. p. 84 176 LINDER, Viktória: A hivatásos és a civil közigazgatási személyi állomány foglalkoztatási viszonyai nemzetközi összehasonlításban, sub-study (manuscript) p. 5-6 Table 1. 177 Although in most countries the general conditions of employment include citizenship and a permanent address, in the United Kingdom – in addition to the Commonwealth countries, the European Union and countries of the European Economic Area and citizens of Switzerland – other citizens with a residency or work permit valid for an indefinite period of time can be employed by the police also. Ibid. p. 8-9 178 The French National Gendarmerie accepts applicants above 17, the London Police from 18 and for the civilian personnel the application age limit is 16 years of age. The upper age limit for entering the service is usually between 27 and 35. Ibid. p. 11

64 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research the methods and processes applied during selection179 are much stricter than in civilian public service. We also see that measurements, evaluations, assessments and efficiency improving tools and methods characteristic of the private sector also appear. It can be established that “[…] there is no police service in Europe where some individual or organisational evaluation would not take place”.180 The examined international solutions confirm that the HR system of these bodies – due to the need to fulfil identical functions – show basic similarities to the regulations and practice of the civilian public administration, yet the applied solutions have special characteristics typical of “armed” organisations.181

In several countries the regulation of the civilian public sector has become more flexible, and it approaches the general labour law regulations. This process, however, hasn’t affected the area of law enforcement where the traditional career system remained in place. It seems to us that the relative separation of law enforcement from other civil service fields is accepted. A feature of this is the promotional entitlement in the ranking system, extra expectations that come with greater career security and the limitation of certain basic rights.182

In regards to selection, training and qualification expectations the research pointed out that since the armed forces provide for professional training (beyond basic secondary and higher education) in their own training institutions, the selection techniques applicable in the governmental service legal system may not necessarily apply for official members of the defence forces.183

6.2. Act CCV of 2012 on the legal status of defence forces (Hjt.): mixed legal status in military order

Military service rights can be defined as an independent legal area within civil service law. Its separation is justified exclusively by the principles and the legal institution typical of the military legal status.184 This legal status at the same time shows features 179 The selection procedure is usually long, with various rounds that include physical assessment, health condition, psychical and mental aptitude tests, stress tests, knowledge assessment and in some cases the measurement of relevant competencies. France and Spain have competitive examinations, in Anglo-Saxon countries the selection is not restricted, it is within the powers of the organisation’s leaders to determine the selection tools to be applied. Ibid. p. 11-12 180 Ibid. p. 15 Police performance management is particularly typical in the United States, Australia, the United Kingdom and in the Scandinavian countries. [See Fleming, Jenny: Performance Management, In: Wakefield, Alison – Fleming, Jenny (editors): The Sage Dictionary of Policing. London: SAGE, 2009; O’Malley, Pat – Hutchinson, Steven: Converging Corporation? Police Management, Police Unionism, and the Transfer of Busi- ness Principles, In: Police Practice and Research 2007/2.] 181 PETROVICS, Zoltán: A JOGI SZABÁLYOZÁS MUNKACSOPORT ZÁRÓTANULMÁNYA p. 81 182 LINDER, Viktória: A hivatásos és a civil közigazgatási személyi állomány foglalkoztatási viszonyai nemzetközi összehasonlításban, p. 1-21 183 BOGNÁR, László: A rendvédelmi szervek hivatásos állománya szolgálati viszonyát szabályozó normák a közszolgálati jogviszonyok rendszerében, p. 83 184 See more details in: Ibid. p. 38-45. Among the unique features of military service law Gyöngyvér Szekendi in her analysis – in addition to public service tasks typical of civil service, the primacy of the public interest and

65 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research similar to the official members of law enforcement. This duality is expressed also in the fact that the Hjt. defines the military service status as special civil service legal status.185 The different legal institutions, the system of extra obligations and extra rights of the Hjt. and Hszt. show a number of similarities.186 Nevertheless, the separation is justified, because the external and internal defence of Hungary requires personnel with special competencies and a different organisational structure.187

Another sign for relative independence is that the Ptk. is the background legislation to neither the Hjt. nor the Mt.188 Based on this we can come to the conclusion that the military service status has a separate group of legislation with its own internal structure that regulates the military service status with special content and in a mandatory manner.

The mandatory nature of the regulation is visible when status is generated, during service and upon termination of the status in the case voluntary reserve soldiers, officer candidates and non-commissioned officers, with a scholarship contract. Even though these contracts are bilateral legal statements they cannot qualify as dispositive civil acts, but they are much more like an employer decision in accordance with the definitions of the Hjt.189 French and Austrian pubic law contracts for civil service are similar in nature.

Research shows that the regulation of the three examined service areas are closely connected, and in a certain sense have recently become even closer, but it also shows that some issues and features are mutually present in the different fields of law. In the case of the Kttv. we discussed the different questions related to a mixed legal status in detail and explored the characteristics of the hidden mixed legal status. We had to conclude that these also appear in the regulatory system of the Hjt.

The personnel of the Hungarian Defence Forces is very heterogeneous: in times of peace besides soldiers there are governmental officials, public workers and regular employees,190 for whom the legislation suitable to their own legal status shall be applied (Kttv., Kjt. and Mt.). While in the case of the Kttv., the separation of a public and governmental official service status is not problematic, in the defence forces experience shows that public

the ranking of the parties – mentions the following features as distinctive characteristics: the risk of sacrific- ing one’s life, the limitation of basic rights, the strict command and dependence structure, the heterogeneous personal group, the system of extra obligations and extra rights, the ranking according to job description types, weapon subgroup (specialisation) and position types, professional group ranking, and legal institutions with special functions or assumed special functions. See more details: Ibid. 49-53., p. 266-269 185 Hjt. 3.1. 186 Hjt. and the Hszt. contain the legal institution of the reserve base for the same purpose. Ibid. p. 269 187 Ibid. p. 269 188 Ibid. p. 45-48 189 Ibid. p. 264 190 Act CXIII of 2011 on national defence, the Hungarian Defence Forces and the measures to be introduced in special legal order. (Htv.) Art. 40.1. The personnel management of the Defence Forces is limited. The detailed numbers are set by the Hungarian National Assembly in accordance with Htv. 19.1. (b). See SZEKENDI, Gyöngyvér: A Magyar Honvédség békeidőszaki személyi állományának foglalkoztatási viszonyai, különös tekintettel a honvédek jogállására, p. 11-12

66 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research workers and governmental officials are not employed simultaneously. From this we can conclude that the separation of the two legal statuses is clearly defined by the ranking and basic activity of the “employer” defence organisation: either through the exercise of public authority or the provision of public service.

Making a distinction between civilian and military positions is much more difficult. The separation “cannot be simplified by claiming that the basic tasks of the Hungarian De- fence Forces are executed by employees with official statuses, while the functional tasks that ensure the operation of the Defence Force organisations (e.g. finance, management, HR) are performed by governmental officials or public workers”.191 Nor could we say that “positions that require the officer or non-commissioned officer training of the Defence Forces are to be considered military positions only.”192 In order to fulfil international obligations or to ensure the operation of the Hungarian Defence Forces many times civilian positions also require employment in service status.193 Some positions can be filled by governmental officials, public workers, regular employees or soldiers, too – i.e. some positions can be filled by either a civilian or a solder – there is no need for job reclassification. This is a legal situation identical to the hidden mixed legal status described about the Kttv.194

Based on this, the research concluded that the distinction cannot be made “with a general decision and exclusively by legislation: the nature of the legal relationship can only be determined for the given position: primarily based on the tasks included in the job description, through job description analysis.” 195 This is made more complex by the effect of organisational culture, since by nature the operation of the Hungarian Defence Forces is built on military traditions and military service relationships that prefer employment in a service relationship.

In summary, qualifications are not a direct distinctive feature between the military and the civilian legal status. They determine whether a service or contractual legal relationship can be established, which only influences the military job description classification. Having regard to the nature of the basic activity, the organisational grouping could be a

191 Ibid. p. 265 192 Ibid. p. 22 There are many doctors, lawyers, financial or HR experts that perform their public service not in the positions included in the basic activities of the Defence Forces, have civilian qualifications yet are employed in a military legal status. 193 Ibid. 194 SZEKENDI, Gyöngyvér: A Magyar Honvédség békeidőszaki személyi állományának foglalkoztatási viszonyai, különös tekintettel a honvédek jogállására, p. 21. The proper professional area of the job description, the nature of the work, the job description’s location in the hierarchy of the ranking system, the employment legal relationship and restrictions related to this, the foreign language knowledge requirement for the job description and its status under the national security check is identified in the so-called Job Description Identifica- tion Code. For example, job descriptions under the “K” Job Description Identification Code can be filled by governmental officials, public servants, employees or even soldiers, so the position can be filled by civilians of soldiers without reclassification. However, in this area the differences between the benefit systems in the legal status laws can be clearly seen. Ibid. p. 23-24 195 Ibid.

67 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research distinctive feature between public workers and governmental officials, but it cannot be an exclusive determining factor in differentiating between civilian and military employment. Through the basic activity of the organisation it is the job description that clearly makes distinction between the legal statuses of the civilian employees. The difference between the civilian and military job descriptions are: participation in the basic activity of the Hungarian Defence Forces, the requirement of military qualifications and the influence of the organisational culture.196

We outlined earlier that if the personnel is organised according to the different legal statuses within an organisation, this can result in tensions, primarily because of the diffe en es in salaries and benefits. This is also true in the case of the Hungarian Defence Forces.197

The comparative analysis showed that besides the preservation of unique characteristics in some areas, a coordinated regulation of the legal statuses will be required in the future. Therefore in relation to the regulations governing the termination or cancellation of legal relationships it could be justified to have national security ineligibility or unsuitability added to the list of considerations also.198

6.3. Unified development of HR processes as the basis of mobility and unification 6.3.1. Civil service system model

According to our hypothesis mobility between the three official orders can be improved through the unification of HR management systems that apply unified principles. In order to confirm this we set up a system model that could provide an adequate framework in all three legal statuses for modern and efficient HR management. 199We included all the important external and internal factors that are indispensable – to our present knowledge – for efficient HR management.

196 Ibid. p. 266 197 All this can generate enmity between employees in different legal statuses, employee motivation could decrease, the individual and organisational performance could deteriorate and the retention power of the organisation could drop. Szekendi, Gyöngyvér: A Magyar Honvédség békeidőszaki személyi állományának foglalkoztatási viszonyai, különös tekintettel a honvédek jogállására, p. 264 198 Ibid. p. 272 199 SZAKÁCS, Gábor, Dr.: Stratégiai alapú, integrált emberi erőforrás gazdálkodás a közszolgálatban. „K ÖZSZOLGÁLATI HUMÁN TÜKÖR 2013” (sectorial summary study), p. 27

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The model of a strategy-based, integrated civil service HR management system200

EXTERNAL INFLUENCING FACTORS Society, politics, Partners, state culture, tech- and local com- Employee Legislation Labour market nology, macro- munities organisations economics (stakeholders)

ORGANISATIONAL STRATEGY HR-STRATEGY

BASIC-TASK HR-PROCESSES RESULTS

Notivation, set of competences 1. Strategic planning, – secure and retain personnel system development – creatlion of organisational and personal uniformity of 2. Methods of work interests, trust and stability Personnel – organisation and personal 3. HR flow and performance, quality work development (civil Career paths – improved organisational cul- service career plan ture management) – set of organisational compe- Job-description tences groups 4. Performance – motivated, satisfied, commit- management ted workers, low fluctuation Position, job – lawful, efficient operation description 5. Incentive management (compensation – organisational learning - and remuneration) learning organisation Requirements, – client satisfaction compensation

The organisation, or- Operational processes of Information flow within Relations ship of the ganisationtal structure, the organisation, tasks the organisation, commu- personnel and the organ- management system, and procedures nication isation organisational culture

EFFECTS OF THE INTERNAL ENVIRONMENT

Prepared by: Dr. Gábor Szakács

In the system model we indicated the most important HR management efficiency indicators that can be used to evaluate the efficiency of the HR process and the related personnel functions. From the model it becomes obvious that the main objective of all HR management activities is to create harmony between the employee (leaders and subor-

200 Source: BAKACSI-BOKOR-CSÁSZÁR-GELEI-KOVÁTS-TAKÁCS: quoted footnote 158 p. 51; HENEMANN, SCHWAB, FOSSUM,, DYER: Personal/Human Resource Management, IRWIN, Homewood, Illinois (3rd Edition), 1986. The model was built with the use of the indicated literature.

69 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research dinates) competences and motivation, as well as between the requirements for the given position(performance, work behaviour, loyalty, etc.) and the financial compensation given in that position.201

The basis of the civil service system model “For the establishment of a strategy based, integrated HR management system model we used all the available professional and scientific results that we deemed to be directly or indirectly useful for the success of our work. We wanted to incorporate the good practices and the theoretical and practical solutions that proved to be viable at least partially or fully. Over the last 20 years we have participated in the development of many HR processes and functions within the public sector and we used our accumulated experience in a creative way. The greatest inspiration came from the strategic HR management model published by Attila Bokor202 that – together with other elements – could serve as the foundation for a civil service system model. We adapted and adjusted the model for the civil service on a theoretical level.”203

In our examination we did something new with the basic model: we coupled the HR functions of the different HR processes with the legal institutions prescribed for the different professional orders by legislation and other regulations. In the course of this we established that the similar or identical activities (in content or function) have different names in the various legal regulations and that the legal terminology and the HR management definition system are different. The HR processes deal with important questions that the regulations don’t or only partially cover. The structure of the regulations is not built on the same logic, and they cannot or only very distantly be matched with the already established HR systems.204

6.3.2. Analysis of HR processes

Following the examination of the HR functions we concluded that it is not the level of legal regulations, but the extent of the central support for the functions that we should examine (this includes regulation, methodology and training), and this is the viewpont from which the function comparisons should be made. The results show that both the level and the nature of support for the different functions are varied. For example, performance assessment is fully supported, but strategic planning gets only methodological support.

201 GYÖKÉR, Irén, DR. – FINNA, Henrietta, DR. – KRAJCSÁK, Zoltán: Emberi erőforrás menedzsment. Budapest, Buda- pesti Műszaki és Gazdaságtudományi Egyetem Gazdaság- és Társadalomtudományi Kar Üzleti Tudományok Intézet, 2010 p. 15 Quoted by SZAKÁCS, Gábor, DR.: Stratégiai alapú, integrált emberi erőforrás gazdálkodás a közszolgálatban. „KÖZSZOLGÁLATI HUMÁN TÜKÖR 2013” (sectorial summary study) p. 30 202 BAKACSI-BOKOR-CSÁSZÁR-GELEI-KOVÁTS-TAKÁCS: quoted footnote 158 p. 43-75 203 SZAKÁCS, Gábor, DR.: Stratégiai alapú, integrált emberi erőforrás gazdálkodás a közszolgálatban. „K ÖZSZOLGÁLATI HUMÁN TÜKÖR 2013” (sectorial summary study) p. 11 204 Ibid. p. 34-35

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Both the development of performance assessment and HR functions clearly show the development stages they went through in order to become institutionalised in resource management. The conclusion is that building the functions requires a decision “from above” and political will that will create legitimacy for that function. It is not enough to leave it to the discretion of the leaders and make these functions dependent on the level of their “enlightenment”.

The traditionally labour law related regulatory subjects show high level regulation in all three legal statuses (e.g. working hours). At the same time there are work areas that reveal differences between the three legal statuses (e.g. atypical, flexible working time systems), but they are mostly content related differences. For several activities it is true that besides the legal regulation methodological support should be provided for the employer to assist with the application of the legal institution (e.g. telecommuting).

Most traditional public law and personnel regulating legal institutions as well as a large percentage of the already “built in” HR management solutions don’t function as part of a system where they could co-exist, build on and mutually reinforce each other. It is quite rare to have strategic objectives present or to have a request for new activities, methods and management techniques to be applied.

HR functions show a duality: certain HR functions and activities are present in the system, but they are fulfilled only on paper. This duality is generated by the controversial and fragmented regulations, often because of differing terminologies. Horizontal cooperation between organisations and expert fields are lacking, and the best practices don’t get exposure among the professionals.

Several HR functions that are indispensable for efficient HR management are missing from the present regulatory environment.

6.3.3. Mobility

From the aspect of transferability it is important to assess mobility between the different professional systems. Based on our research, mobility between the different areas can be explained as follows.

In public administration there are twice as many people who have work experience outside the public sector. This reveals that the other two areas are more closed to civilian public administration.205

205 State administration ranks the lowest (20.7%) among people who start their career in civil service. The percentage of people who started working at a municipality (as their first workplace) is slightly higher (24.8%) and those who started their career in law enforcement have the highest percentage (43.1%). SZAKÁCS, Gábor, DR.: Stratégiai alapú, integrált emberi erőforrás gazdálkodás a közszolgálatban. „KÖZSZOLGÁLATI HUMÁN TÜKÖR 2013” (sectorial summary study) p. 64

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Mobility between the different fields is quite limited. Instead of transferring from one service area to another, employees prefer leaving the civil service or “escaping” to retirement.

During the mobility analysis we examined the work experience that employees accumulated.

Distribution of the acquired professional, practical and/or leadership experience (in average years) 18 16 15.4 14 13.4 12 10 8.7 8.4 8.8 8.4 7.5 8 7.3 6.9 7.1 7.1 6.8 6 4 average years average 2 0 senior manager middle mana- junior work HR senior HR middle HR junior work experience ger experience experience manager expe- manager expe- experience rience rience

since entering the in civil service labour market Source: Civil Service HR Mirror 2013

“Without exception in all positions and job descriptions the average employee has very little work experience outside civil service. From the data we can conclude that the majority of the middle and senior leaders are recruited from among civil service personnel. Therefore it seems obvious that civil service, the organisational culture of the given public body and the dominant management style are the determining factors, and these set the direction to follow. The average figures show that a significant percentage of civil service officers climb the “corporate” ladder during their career. They spend the longest time as subordinates (in junior positions), and their service time as middle managers is usually shorter than as senior managers. Of course the average figures also cover exceptions, fast promotions without precedents, but these figures are more or less reliable. They reflect that automatic career promotion over time – prevalent in bureaucratic organisations – is still considered the general practice. Within and outside civil service we see similar proportions regarding the different positions fulfilled during one’s service years. Results about mobility show that the examined environment has a low aptitude for mobility.”206

206 SZAKÁCS, Gábor, DR.: Stratégiai alapú, integrált emberi erőforrás gazdálkodás a közszolgálatban. „KÖZSZOL- GÁLATI HUMÁN TÜKÖR 2013”(sectorial summary study), p. 65-66

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Based on the low occurrence of workplace and job description changes, we can establish that in the examined personnel group the “one job, one position” practice is predominant. We can conclude that as long as employees work in one workplace, their job description doesn’t change either. This doesn’t mean that they don’t make promotional or ranking progress, but their tasks, and therefore their job descriptions, remain unchanged. “There- fore the majority of them move in one career lane, in the same job description type, usually upwards, because, for example, the drafter becomes councillor then lead councillor, the detective becomes a principal investigator then a special investigator. Based on the examination of the average results with the presently applied method we cannot confirm reliably that there is horizontal movement or job description change within the organisation, or between organisations and specialist fields. In everyday practice there are some exceptions to the general rule when a subordinate becomes a leader or if there are significant changes in the employee’s tasks that results not only nominal, but significant modifications in the job description – with new content, responsibility system, problem-solving needs – which is or should be classified as a new position.”207

In conclusion, “Changes between jobs, job descriptions, job description types, career plans, expertise and professional orders are supported by the present career system only to a limited extent. The situation is similar regarding mobility opportunities between the private sector and civil service. The obstacles in this case are primarily not legal. In addition to the already existing salary differences, this originates much more from the differences between the operation, organisational structure and predominant leadership styles, expectations and interests of the two sectors; and consequently it is also down to differences between approaches, ways of thinking and responsibility management styles that make the two-way movement between the two sectors difficult or result in the employee leaving the civil service career. We are convinced that apart from a very insignificant proportion of truly inadequate and unworthy personnel, the problem doesn’t lie with the civil service officers. [...] What is needed is to change the framework of the organisation’s operation and conditions, the organisational culture and the leadership style, to make a reform regarding relationships between leaders and employees, communication and information flow, to establish real responsibility and decision- making competences, to give room for innovation and continuous development, to keep motivation at a high level, and last but not least, to compensate the work at its actual value.”208

6.4. Summary

All three professional system regulations have their own structural problems that can indirectly affect the question of differentiation–unification. These problems cause obstacles for the approximation of the three legal areas.

207 Ibid. p. 67 208 SZAKÁCS, Gábor, DR.: Stratégiai alapú, integrált emberi erőforrás gazdálkodás a közszolgálatban. „KÖZSZOL- GÁLATI HUMÁN TÜKÖR 2013” (sectorial summary study) p. 68

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The Kttv. is burdened by the widening trend between the legal statuses, the Hszt. is under pressure to reform its own legal institution and the Hjt. has problems with separating military and civilian positions.

It seems that the harmonising of the legal status regulations requires harmonised management of the similar issues, and therefore these questions should be dealt with not on a sectorial, but at least on an inter-ministerial basis.

A civil service HR supervision system must be developed for the civil service to fulfil the HR functions of the organisations (indicators, operational screening, etc.)

Today all three areas operate in a closed structure, yet a unified HR management system and a job based approach could make the system more unified and could improve mobility and transferability between the three professional systems.

7. Labour market effects

It is common knowledge that the labour market influences civil service operation, since the supply of experts for public administration is provided by the labour market. The greatest challenge for public administration HR policy is to ensure and retain a qualified, highly performing, committed and motivated workforce for present and future tasks in adequate numbers, at adequate times and places and do so in a way that adjusts to labour market realities, makes use of the opportunities and avoids known threats.209

7.1. Supply-based labour market

The labour market’s influence is different in the civil service than in the private sector. According to György Gajduschek the civil service primarily faces the supply side of the labour market. It means that the public administration employs a larger number of officers whose expertise is not really required, and pays a salary almost twice as high for this as an employee with lower qualifications, yet adequate for the position, would get.210 “Pressure from the supply side pushes a large percentage of people laid off in the private sector to public administration. Public administration, at least in part, hires this group of people irrespective of whether they are needed or not, and pays them a much higher salary than reasonable for the position.211 Public administration lost its advantage (the career-based system) vis-a-vis the private sector and has become a loser in this situation.212 We would add two comments to this assessment. On one hand, job seekers can arrive not only from

209 Ibid. p. 25 210 Gajduschek, György, Dr.: Kínálati munkaerő-gazdálkodás? Avagy mi határozza meg a köztisztviselői állomány összetételét? Új Magyar Közigazgatás 2010, 8th issue, p. 22 211 Ibid. p. 25 212 Ibid. p. 23

74 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research the private sector towards civil service, but the other way around as well. It has happened in many instances following redundancies that reintegration into the private sector has been encouraged (e.g. career-bridge programme, and other agreements to help demobil- ised soldiers find employment).213 On the other hand, the demand on the labour market wasn’t taken up by the public administration spontaneously, but under governmental direction and support, coupled with adequate training programmes (e.g. training teachers to become administrators). Both of our comments only confirm that market principles and rationality can be overwritten by socio-political aspects (social sensitivity, solidarity, encouraging diversity, etc.) that can counterbalance the influence of the labour market with soft budgetary restrictions.

György Gajduschek set up this diagnosis on the basis of the ageing of the personnel, the profession’s feminisation and the inadequacy between the tasks and the qualifications (among others). In the course of our research we examined whether there were changes in the last three years in these areas.214

According to György Gajduschek “[...] the private sector primarily seeks younger and middle age people, and based on the age tree of the population it is obvious that these generations make up the majority of corporate employees, i.e. the contrast between the private and the public sector is tangible, with a deficit for the latter one.”215 At the same time the figures indicate changes. It seems that regarding division between age groups and the proportion of the older generation there was a significant drop in the distance between the two sectors. While in 2009 the ratio of people between 50–68 employed in the private sector was 25.4% and in public administration 32%, in 2013 these figures were 26.7% and 28.5% respectively.216 In our view an important reason for the public administration to “become younger” was the introduction of measures that aim at attracting young people (e.g. the Hungarian Public Administration Scholarship Programme). At the same time, the increase in the ratio of young people doesn’t show a homogeneous picture in public administration. It is more prevalent in state administration, and within that, at ministries.

213 The Ministry of Defence and the Ministry of National Development signed an agreement about the support that people forced out of military service should get in to order to find new employment. The Ministry of National Development helps to mediate between the Defence Forces and companies in majority state ownership to sign agreements that help people leaving the services who were made redundant for reasons beyond their control. As part of this initiative the Ministry of Defence and the Hungarian Railways (MÁV Zrt.) signed an agreement that the ministry shares personal data (with the permission of those affected) with companies in the MÁV Group to examine employment opportunities for the people in question. See http://www. honvedelem.hu/cikk/39814 (Date of download: 30 November 2013). Quoted by: PETROVICS, Zoltán: A jogi szabályozás munkacsoport zárótanulmánya p. 92-93 214 György Gajduschek used data from 2004 and earlier. 215 GAJDUSCHEK: quoted footnote 210 p. 16 216 Private sector data: Central Statistical Office (KSH), the number of employees according to age group and gender. Downloaded from: www.ksh.hu/docs/hun/xstadat/xstadat_evkozi/e_qlf006a.html, Date of download: 19 February 2014. Public administration data:: e- KÖZIGTAD 2009, KSA 2013

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In the last few years the increase in the ratio of women continued (2.5%). At the local municipalities the proportion is higher (79%), while it is lower at the state administration bodies (73.5%). The smaller a local municipality, the higher the ratio of women – with the exception of Budapest – in villages it is 87.8% and at county level municipalities 69.2%). At the state administration bodies there is an inverse relationship: the higher the average salary, the lower the ratio of women who are employed (in the county and Budapest metropolitan governmental offices 71.8%, at autonomous state administration bodies 69.5%, in the Prime Minister’s Office and ministries 62.7% and in independent regulatory bodies 58.9%).217

Gender ratios in public administration 2004, 2013 80% 72.4% 74.9% 70% 60% 50% 40% 30% 27.6% 25.1% 20% 10% 0% 2004 2013 women men

Source: KSA / Graphic: the author

If we examine the ratio of age groups and genders based on organisation types, we see that at bodies that offer higher salaries the ratio of young people is higher and the ratio of women is lower than the average. From this we can conclude that a more advantageous labour market situation can influence these proportions.

György Gajduschek explains the surge of people with a higher education degree in the last two decades primarily with the labour market supply. In his view the public administration wouldn’t need this many people with higher education degrees.218 Upon examination of the job descriptions and the qualification requirements György Gajduschek’s statement seems to be grounded, since presently half of the positions could be filled by officers of any ranking. At the same time according to a recent survey219 the employers

217 KSA 2013 218 GAJDUSCHEK: quoted footnote 210 p. 18 219 Research for the review of qualification requirements perfomred within the framework of the ÁROP-2.2.17 highlighted project.

76 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research gave a similar estimate for positions that could be filled by category II employees.220 This means that the employers’ view follows the spirit of recent regulation that practically ig- nores whether the given position could be filled by someone with only a secondary degree where the work wouldn’t require higher education qualifications. We can explain this by the effect of almost 20 years of regulations regarding qualifications and with the intention to maintain employer flexibility.

Jobs that could be filled by category I and category II employees based on factual data and employers’ assessment % (2014)

46.4% total 47.4%

central 45.4% administration 38.0%

regional 32.0% administration 40.3%

72.2% municipalities 70.4%

factual data assessment

Source: Kkr. review 2014, ÁROP-2.2.17 / Graphic: the author

The growth of the number of people in the category I ranking continued in the last few years (12%). At the same time the percentage of people ranked in category II decreased by 11%. It is worth highlighting that between 1998 and 2012 in the Austrian civil service, the number of employees with a higher education degree increased only by 3%, while the number of people with a higher education degree trebled in the private sector.221 The reason for this is probably that the positions available in the civil service don’t require a high ratio of employees with a higher education degree.

220 The data show the percentage of positions that could be filled with a category II ranking based on the regulations. The employer assessments contain the employers’ opinion on the positions they think require a higher education qualification or an OKJ qualification. 221 While in 1998 the ratio of people with a higher education degree in the Austrian civil service was 29.2%, this number by 2012 increased to 32.2%. In the private sector during the same period the ratio of people with a higher education degree increased from 4% to 11.8%. It must be added that there was no significant difference between the salaries of people with a higher education degree and an advanced vocational qualification. Source: Das Personal des Bundes 2013 Daten und Fakten Bundes Kanzleramt Österreich, 2013. p. 40

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Categories in public administration % (2006 and 2013) 70% 66%

60% 54%

50% 40% 40% 29% 30%

20%

10% 6% 5%

0% Category I. Category II. Category III. 2006 2013 Source: KSA / Graphic: the author

In the case of professional members of the military service the cancellation of early retirement can be counterbalanced by the support given to those who are forced to leave the military profession in the form of assistance to a second civil service career and in the form of special military reserves. To promote the second civil service career, the Ministry of Defence and the Ministry of National Development signed an agreement about providing support to find new employment for people forced out of military service for reasons beyond their control.222

222 See http://www.honvedelem.hu/cikk/39814 (Date of download: 30 November 2013).

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Other professional characteristics of the personnel

In our research we used a questionnaire to examine the professional characteristics of the different professional systems.223 We found that “... the leading role of a degree in law is diminishing, and a degree in economics (this includes HR management, as well) is taking over. A large proportion of employees have a degree in engineering, education or public administration. Over the years we can see that there are an increasing number of fields from where graduates join the civil service. This diverse range of degrees is probably not present in other employment areas.”224 Opportunities that come from this fact can be exploited with a well functioning knowledge management system. We saw progress in the field of foreign language learning. “Upon examination of the completed foreign language exams, we found the for the 7 languages indicated (Eng- lish, German, French, Russian, Spanish, Italian and Portuguese) altogether 34.1% of the respondents had passed a basic level, 56.2% an intermediate and 9.7% an advanced language exam. [...] In our view [...] the majority of the people who had passed a language exam had no ability to use the language beyond a basic minimum.”225 There is a significant improvement in the area of information technology and computer software. The majority of employees could use software in their daily work (e.g. mailing programmes, Internet browsers, excel sheet and word processing software and operation systems) at an advanced or intermediate level. The percentage of those who don’t use these programs is really insignificant (between 1 and 9.6%). Special programmes and software (e.g. project management software, statistical programmes, FTP, presentation software, file management programmes) are not used by a much higher number (between 21.4 and 81.5%), and 30.8% doesn’t use the registration and administration software employed only in the civil service. The special professional software and computer programmes are also not used by 21.4% of the respondents.226

223 We carried out our “Közszolgálati humán tükör 2013” online survey (with a questionnaire) in the months of October and November 2013. We consider only the results regarding state administration as relevant, therefore information from municipalities and law enforcement bodies was used only as an indicator. For further information regarding the questionnaire see Szakács, Gábor, Dr.: Stratégiai alapú, integrált emberi erőforrás gazdálkodás a közszolgálatban. „KÖZSZOLGÁLATI HUMÁN TÜKÖR 2013”(sectorial summary study), p. 11-18 224 Ibid. p. 58 225 SZAKÁCS, Gábor, DR.: Stratégiai alapú, integrált emberi erőforrás gazdálkodás a közszolgálatban. „KÖZSZOLGÁLATI HUMÁN TÜKÖR 2013” (sectorial summary study) p. 59 226 Ibid. p. 60-61

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7.2. Exposure to the labour market

While we were discussing the different types of mixed legal statuses, we referred several times to the fact that the more advantageous and flexible salaries are justified by the unique labour market exposure of the organisation. This means that the expertise required for operation can be obtained and retained only through the provision of competitive salaries. This is particularly true for autonomous bodies, and therefore we examined average salaries in their case.

Salary ratios (civil service, governmental offi cial salary = 100%)

Civil service, governmental offi cial 100% 100%

Private sector 131% 123%

Autonomous organisations restricted 111% 144%

Autonomous organisations total 142% 161%

Salary ratios – management Salary ratios – average

Source: KSA / Graphic: the author

The results confirmed our expectations that within public administration the salaries are the highest at the autonomous bodies. This is not surprising since from the legislation it can be seen that this service can provide better than average remuneration. The extent of the salary differences, however, could come as a surprise. Salaries at the autonomous bodies can exceed the average public administration salary by 61%.

If we differentiate between the autonomous bodies and examine the state authority autonomous bodies where, just like in other public administration bodies, similar public administration tasks are performed by people primarily with a degree in law or management, and much less expert tasks that are typical in some parts of the private sector, we can see that the 61% salary advantage is reduced to 44% (and from 42% to 11% in the case of leaders). From this – contrary to our expectations – we see that the autonomous bodies that are in state power are the most privileged regarding salaries, despite the fact that their labour market exposure is not different from the average labour market exposure in the sector. This confirms our statement that “[…] it has a negative message

80 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research for the civil service. This regulatory solution carries a judgement in itself and suggests – in a simplified manner – that civil servants working at autonomous bodies...” are less qualified, and therefore less respected experts compared with other governmental officials.227

In the international literature it is mentioned that privileges guaranteed at the autonomous bodies can distort the incentive system of the public sector. The unequal incentives of the public sector can generate financial and employment problems, can make recruitment of talented workers to ministries and other, non-privileged bodies more difficult, and they can cause dissatisfaction and lack of motivation in the workforce at non-autonomous bodies.228 Incentive systems that greatly differ from one another can dismantle the unified view of the public administration in the labour market and can turn public administration itself into an internal labour market.

7.3. Summary

The supply side of the labour market regarding public administration is not black and white today. The effect of the measures that aim to attract younger people is already showing changes in the age group structure of the personnel, primarily on a central level. This shows that it is mostly the central public administration that can provide competitive opportunities, at the same time it is not very fortunate from a career development point of view that labour market entrants concentrate at the highest level of state administration. Therefore a more balanced division would be needed.

Making the personnel mix younger cannot lead to discrimination based on age, not only because of legal restrictions, but also because every generation has it own place and role in the development, preservation and communication of the organisational knowledge base. Similarly to the practice of other nations229 the problem of ageing cannot be nar- rowed down to managing generational change. We need a complex approach that offers a solution for problems adequate for each age group.

It would be advisable to separate the civil service career plan into sections that correspond to different life cycles, since the different life stages have their own challenges and they require different solutions (e.g. upon entry into the labour market it is starting a family and making a home, for the middle aged the balance between work and private life, prior to retirement special health care and mentoring).

227 GYÖRGY, István: Az autonóm szervek személyi állományának közszolgálati jogviszonyáról, P. 34 228 See Rob Laking: Agencies: their Benefits and Risks, OECD Journal on Budgeting. Volume 4. Number 4. OECD, 2005. Quoted by LINDER, Viktória: Egyes független jogállású központi állami szervek személyi állományára vonatkozó jogi szabályozás sajátosságai és humánerőforrás gazdálkodásuk jellegzetességei nemzetközi összehasonlításban, sub-study (manuscript) P. 33 229 E.g. Germany

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One of the main questions of generational change is the transfer of acquired knowledge and experience. Some techniques must be worked out (e.g. launching mentoring programmes and knowledge portfolios) to tackle this issue. Not only the acquisition but also the retention of a qualified, experienced workforce is of great importance. This requires that advantages valuable even on the labour market be provided. It is common knowledge that the civil service has lost its appeal. Its comparative advantages compared with the private sector disappeared either because social developments balanced them (e.g. state pensions) or because the privileges were dissolved for budgetary reasons as the sector became more similar to the private sector (e.g. lifelong employment). The image of the civil service must be rebuilt, together with the benefit system that is the basis of its appeal. However, if we accept a dual approach to HR issues in the civil service, the system of benefits must be adjusted to it accordingly. For the appointed officials a stability greater than the present one and a clear and attainable career plan could be an advantage, because in this way the official is not ex- posed to organisational and operational transformations and the following labour market changes. For contract based personnel a differentiation closer to private sector operation – based on job descriptions and performance – could be an advantage, because it enables talented and motivated young employees at the beginning of their career to earn a salary similar to what they would earn in the private sector. Flexible working schedules and working hours could be another draw, along with a personally tailored career management plan for the development of personal skills in different positions. All of this requires significant transformation, but the organisational cultural background seems to be in place.

Waiting instead of “reform exhaustion” A major percentage of personnel “[…] is absolutely open and is not afraid of the necessary changes, rather they urge their implementation. As someone aptly said, they don’t have the ‘reform exhaustion’ that was typical of previous generations and eras that would undermine initiatives for necessary changes even in the field of HR management. Based on the presented results of the research we can say that a large percentage of workers in civil service would be open to the introduction of a job description based system even if they know little about its main features and how it would affect them (advantages, disadvantages). These employees also support the introduction of salary and ranking system that is based on actual performance and the type of position as well as merit-based career building. At the same time they are against balancing mechanisms, and salary compensation based on social needs. They would support a new solution that would build on the best of both systems because they are aware that for voluntarily assumed responsibilities in service of the public they deserve appropriate compensation that guarantee them security, fair lifelong employment and a living. The mobility indicators we registered during our research show that people who opted for civil service as their workplace are less mobile, and they don’t prefer continuous job description and workplace changes.

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They enter the system at a relatively young age without much external experience, and therefore they wish to have a reliable and predictable career path. Maybe they are different fromtheir predecessors – especially members of generation Z or generation Y – because if they encounter adverse, confusing or non-transparent situations or circumstances, if they have to work in a bad and unfriendly work environment they don’t hesitate to move on. But those people who stay in public administration can face the difficulties and are willing to fight so that the competition is fair and played according to rules.”230

Civil service must serve as the framework for the assertion of certain social preferences, and therefore the opportunities to employ special need employee groups (e.g. expectant and young mothers, people with disabilities) must be examined so that development targets for widening employment opportunities can be set.

In order to verify and monitor the divergence on the grounds of labour market exposure the characteristics of labour market exposure must be set; and besides the job description analysis, the monitoring of the labour market exposure indicators must also be institutionalised.

8. Independent legal branches231

The features that widen and also reduce the distance between the labour code and the civil service law are equally present in the legislation. Civil service law is a separate, special field within the labour code and it is set by its regulatory method. It cannot be considered a separate legal branch, since it regulates relations very similar to that of the labour code. Separating civil service law from the labour code is also not possible because they use a similar set of definitions and legal institutions, and in practice they are within unified jurisdictional framework.232

At the same time will of the (state) legislature at any point in time can be a determining factor, together with the science of law, in establishing the future development path of this legal area. The separation of civil service law as an independent legal area could mean the first

230 SZAKÁCS, Gábor, Dr.: Stratégiai alapú, integrált emberi erőforrás gazdálkodás a közszolgálatban. „K ÖZSZOLGÁLATI HUMÁN TÜKÖR 2013” (sectorial summary study), p. 202-203 231 KUN, Attila − PETROVICS, Zoltán: Based on the sub-study “A közszolgálati jog önálló jogági fejlődésének kérdéséről” 232 Regarding the independent legal branches, opinions differ. There are people who believe that civil service is a separate legal branch, independent from the labour code. István György thinks that civil service law is an independent branch of public law. It regulates the civil service relations as part of the civil service pragmatics where one of the parties is always a state or municipal body that fulfils public tasks. The salary of the officer is financed by the state budget. According to Gyöngyvér Szekendi military service law could be interpreted within the civil service law as an independent (separate) part of it that has relative separation from the legislation governing law enforcement legal statuses.

83 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research steps to the creation of a new legal branch. Therefore in the long run civil service law could become an independent legal branch. The incorporation of similar research results into the science of law and education could be considered a significant step towards independence.

Nevertheless we think that it is not the prerequisite of a well functioning, unified civil service regulation to receive an independent legal status since the existence of a legal branch is not an asset in itself, it is only the expression of the legal system’s structure that is of importance primarily for the study and the teaching of law.

The question of independent legal status became an issue due to the changes in civil law, labour law and civil service law in recent years. Our research confirmed that in addition to an evaluation of civil service within the legal system, it is equally important to explore further dimensions of civil service and to apply an interdisciplinary approach to civil service legal relationships.

9. Final points and recommendations

Our research confirmed that development of the civil service can be accomplished when both the legal regulation and the HR management are taken into consideration.

9.1. Legislation

In all three legal areas examined the basic structural problems can undermine the process of growing similarity.

In the regulation of the public administration civil service – despite the Kttv. and the Gov- ernmental HR Strategy that were created to unify the regulations – the signs of divergence are increasingly noticeable so that they could result in the creation of a new sui generis legal status. This could undermine the efforts to further increase transferability, and it doesn’t support mobility within the system. The drop in the appeal of public administration is primarily visible in positions with an exposure to the labour market, and to counter this effect it is increasingly common that the different bodies apply the legal institutions in a dysfunctional manner.

The further development of legal regulation has primarily two recommended directions to take. One would favour a more unified and harmonised regulation, the other would promote more flexible employment conditions.

9.1.1. Civil service codex

To tackle the widening gap within the civil service a civil service codex could be created that would ensure its unification within general rules to be applied for civil service type

84 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research work, while the necessary differentiation would be ensured through the inclusion of a special provisions section. The general section would stipulate the provisions that should be equally applied for all public administration (law enforcement) bodies and the subjects where divergence can be justified. This section should regulate appointment and (civil service) contractual employment, rules for the ranking and salary system, general rules for civil servant conduct and work performance, disciplinary responsibility and – in the case of appointment – the termination of legal service within the limits of status security, and public administration HR policy.

The chapters in the special provision section could stipulate special rules for the various types of bodies, i.e. special issues related to the legal status of governmental officials, civil servants of autonomous bodies (state power and state administration autonomous bodies, local municipalities), the official members or those with a governmental official status in law enforcement and mixed legal status bodies (NAV). The various ranking and promotion categories – that had until now significantly undermined unified regulation – would be replaced by a common job description system that would also create the foundation for a more unified regulation. The regulation of the professional and the contractual military personnel of the defence forces would remain within an independent legal framework, since special international conventions prescribe it, and this corresponds with the general international practice. At the same time the defence forces should be included in the unified framework as far as HR management is concerned, since there is no reason for the HR functions to be organised otherwise than according to the general model.

9.1.2. Appointment and division of civil service contracts according to principles

In the issue of appointment versus contract the possibility of a civil service employment contract should be examined. This also requires the examination of the principles that would determine how appointments and civil service employment contracts would be decided. It must also be determined what career elements should be included in the appointment legal relationship. Besides this, the governmental service and civil service legal statuses must be examined since in their present form they are more open than closed in nature (e.g. flexible remuneration and legal status termination). These two examples are mentioned because these are the elements where appointment and contractual employment differs the most. This means it is worth considering the idea of a civil service work contract only if there is room for a flexible system. This requires the strengthening of the career aspect of the appointment, which could mean greater stability, more predictable remuneration, more targeted continued training and stricter obligations (e.g. unilateral decision on placement) compared with the present system.

This approach accepts that the “one public body, one legal status” principle is not applicable here. At the same time this method doesn’t accept forced solutions. The starting point for this approach is that civil servants can be divided into two groups: those who are entitled to issue general or special standards, and those who perform the wording and the

85 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research preparation of these standards in merit, as well as people whose activity is different from this, they fulfil tasks related to the operation of the different organisations. The former employees would be appointed, while the latter would be employed with a civil service employment contract. With this separation, public workers who don’t belong to either the teacher or health care worker group could be included in the unified regulation. The last two areas would retain their independence in career plans, but we should examine how they would be connected to the public administration career plans. This way the long- standing problem of the unification of the civil servant–governmental official and the public worker legal statuses could be resolved as well.

For the regulation of appointment and the contractual employment the German and Austrian systems should be studied in detail.

9.2. HR management

The development of HR management is recommended in two areas. On one hand regarding the personnel, and on the other the operation of the system (system management).

9.2.1. Developments affecting personnel

Regarding personnel we need developments that boost personnel performance and the appeal of public administration (labour market competitiveness). These are the following:

– extending job description analysis and evaluations; – reserves; – competence development; – service development.

It is necessary to continue the creation of a job description based system because otherwise strategy-based, integrated HR management and task related personnel management cannot be introduced. The latter also requires the formation and linking together of a job description, task and organisational register. However, the job description analysis and assessment is not a single task, therefore the analysis and evaluation should be institutionalised to ensure regular supervision of the completed job description analyses. An impact study should be performed on the job description system.

The labour force reserve is connected to generational change, which is an international phenomenon. To tackle common problems there are common action plan directions that should be taken into consideration in Hungary as well. These are as follows: – special measures to introduce flexible working hours and a flexible work schedule; – a new approach to education and continued training based on the principle of lifelong learning; – the increasing role of knowledge management, knowledge transfer and mentoring. At the same time generational change shouldn’t result in discrimination based on age.

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The German example should be considered where age related problems are not restricted to generational change. The civil service career plan is divided into sections that correspond to the various stages of life, since these have their own challenges and they require different solutions (e.g. upon entry to the labour market emphasis is on starting a family and creating a home, prior to retirement special health protection, and mentoring come to the forefront).

Besides attracting the younger generation, more emphasis shall be placed in the future on the retention of the middle age group and people who entered the labour market only a few years ago. The internationally used universal method for this issue is personalisation, i.e. a personally tailored career management plan. This is supported by the experience that opportunities for the development of personal skills have an immense attraction. In connection to personalisation we must emphasise talent programmes (that have different incentive systems) and motivation together with personal development. The condition for this is system level management of the individual performance to become an integral part of the HR operation. Consequently, civil servant motivation is enhanced because now they become interested in performance improvement at the given public administration body.

Even though the increase in the ratio of young people is a positive trend, the solving of problems that arise as older generations leave the system (e.g. training of new officers, lack of know-how, experience and prior technical expertise) requires continued attention. Among the possible solutions, planned mobility, the launch of mentoring programmes, the compilation of a knowledge base portfolio, etc. should be included. The introduction of these solutions will be supported by the planned job description system.

We should consider involving the generation that will retire in a few years’ time – as a worthy close to their career – in programmes where the official retires from an active office work, yet agrees to train and mentor young entrants as a part-time position, at a reduced salary. On one hand it reduces the performance pressure resulting from an intense work pace, and on the other hand it provides a proper framework for transferring the know-how and experience accumulated over the years.

Development of competencies remains the central question. Competence development has special importance in three areas. The first is general competence development that promotes horizontal movement of the personnel, the second is the execution of efficient selection techniques and the third is competence development that serves to reduce or eliminate differences between competence levels.

In the case of competence development the example of competence systems already employed elsewhere should be considered. In this officers are registered according to the extent of their competences and if there is a need in any public administration field for that competence, the registered person could be deployed. Selection would be carried out by a professional board. The advantage of this system is that the knowledge and skills of

87 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research the person with the right competences could be deployed even for only a limited period of time therefore training costs could be reduced significantly.

The Hungarian Government Official Corps was established as a common value-based, unified professional order that could be the foundation of a new welfare, social and other service activity. This requires the continued improvement of the institutional system and the building a financing system for the Hungarian Government Official Corps. For the creation of these services it would be advisable to carry out a sociological survey on the life and living conditions of the personnel.

9.2.2. System management

On one hand system management includes the preparation of governmental decisions related to personnel development (which requires a reliable statistical and information system), and one the other hand it monitors the HR activity of the public administration bodies, presupposing a well functioning monitoring system. The condition for the latter is the establishment of a strategy-based, integrated civil service HR management system on the level of the different bodies.

In order to establish a strategy-based, integrated civil service HR management system that can serve as the basis for mobility between the three legal statuses, we have set up a system model that could provide an adequate framework for the modern and efficient HR management of the three legal statuses.233 In the model we have included all the important external and internal factors that are indispensable – to our present knowledge – for efficient HR management. We made the model applicable to the governmental context and connected it with the different governmental functions that serve the purposes of the system’s operation. The coordinated, strategy-based development of this system could create the conceptional framework for the establishment of new civil service career plans.

233 SZAKÁCS, Gábor, DR.: Stratégiai alapú, integrált emberi erőforrás gazdálkodás a közszolgálatban. „KÖZSZOL- GÁLATI HUMÁN TÜKÖR 2013” (sectorial summary study), (manuscript) p. 27

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Integrated system model of the civil service strategy based HR management model

Civil service continued training, examination

Strategy based integrated HR governmental HR management strategy General requirements HR administration legislation

control

monitoring Service centre

haping of HR policy reconciliation of S interests HR IT system plan and HR shaping of organi- systems Work sational culture planning Strategic HR services and activity Compensation and remuneration Compensation Development of civil servicecareer Development Civil service performance management Civil service performance

Methodological support ation ment planning Selection Strategic planning Strategic Continued training, training, Continued Performance assess- Performance Job description evalu-

governmental level organisational level

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ATTILA KUN - ZOLTÁN PETROVICS: THE DEVELOPMENT OF CIVIL SERVICE LAW INTO AN INDEPENDENT BRANCH OF LAW

1. Introduction, research objective

This study aims to provide a comprehensive analysis, primarily of a dogmatic legal nature, of the links between the labour laws of the public and private sectors. This will include the investigation of criteria for becoming an independent branch of law in a comparative context, taking into account today’s trends in the development of law and legal theory, and an analysis of developmental tendencies resulting in the divergence or convergence of civil service law and labour law.

Over the past few decades, the view that there is a divergence between labour law and civil service law has become increasingly widespread and evident.234 Our initial hypothesis is that, as a consequence of the legislative processes of recent years, which had their roots back at the beginning of the 1990s, civil service law has become more and more differentiated from classic labour law. The traditional criteria for being considered as a separate branch of law, namely the object and method of regulation, are both met by Hungar- ian statutory acts regulating legal relationships subject to the rules of civil service. Since Act CXCIX of 2011 on public service officials (hereinafter Kttv.) no longer regards the code of private labour law as one of its background laws, i.e. it has essentially “separated” from Act I of 2012 on the Labour Code (hereinafter Mt.), it has made a move towards developing into an independent branch of law, in spite of the fact that it has adopted many of the provisions and legal institutions of that Act, and bearing in mind all the differences arising from the very nature of civil service. This process is also reinforced by the fact that the regulation of employment relationships subject to the Mt. allows the parties and the social partners to apply two-sided permissive regulation more flexibly and with a wider scope than ever before; however, civil service law does not typically use the method of optionality, and mandatory regulations are still regarded as authoritative. At the same time, the Kttv. retained many of the legal institutions of Act XXII of 1992 on the Labour Code (hereinafter Labour Code of 1992) by applying the original stricter version (e.g. prohibiting derogation), while the Mt. shifted in the opposite direction, towards a more flexible type of regulation.

Thus, it is a legitimate question whether, as a consequence of the legislative processes of the past decades, the statutory acts regulating civil service legal relationships really fit into the framework of an independent branch of law, and whether civil service law meets the

234 GYÖRGY, István – HAZAFI, Zoltán: Közszolgálati életpályák. Budapest, National University of Public Service, 2013. 14.

91 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research content and form requirements that could justify its status as a separate branch of law? If this cannot be confirmed, which stage of development is civil service law in on the way to becoming an independent branch of law? Has the process of becoming an independent branch of law started at all? Or, on the contrary, has civil service law not entered this path, and it is merely a relatively distinct, independent area of labour law in its broad sense?

2. Divergence and convergence of labour law and civil service law in the light of legal dogmatics - theoretical issues regarding the independence of a branch of law

2.1. The concept of civil service law

The subject of our study is civil service law, so this concept has to be clarified first. As a first step, civil service needs to be defined.

As György Gajduschek points out, civil service can be interpreted in at least three different ways. First, it may refer to people working in the public sector, second, to the specific form of employment of such personnel, i.e. the employment system of the public sector, and third, to the system of providing public services.235 In our study, the term refers to the specific form of employment of personnel working in the public sector in its broad sense, i.e. all three occupational categories, as well as all rules pertaining to such legal relationships.

According to Zoltán Magyary, civil service means serving the public without any discrimination, which takes all the employees’ energy and character, requiring them to work with particular obedience and complete devotion, but, at the same time, securing a special legal status for them.236 Magyary makes a clear distinction between public service (civil service) and private service. According to Zoltán Magyary, there are two important aspects drawing a clear line between a civil service legal relationship and a legal relationship in the private sector (i.e. an employment relationship as it is interpreted today). One of these aspects is the legal basis of the relationship: a civil service legal relationship is not established by means of a private contract, but through a unilateral act of public administration, namely appointment. The content of the legal relationship is determined by the general provisions of law, without the possibility of derogation on the basis of individual agreement. A public official only has two choices: to take or not take the job. The other aspect mentioned by Magyary is that “civil service requires complete loyalty and devotion on the part of the employee, all his or her character, the best possible performance, or, under certain circumstances, even his or her life”.237

235 GAJDUSCHEK, György: A magyar közszolgálatról – a szabályok és a tények tükrében. In: FAZEKAS, Marianna (ed.): Új generáció a közigazgatástudományok művelésében. Post-doctoral Conference, 6-7 June 2013 Budapest, Eötvös Loránd University, Faculty of State and Legal Sciences, 2013. 117-118. 236 MAGYARY, Zoltán: Magyar közigazgatás, Budapest, Királyi Magyar Egyetemi Nyomda, 1942. 131-132. 237 Ib. 387-388.

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Zoltán Magyary’s view that civil service means serving the public without any discrimination may lead us to the conclusion that civil servants, in the broadest sense of the word, include the employees of publically owned business entities, since, although such companies are subject to private law, they mostly provide services in the interest of the public, and their activity focuses on serving the public.238 However, we discard the possibility of using this definition, which interprets civil service in a broad sense on a “sociological” basis, and agree with Viktória Linder, who applies the concept of civil service to the categories of employees in an employment-based legal relationship with the state and local governments, referring, at the same time, to the traditional ambivalence of the term in Hungarian use. Civil service in its broader sense covers public employees, judges, prosecutors, the professional members of the armed forces, as well as public administration personnel,239 whereas civil service in its narrower sense only refers to the latter, i.e. public administration personnel. Linder defines civil service as an activity “in which those in a legal relationship subject to public law, i.e. a civil service legal relationship, perform their public tasks in compliance with special legal regulations on behalf of the state and the local governments, for the benefit and in service of the public, in order to satisfy public needs, and, in performing those tasks, they may exercise certain public powers and render public services.”240 As István Horváth points out, civil service is actually an umbrella term incorporating all employment relationships on the basis of which the state and the local governments fulfil the obligations imposed on them by law.241 Civil public service in its broadest sense is interpreted to incorporate the legal status of public employees as well, agreeing with Tamás Prugberger, who uses this as a premise in his comparative work “Európai és magyar összehasonlító munka- és közszolgálati jog”.242

238 See the section Employment relationships with publicly owned employers below. 239 See the Kttv., Act XXXIII of 1992 on the legal status of civil servants, Act CCV of 2012 on the legal status of military personnel (hereinafter Hjt.), Act XLIII of 1996 on the service status of the professional members of the armed services (hereinafter Hszt.), Act CLXXIV of 2011 on the legal status of the Prosecutor General, prosecutors and other employees of the prosecution authority, and the career model for prosecutors (hereinafter Üjt.), Act CLXII of 2011 on the legal status and remuneration of judges (hereinafter Bjt.), and Act LXVIII of 1997 on the service status of judiciary employees (hereinafter Iasz.). 240 LINDER, Viktória: Személyzeti politika – humánstratégia a közigazgatásban. Doctoral thesis, Budapest, 2010. 70. http://www.kozigkut.hu/doc/linder_phd_10szept.pdf (Date of download: 16 November 2013). According to a much wider interpretation of civil service, civil services include activities involving the performance of tasks in the interest of the public (see VADÁSZ, János: Közszolgálati reform. A közszolgálat emberi erőforrá- sainak megújítása. Budapest, Kossuth, 2006. 14.). 241 HORVÁTH, István: A közszolgálat munkajoga. In: GYULAVÁRI Tamás (ed.): Munkajog. Budapest, ELTE Eötvös, 2013. 561. For the interpretation of civil service see also HORVÁTH, István: Az elvárások és a realitás. A magyar közszolgálati munkajog jövője – különös tekintettel az EU-tagállamok jogalkotására I. 11 Jura 2005/2. 84-85., HAZAFI, Zoltán: Közszolgálati jogunk a változó nemzetközi és hazai térben (de lege lata, de lege ferenda). Doc- toral thesis, 8-9. 242 See PRUGBERGER, Tamás: Európai és magyar összehasonlító munka- és közszolgálati jog. Budapest, CompLex, 2006. Cf. PRUGBERGER, Tamás: A közszolgálat, a közalkalmazás és a köztisztviselés a tervbe vett új szabályozás tükrében. Magyar Közigazgatás, 1991/10. 908-917., KENDERES, György – PRUGBERGER, Tamás: A közalkalma- zotti és a köztisztviselői jogviszony új jogi szabályozása. Magyar Közigazgatás, 1993/6. 329-335., PRUGBERGER, Tamás: A közszolgálati jog újraszabásának kezdéséhez. Magyar Közigazgatás, 1998/10. 626-630. PRUGBERGER, Tamás: A közszolgálati jog újraszabályozásának problémája. Új Magyar Közigazgatás, 2010/5. 43-50. Note that in the latter study Tamás Prugberger argued for a single act governing the legal relationships of both public employees and civil servants.

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Based on the above, civil service law means the totality of all norms applicable to civil service, i.e. civil service employment relationships in their broad sense.243

2.2. The independence of a branch of law in general

In the Roman-Germanic-based legal culture of continental Europe, the division of the legal system into branches of law seems to be general.244 The classification of the legal system into branches of law is based on content differences between the regulations (object of regulation) and the specific methods used by them.245 An independent branch of law exists if the set of legal regulations in question applies to sufficiently homogeneous legal relationships, and the method of regulation is also sufficiently characteristic and consistent.246

A branch of law is a set of qualitatively distinct legal regulations with a specific structure, governing the behaviour of legal subjects with particular contents and methods in an area of social coexistence defined by law.247 According to the definition of the Encyclopaedia of Law, a branch of law is “a separate segment of the legal system, a set of legal regulations that are different from other sets of legal regulations from a legal dogmatic perspective based on aspects of legal coherence.”248

Thus, within the continental legal systems, the division into various branches of law seems to be obvious when describing the horizontal/content structure of those systems. The division of the legal system into branches of law is based on the recognition that there are certain legal norms which show close content-based links and similarities, and, as a result, coherent groups of interrelated regulations can be set up based on the common concepts and identical principles concerning the application and interpretation of law. Traditionally, there are two aspects, namely the object and method of legal regulation, that are considered to be the basis of division into various branches of law. There is, however, some discrepancy regarding whether the object of regulation is constituted by social or real-life conditions, or human behaviour itself. We do not want to take a position in this dispute since it is not of particular importance for our study. Nevertheless, such approaches regard branches of law as relatively distinct segments of the legal system which incorporate a coherent set of interrelated legal norms, and which govern identical or similar behaviours (or social conditions) using a uniform methodology..249

243 Instead of civil service law, István Horváth speaks of the special labour law of public service or, with the same content, the public law of labour (see HORVÁTH op. cit. (2013) 8. 561.). 244 SZABÓ, Miklós: Jogi alapfogalmak. Miskolc, Bíbor, 2012. 37. 245 SZILÁGYI, Péter: Jogi alaptan. Osiris, Budapest, 2006. 365., SZABÓ: op. cit. 11. 37., SZABÓ, Imre: Jogelmélet. Buda- pest, Közgazdasági és Jogi Könyvkiadó, 1977. 62. 246 BURIÁN, László – CZIGLER, Dezső Tamás – KECSKÉS, László – VÖRÖS, Imre: Európai és magyar nemzetközi kollíziós magánjog. Budapest, KRIM Bt., 2010. 36. 247 VISEGRÁDY, Antal: Jog- és állambölcselet. Budapest-Pécs, Dialóg Campus, 2002. 89-90. 248 LAMM, Vanda – PESCHKA Vilmos – ÁDÁM Antal (ed.): Jogi lexikon. Budapest, KJK-Kerszöv, 1999. 292-293. 249 SZILÁGYI, Péter: Jogi alaptan. ELTE Eötvös, Budapest, 2011, 364., vö. SZABÓ Miklós (szerk.): Bevezetés a jog- és államtudományokba. Miskolc, Bíbor, 2006. 112.

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Péter Szilágyi points out that the existence of a branch of law, i.e. the identical nature of the relevant norms primarily manifests itself in the identity or similarity of the typical behaviours regulated. According to Szilágyi, the method of regulation can be recognised based on the mandatory or permissive nature of the acts. Furthermore, the identity of the regulatory methodology also incorporates a characteristic wording of norms, particular sanctions and specific patterns of responsibility.250 Szilágyi claims there is a specific internal structure within each branch of law based on the identical nature of the legal norms, as well as a set of common terms with identical meanings, specific types of legal relationships, specific applications of law, and branch-specific principles of legal interpretation.251

Apart from making a distinction on the basis of the object and method of regulation, Pé- ter Szigeti also emphasises the importance of dogmatic solutions, particular regulatory principles, patterns of responsibility, legal principles, concept generalisations and legal methodology; at the same time, as he claims, dogmatic solutions and concept schemes should be considered as the third criterion (in addition to the object and method of regulation) for being assigned to a branch of law. Szigeti also points out that an independent branch of law can only exist if it is relatively homogeneous and displays a quantitative accumulation, and qualitative differentiation, of sets of legal norms applicable to distinct forms of behaviour. However, below a certain limit, identical or similar rules only justify the identification of a specific area of law or a set of rules. Finally, Péter Szigeti claims that the question of branches of law also depends on other factors such as the traditions of the given legal system.252

Miklós Szabó does not consider the object and method of regulation as an absolutely decisive factor, and adds a third item, a so-called disciplinary element. He claims that the division of the legal system is also facilitated by legal science itself and legal education, in order to ensure that “this unmanageable complex of legal regulations can be understood, taught and learnt”.253 The fact that the branches of law cover the whole of the legal system “does not arise from an intrinsic need of the legal system, but from the endeavour of science and education to assign a ‘manager’ to all segments of law”. 254

These approaches also demonstrate that the criteria that are considered traditional in Hungary for becoming a branch of law include relative aspects, and, in addition to legal factors in their narrow sense, other, subjective elements also play a key role. Even if we assume that the criteria for becoming a branch of law mentioned earlier are objective,

250 SZILÁGYI op. cit. (2011) 16. 366. According to Mihály Samu, the content and method of regulation, the regulated legal relationships, the specific applications of law, and the patterns of responsibility are of primary importance for classification into a branch of law (see SAMU, Mihály: A szocialista jogrendszer tagozódásának alapja. Budapest, Közgazdasági és Jogi Könyvkiadó, 1964, 192.). Cf. PRUGBERGER, Tamás: A gazdasági szervezetek sz- abályozásának jogrendszertani kérdései (különös tekintettel a szövetkezeti és az agrár viszonyokra). Budapest, Szövetkezeti Kutató Intézet, Közlemények 133. sz. 1978. 251 SZILÁGYI op. cit. (2011) 16. 366. 252 SZIGETI, Péter: Jogtani és államtani alapvonalak. Budapest, Rejtjel, 2002. 131-132. 253 SZABÓ op. cit. (2006) 16. 113. 254 Ib.

95 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research we cannot ignore certain subjective circumstances. Some of the most blatant of these are the quantity of regulations, the decisive role of traditions in a legal system (and the corresponding prevailing approaches), and the subjectivity of law-making.

The existence of a branch of law depends, on the one hand, on whether the presence of interrelated norms within the given legal system reaches a “certain” degree. We may logically ask: how can this quantitative criterion be determined, or is it possible at all to define a threshold that identical or similar rules need to reach in order to be considered an independent branch of law? Theory has so far failed to answer this question. As we see it, it is obviously impossible to exactly quantify this threshold.

Mentioning the traditions of the legal system also represents a move towards relativisation and suggests that, in a given legal environment, the acceptance or non-acceptance of a set of rules as an independent branch of law does not necessarily depend on the fulfilment or non-fulfilment of the criteria mentioned above. Therefore, the “branch of law” status of a set of legal norms is neither “predestined”, nor necessarily applicable. It is dependent on the status of the given legal system, the socio-economic conditions, the positions taken by legal scientists, and the opinions of lawmakers.

The subjectivity of lawmakers manifests itself, on the one hand, in qualifying certain real- life conditions (social conditions) as similar, identical or different, and on the other hand in choosing a regulatory method for the real-life conditions that need to be regulated. It can be concluded that the regulations governing the legal relationship of public service officials and those governing an employment relationship use identical or similar solutions, from the point of view of legal dogmatics or methodology, for some legal institutions and very different ones for others. It would be legitimate to ask why lawmakers use different solutions in one case and similar or identical ones in the other. If a regulated real-life condition is found different, it would be logical to also define different rules for the legal institutions performing a similar function. And if lawmakers were led by the similarity or identity of those real-life conditions, similar or identical solutions would have to be used. However, neither of these approaches exclusively prevails in practice: the Kttv. and the Mt. include identical regulations in some cases (see the rules for legal declarations, invalidity or liability for damages) and different ones in other cases (rules for remuneration, collective agreements). The choice of regulatory methodology, as a criterion depending on subjective evaluation by the lawmaker, may be exemplified by the recent shift in emphasis in private labour law from a unilaterally permissive regulatory methodology towards a bilaterally permissive scheme.

Note, however, that not all sets of legal regulations can be considered to be independent branches of law. Legal dogmatics defines an area of law “as a more or less interrelated and distinct set of legal norms that is wider than a legal institution but does not meet the criteria for being categorised as a branch of law.” An area of law may manifest itself in two forms: either within a branch of law, or partially covering more than one branch of law (the latter is sometimes referred to as a “quasi branch of law”). Péter Szilágyi thinks the appearance of areas of law is possible, on the one hand, within a branch of law, i.e. between

96 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research norms with closer links and similarities compared to other norms of the given branch of law, and, on the other hand, in the case of statutory acts partially covering more than one branch of law, applicable to behaviours with different content but with identical or similar conditions. The separation of a given area of law may indicate the beginning of the establishment of a branch of law (although the process does not necessarily lead to this result). Szilágyi is right to mention that relative separation in the case of areas of law within a given branch of law may be motivated by politics or specific interventions by the state. This means that the legal system does not break up into branches of law, but it is artificially split. This is precisely the reason why new branches of law constantly emerge from the large complexity of legal norms. Actually, this process generates disputes about the independence and subject matter of certain branches of law.255 We agree with Péter Szilágyi that, in light of the above, neither the division of the legal system, nor assignment to a certain branch of law may be a purely theoretical question. These are, or may be, influenced by politics and legal policy at least to the same extent as by legal theory and legal dogmatics.256 This may lead us to the extremely relativistic or, by way of euphemism, pragmatic conclusion that the definition of all branches and areas of law as such, including the categorisation of labour law or civil service law within the legal system, is ultimately dependent on decisions by politicians or lawmakers. Therefore, assignment to a branch of law is not something that will last forever.257

Above we assumed that there are certain criteria allowing us to delimit certain segments of the legal system from the rest of it (branches of law). At the same time, Miklós Szabó asks the question: is a division into branches of law theoretically justified? In his view, it is not even necessary to determine these criteria; it is sufficient to define which branches of law are commonly used, and what are the aspects that make a difference between each of them.258 At this point, we are faced with the relativisation of not only the criteria for a branch of law, but also that of the whole issue of such a categorisation. Branches of law are the result of the development of legal dogmatics. This means that they exert an influence in law-making, law application, legal science and legal education as well.

It must be mentioned that any legal division is subject to change: new branches of law may emerge, or new areas of law may be added to existing ones. Changes in the system of the branches of law are often attributable to the role of politics or interventions by the state, meaning that the legal system does not only break up by itself, but is also artificially split.259

The relevance of the division of the legal system into branches of law is today disputed by many, claiming that its importance has diminished by now. This argumentation is further supported by the fact that the two aforementioned criteria for division into branches of law were adopted by legal scholars from the Soviet Union during the com-

255 SZILÁGYI op. cit. (2011) 16. 367. 256 Ib. 368. 257 SZABÓ op. cit. (2012) 11. 112. 258 Ib. 259 SZILÁGYI op. cit. (2006) 12. 367.

97 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research munist regime. 260 Also, a very clear-cut distinction between branches of law is typically of primary importance for socialist and other etatist state systems.

Legal science typically endeavours to demonstrate the relativisation of the importance of division into branches of law.261 For instance, András Jakab claims that making a theoretical distinction between various branches of law is problematic from many perspectives and should be viewed with a hint of scepticism as there are no generally accepted criteria for this.262 According to Jakab, no criteria acceptable to legal theorists can be defined for making a distinction between branches of law and for determining independent branches of law, because the existence of those branches “is more based on aspects of scientific sociology and universal organisation, ad hoc concepts by lawmakers for creating a new law, generally accepted views (among jurists) regarding social importance, and (quite illogical) traditional approaches”.263 Similarly ques- tioning the importance of the branches of law, László Bodó claims (quoting György Kenderes) that “a distinction into branches of law, in its unrealistic pure form, only appears in theory and at the level of legal education; those branches of law are closely interwoven in practice and exert their influence through their interactions with one another.”264

Based on the above, it is safe to say that, albeit branches of law are undoubtedly important for structuring of the legal system, for legal science and for legal education, they do not represent any absolute value. Division into branches of law and the fact that certain sets of interrelated legal norms are classified into branches of law is, in our view, primarily of a functional importance. Therefore, the concept of branches of law helps us to orientate in the legal system and has a vital role in legal science and legal education.

2.3. Private law and public law? - Labour law and civil service law?

In most legal systems, the classic distinction between public law and private law still exerts an influence.265 As far as the distinction between civil service law and labour law

260 JAKAB, András: A magyar jogrendszer szerkezete. Pécs, Dialóg Campus, 2007. 220. (2007a). Jakab claims that the two aforementioned criteria were first identified by S. F. Keczekian (see KECZEKIAN, S. F.: K voprosszu o razlicsii csasztnogo i publicsnogo prava. Harkov, 1927. 25.), and were later adopted by all Hungarian socialist textbooks on state and legal theory [quoted in JAKAB, András: A szocializmus jogdogmatikai hagyatékának néhány eleméről. Iustum Aequum Salutare III. 2007/1. 208. 95 lbj. (2007b)]. See also SZÁSZY, István: Nemzet- közi munkajog. Budapest, Közgazdasági és Jogi Könyvkiadó, 1969. 16-18. és 21-22. 261 E.g. JAKAB op. cit. (2007a) 27. 207-219. 262 Jakab op. cit. (2007a) 27. 222-224. For the dispute, see Jakab, András: A jogrendszer horizontális tagozódása, 11 Jura 2005/2. 14-15. 91-100.; Ádám, Antal: Comments on a study by András Jakab entitled “A jogrendszer horizontális tagozódása” , 11 Jura 2005/2. 14-15. 191-193.; Jakab, András: A response to the comments of Antal Ádám, 11 Jura 2005/2. 14-15., 194-197. 263 JAKAB op. cit. (2007b) 27. 212. 264 KENDERES, György: A munkaszerződés hazai szabályozásának alapkérdései. Miskolc, Novotni Foundation, 2007. 25.; quoted in BODÓ, Lászl ó: A polgári jog és a munkajog összehasonlítása az alapelvek tükrében. Debreceni Jogi Műhely, 2012. http://www.debrecenijogimuhely.hu (Date of download: 15 August 2013). 265 KISS, György: Munkajog. Budapest, Osiris, 2005. 23. According to the traditions of law, the distinction was introduced by Ulpianus by making a difference between ius publicum and ius privatum. Mentioned in: SZABÓ op. cit. (2012) 11. 37. See: “Publicum ius est quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem” D 1.1.1.2.

98 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research is concerned, it is often argued that the former is part of public law, whereas the latter belongs to private law, claiming that civil service law represents the interests and functions of the state (public bodies) and local governments (local bodies).266 At the same time, András Jakab states that “this division has never been complete and consistent”, and provides detailed proof of the unacceptability of all classic approaches described in legal theory (see interest theory; subordination theory; subject theory; trustee theory; disposal theory; combination theories).267 Apart from that, András Jakab denies the possibility, and necessity, of distinctly separating public law and private law from the point of view of positive law and law application as well. As a conclusion that is also acceptable for us, he claims that “such separation is irrelevant for positive law, obscure from a dogmatic perspective, and out-of-date in its political motivation.” Furthermore, he states that the division is “simply a traditional distinction, with many inconsistencies and contingencies.”268

The analysis of András Jakab referenced above has decisive importance for those branches of law that share the characteristics of both public law and private law. La- bour law is one of those branches of law269, and therefore it is described in literature as an overlapping special branch of law270 or as a mixed special branch of law271. We agree with the view of György Kenderes who claims labour law is not purely private law but a peculiar branch of law interwoven with elements of public law.272 As György Kiss puts it, “labour law gradually distinguished itself from classic private law, without, however, entirely discarding all its principles and values.”273 In his work analysing the dogmatic features of labour law, Márton Leó Zaccaria also states that, according to today’s prevailing views in literature, labour law is not purely private law but “only akin to civil law, a unique, peculiar, independent branch of law, sharing many characteristics with contract law.”274 Reference literature contains several similar claims on civil service law as wel. For instance, Gábor Mély pataki adequately states that civil service law balances like a tightrope walker between public law and private law.”275 István Horváth admits that pub-

266 E.g. GYÖRGY, István: Közszolgálati jog. Budapest, HVG-Orac, 2007. 45. 267 For theories regarding the differentiation between public law and private law, see also MOÓR, Gyula: A jogrendszer tagozódásának problémája. Budapest, Magyar Tudományos Akadémia, 1937. 268 JAKAB op. cit. (2007a) 27. 207-219. 269 Cf. SZLADITS, Károly: A magyar magánjog vázlata: második rész. Budapest, Grill Károly Könyvkiadó vállalat 1933. 234-254. (Chapter entitled “A munka jogviszonyai”). 270 Tamás Sárközy introduced in Hungarian legal science the category of overlapping branches of law. SÁRKÖZY, Tamás: A vállalati jog, mint jogágazat problémájához. Jogtudományi Közlöny 1979/12, 795-805. Incidentally, as András Jakab points out, the concept itself is of Soviet origin. JAKAB op. cit. (2007a) 27. 222. 271 PRUGBERGER op. cit. (2006) 9. 44. 272 KENDERES, György: A munkajogi és polgári jogi szabályozás viszonyának egyes alapkérdései. Jogtudományi Közlöny, 2001/2, 113-120. Note that the clear convergence of the Labour Code towards private law has not, at the same time, diminished the number of public law elements in private labour law. 273 KISS op. cit. (2005) 32. 15. 274 ZACCARIA, Márton Leó: Egy „keresztülfekvő” jogág jellemzői – értekezés a magyar munkajog dogmatikai sajá- tosságairól. Glossa Iuridica – Vol II., Issue 1, 118-122., www.glossaiuridica.hu (Date of download: 1 September 2013). 275 MÉLYPATAKI, Gábor: Változó közszolgálati dogmatika az új közszolgálati törvény fényében. Új Magyar Köz- igazgatás, CompLex, 2012/4, 62.

99 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research lic law and private law coexist in civil service law by saying that in the public sector state powers are exercised within the framework of labour law.276

As we see it, the question whether civil service law is an independent branch of law also depends on the way we look at labour law itself: is it regarded as an independent branch of law or as part of civil law. If, in line with the above, we accept labour law as an independent, mixed or overlapping, branch of law277, then civil service law can and, in our view, should be included in this branch of law, primarily precisely due to its mixed nature (private law and public law) and the very similar regulatory object (see below). If labour law were considered entirely as part of civil law, it would, of course, be more appropriate to raise the question of thinking of civil service law as an independent branch of law. Although it is beyond dispute that labour law is rooted in private law in its broad sense278, it cannot be entirely considered to be part of civil law from the points of view of either law-making or legal theory. At the level of law-making, this is also confirmed by the fact that, after many disputes, the new Ptk. (Act V of 2013 on the Civil Code) does not make a mention of employment contracts in any form and does not make a reference to labour law. Moreover, the new Labour Code also stipulates the use of specific rules of the Ptk. (Act IV of 1959 on the Civil Code), meaning that the Ptk. is not made into a generally underlying law.279

This means that trying to differentiate civil service law from labour law on the basis of the private law-public law distinction would be a mistake, for at least two reasons. First, the distinction between private law and public law is not (and has never been) consistent, stable or categorical in itself. Second, even if we accept some sort of separability between private law and public law, labour law and civil service law both contain a large variety of elements from both private law and public law alike. In labour law, a part of civics in its broad sense, the elements of private law have a higher priority 280, whereas in civil service law this is true of the elements of public law, however this does not mean any exclusivity or homogeneity. Labour law in its broad sense, as a truly mixed special law, may logically

276 HORVÁTH, István: Rendszerváltozás és változó körülmények. Magyar Közigazgatás 1990/8, 703-709. 277 Analysing the relevant reference literature, Márton Leó Zaccaria also reaches the same conclusion. ZACCARIA op. cit. 41. 122. See also: “while labour law is an independent branch of law (predestined by the object and method of regulation), it cannot be treated as entirely separate from civil law.” BODÓ op. cit. 31. 1. 278 Cf. KISS, György: Koncepcióváltás a magyar munkajogban? Megjegyzések a 2012. évi I. törvényhez. In: Fol- low-up publication on the conference “Dillemmas of the new Labour Code, KRE ÁJK, Budapest, 2013. 279 Cf. KUN, Attila: A munkajogi és polgári jogi reform „útkereszteződései” - az Mt. és a Ptk. „se vele, se nélküle” viszonyáról. In: GRAD-GYENGE, Anikó (ed.): Szociális elemek az új Ptk.-ban. Budapest, KRE ÁJK, 2013. 189-207.; KISS, György: Az új Ptk. és a munkajogi szabályozás, különös tekintettel az egyéni munkaszerződésekre. In: A munkajog és a polgári jog kodifikációs és funkcionális összefüggései. Miskolc, Novotni Foundation for the Development of Private Law, 2001. 205. 280 Cf. KISS op. cit. (2013) 45. In this study, Kiss claims that labour law is fundamentally a part of the system of private law. In another study, Kiss points out more emphatically that, since labour law is characterised by a special way of thinking, it cannot be regarded as purely a branch of law within private law or, possibly, a part of contract law. KISS, György: Az új Ptk. és a munkajogi szabályozás, különös tekintettel az egyéni munkaszerződésekre, Polgári Jogi Kodifikáció, 2000/1.

100 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research cover both private labour law and civil service law (since both contain a variety of elements from public law and private law alike).

In the world of work, the classic distinction between public law and private law, which we discussed above, manifests itself in the existence of, to put it simply, two large groups of legal relationships: work in the economic sector (competitive sector) is performed within the framework of employment relationships, while work in the public sector is based on civil service legal relationships. There are many similarities between these two groups of legal relationships, but there are significant differences as well. For some experts it is evident today that these two types of legal relationships are regulated by different branches of law: work in the economic sector is subject to labour law, whereas the legal status of public sector employees is governed by civil service law.281

Furthermore, György Kiss makes a difference between a broad and a narrow interpretation of labour law. In the broad sense, labour law is an umbrella term covering the private law of labour and civil service as the public law of labour. However, interpreting labour law in its narrow sense, and identifying labour law as only relating to private labour law, civil service law does not constitute a part of this branch of law.282 At the same time, the status of these areas as independent branches of law is not nearly so evident.

György Kiss concludes that, since an exact definition of labour law-based legal relationships or civil service legal relationships (and the distinction between the two) is not present in a number of legal systems, the content elements of such legal relationships are often addressed through the description of the main characteristics of the subjective positions. On the employer side of a labour law-based employment relationship there is a “private party” operating in a specific legal form. The employer in a civil service legal relationship, on the other hand, is the state or another body representing the authority of the state or a local public organisation, either directly or indirectly. The latter aspect may lead us to consider civil service law to be separate from labour law, clearly associated with public law (although even public law-based approaches to civil service law recognise the close links between labour law and civil service law).283

When evaluating the independence of civil service law, the position of the operator as an entity closely related to the subjects is also often quoted as a distinguishing factor. This means that public sector employees work for entities that are, wholly or partly, operated by the public.284 Even though this statement is correct in itself, it must be noted that the same is true of several employment relationships that are subject to private labour law. Examples of this are employment relationships established with publicly owned employ- ers285, for which the Labour Code includes specific provisions different from the general

281 Közigazgatási Alapvizsga Tankönyv. Budapest, Nemzeti Közigazgatási Intézet, 2012. 68-69. 282 KISS op. cit. (2005) 32. 23. 283 E.g. GYÖRGY op. cit. 33. 284 Ib. 15. 285 Sections 204-207 of the Labour Code.

101 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research ones, but this fact itself does not tear such employment relationships away from the cor- pus of labour law. Applicable regulations in this field primarily include labour law restrictions related to the use of public funds, without, however, extending any advantages or privileges arising from a legal status as a civil servant to such employees.286

As we see it, although there are major regulatory divergences arising from the different subjective positions of these two areas, these do not necessarily justify a division into two independent branches of law. Employers in the public sector, in addition to their other responsibilities, ultimately perform all classic functions of an employer. Kiss also points out that legal developments in civil service increasingly show the loosening of public law- based conditions and are getting closer to private labour law. Incidentally, Kiss also names the distinction between public law and private law as one of the reasons why dependent work activities can be regulated along the principles of either public law or private law. However, he notes that the borders between the two areas are quite unclear in many cases.287 Mélypataki claims that, even if civil service law is regarded as part of public law, it must be interpreted as part of the public law of labour law288, “and by no means independent in itself.”289

2.4. Labour law and civil service law in the light of two classic criteria for division into branches of law: distinct objects and methods of regulation When we accept the classic criteria for division into branches of law as authoritative (different regulatory object and specific method), the following conclusions can be drawn.

2.4.1. The object of regulation

The object of a civil service legal relationship, the nature of the regulated social relations, is very similar to that of a private employment relationship: both regulate a kind of “dependent” work activity. Therefore, the dogmatic basis for differentiating between civil service legal relationships and private employment relationships is disputable in that both labour laws are the manifestations of “dependent” work.290 If dependent work for someone else is considered to be the key criterion distinguishing between labour law- based employment relationships and other work-related legal relationships, a differentiation between private labour law and civil service law is irrelevant.291 This means that the subject matter of labour law in its broad sense includes all legal relationships in which dependent work is carried out for someone else, irrespective of the legal status of the employer. Accordingly, labour law in its broad sense incorporates civil service law as well.292

286 Cf. GYÖRGY op. cit. 33. 18. 287 KISS op. cit. (2005) 32. 23-30. 288 Cf. PRUGBERGER op. cit. (2006) 9. 43-47. 289 MÉLYPATAKI op. cit. 42. 64. 290 KISS op. cit. (2005) 32. 21.; cf. KISS op. cit. (2001) 46. 198. 291 KISS op. cit. (2005) 32. 22-23. 292 HAJDÚ, József – KUN, Attila: Munkajog I. Budapest, Patrocinium, 2012. Chapter I, Section 1.1.

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According to Gyulavári, being employed in the public sector is “essentially an employment relationship.”293 Gajduschek points out in connection with civil service legal relationships that they are “a kind of employment relationship”.294 A distinction between labour law in its narrow sense (labour law of the private sector) and civil service law can be better interpreted within this comprehensive branch of law (labour law) (Gyulavári describes this as the separation of labour law regulations295). Gábor Mélypataki argues that “labour law and civil service law are like egg yolk and egg white: they belong together”, and are combined into a specific whole.296 Thus, if a branch of law is defined as “the totality of all norms regulating identical social relationships”297, describing civil service law as a distinct branch of law does not seem to be justified as the regulated behaviour is identical or very similar in nature. According to the literature on labour law, it is erroneous to make an artificial distinction between areas of law governing very similar real-life conditions.298

In a civil service legal relationship, the provider of the service is in a position of power vis-a-vis the employee based on statutory provisions.299 Combined with a significant limitation of the autonomy of will of the parties, this kind of subordination represents a significant difference from the coordinated relations and autonomy of will characteristic of private labour law. It must also be remembered, however, that, in spite of the coordinated conditions specified by law, there is a subordinate relationship between the employer and the employee, making the relationship very similar to what is seen in civil service. Thus, subordination is also a common characteristic of both types of employment relationships since, as explained above, both legal relationships reflect “dependent” work activities. For public service employees, subordination does not at the same time lead to vulnerability, because the mostly mandatory rules stipulated in civil service laws provide a similar level of protection as the mix of contractual and legal regulations in the case of private employment relationships. It can further be added that, in many respects, the level of protection provided by civil service law is actually higher than in the case of private employment relationships, partly based on the logic of comparative advantages300, partly by enforcing the principle of state provisions.301

293 GYULAVÁRI, Tamás (ed.): Munkajog. Budapest, ELTE Eötvös, 2012. 45. 294 GAJDUSCHEK, György: A közhivatal viseléséhez való jog. In: RIXER, Ádám (ed.): Állam és közösség. Budapest, KRE ÁJK Lőrincz Lajos Közjogi Kutatóműhely, 2012. 264. 295 GYULAVÁRI op. cit. 60. 45. 296 MÉLYPATAKI op. cit. 42. 61-65. Tamás Prugberger, as the reviewer of this study, adequately points out that the egg shell in this case is civil law itself (see PRUGBERGER, Tamás: Lektori vélemény Kun Attila-Petrovics Zoltán: A közszolgálati jog önálló fejlődésének kérdéseiről c. tanulmányról. Manuscript, 2013. 3.). 297 Cf. SZILÁGYI op. cit. 365. 298 ZACCARIA op. cit. 41. 120.; MÉLYPATAKI op. cit. 42. 64. 299 GYÖRGY op. cit. 33. 46. 300 HORVÁTH, István: „Diagnózis és terápia” Javaslat a közszolgálat munkajogi szabályozásának reformjára – figyelemmel az EU-tagállamok jogalkotására és a hazai helyzetükre. Doctoral thesis, Budapest, 2006. 21. http://doktori-iskola.ajk.pte.hu/files/tiny_mce/File/Archiv2/Horvath_Istvan_doktori_ertekezes.pdf (Date of download: 16 November 2013). 301 Ib. 196.

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2.4.2. The method of regulation

The method of regulation is less homogenous in the two areas. Methodological differences in the regulation of civil service legal relationships mostly arise from the service of the public. Supiot described two alternative approaches to serving the public. Ac- cording to the so-called organic (or status-based) approach, civil service is an activity with a direct, or at least an indirect, state origin, meaning that it is based on the rules of public law. According to the functional approach, on the other hand, civil service refers to an activity representing a function of public interest that is of prominent importance for a given society. However, such an activity may be performed by either a public organisation or a private entity.302 From these two alternatives, Morris argues for the relevance of the functional approach, which dissolves and moderates the strong status-oriented distinction between the public and private sectors, meaning that she does not regard the differences between the regulatory methods of the two sectors as characteristic.303

According to the more traditional organic approach, civil service primarily means that, compared to private labour law, the parties’ autonomy is more limited.

The employers’ powers are limited in several respects. This results from the regulatory (“constitutional”) role of the state, as a “qualified” employer, the use of public funds, and the requirement of democratic accountability. These aspects lead to a more limited nature of several employer functions in civil service. For instance, tasks related to public authority may not be delegated within the organisation in an unlimited way, public funds are less suited for the provision of benefits based on profits, interests or discretionary powers, it is “a matter of public interest” to investigate any of- fences of civil servants (not just a personal matter of the employer and the employee), etc. Labour law in the private sector generally grants a much higher level of employer autonomy from the above aspects. The limitation of autonomy is also noticeable on the civil servant’s part: the possibility of individual self-determination is limited, or missing altogether, in certain areas.304 For example, concerning the establishment of a civil service legal relationship, an appointment is a “relatively one-sided legal declaration”, and the discretion of the civil servant is limited to the acceptance or rejection of the appointment.305 Mélypataki underlines the word “relatively” from the above statement by Kiss (meaning that an appointment is legally completed only after its acceptance).306

302 Supiot’s distinction quoted by: MORRIS, Gillian S.: Employment in Public Services: The Case for Special Treat- ment, Oxford Journal of Legal Studies, Vol. 20, No. 2, 2000. 167-183. 303 MORRIS op. cit. 69. 173. 304 This is graphically illustrated by the fact that the right to work and the right to fill a public office, as basic rights, are already different in their scope. The right to fill a public office is rather limited. See on this: Para- graph 1 of Article XII and Paragraph 8 of Article XXIII of the Fundamental Law. Cf. GAJDUSCHEK op. cit. (2012) 61. 263-280. 305 In more detail: KISS op. cit. (2005) 32. 23-30. 306 MÉLYPATAKI op. cit. 42. 62.

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Speaking of this, it is appropriate to refer to Zoltán Magyary’s view that “before public administration law came into being, professional civil service based on voluntary acceptance had been seen as a simple contract of private law, and, consequently, the legal relationship had been considered to be of a mixed type based on contractual theory”.307 Magyary thinks this approach could not be maintained because a civil service legal relationship is not based on a contract: it is established through a unilateral act, which is, however, conditioned upon voluntary acceptance by the individual308. At the same time, Magyary admits that nobody can be employed as a civil servant against his or her will.309 Looking at the applicable legal environment, we cannot disregard the fact that a civil service legal relationship is established through an appointment and its acceptance. Even though a civil servant is not in the position to negotiate the content elements of the appointment document, and therefore the legal relationship is indeed established through a unilateral act of the state (or a local government) and this may be accepted or rejected by the subordinated appointee, it must also be remembered that the appointment and its acceptance are based on consensus, meaning that a civil service legal relationship is established through mutual and unanimous agreement between the parties.310 A legal relationship cannot be established without agreement by, and against the will of, the civil servant. It is beyond doubt that the content of such an appointment is far less flexible than that of an employment contract, but it would be inappropriate to claim it is not a contract from a content perspective. As Tamás Prugberger also points out, the genus proximum of an appointment is also its status as a contract, the mutual declaration of the parties’ intent.311

As far as the method of regulation is concerned, it is often cited as a differentiating factor that norms associated with civil service law are of a mandatory nature, whereas the rules of labour law are permissive.312 However, this distinction is quite rough. Although the system of private labour law undoubtedly includes a strong element of permissive regulation respecting the autonomy of will of both parties, attaching high importance to the agreement between the parties on the one hand and collective agreements on the other hand313, it should also be noted that the Labour Code itself also contains a large number of non-permissive norms, meaning that it is not only civil service law that is characterised by mandatory regulations. Parts One, Four and Five of the Labour Code have a mandatory nature, and, with respect to Part Two of the Labour Code, such provisions are included under the heading Other agreements in the closing section of each chapter; plus the Labour Code contains many further mandatory regulations apart from these.314 On the other side,

307 MAGYARY op. cit. 3. 388. 308 Ib. 309 Ib. 131. 310 Cf. GYÖRGY op. cit. 33. 28. 311 Cf. PRUGBERGER, Tamás: Munkajog a polgári jogban a globalizálódó gazdasági viszonyok között. Bíbor, without place and date, 19. 312 GYÖRGY op. cit. 33. 47.; GYÖRGY – HAZAFI op. cit. 1. 26. 313 See on this: BERKE, Gyula: Kógencia és diszpoizitivitás. HR & Munkajog, Vol. 4., Issue 10, October 2013, 42-46. 314 See Section 35, Subsections (1)-(2) of Section 50, Subsection (1) of Section 57, Subsection (1) of Section 62, Subsection (1) of Section 8, Subsection (1) of Section 135, Subsection (1) of Section 165, Section 213, Subsec-

105 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research however, a mandatory nature is not exclusive in civil service either since, under certain circumstances, special agreements between the parties may also play a role315, or may even be of key importance in the case of public service legal relationships due to the underlying statutory status of the Labour Code [Subsection (3) of Section 2 of Act XXXIII of 1992 on the legal status of civil servants (hereinafter Kjt.)]. Therefore, private labour law is interwoven with mandatory elements in the same way as civil service law. There may be differences in emphasis, but the methodology of labour law cannot be described as purely permissive.316 Thus, the mandatory-permissive regulatory methodology can be regarded as a rather obscure distinguishing criterion.

In our opinion, responding to Morris’s view, the differences of greater or lesser import in regulatory methodology are not sufficient reasons for being qualified as a separate branch of law.

Consequently, looking at the classic criteria for division into various branches of law, it does not seem justified to conclude that civil service law should be seen as a separate branch of law from labour law. The following statements are much closer to our opinion: the various areas of civil service law should be regarded as parts of labour law317, and civil service law is a special area of law forming a part of labour law.”318

In a historical perspective, we can see that, until 1992, all legal relationships related to performing work were considered to be employment relationships, and they were subject to the provisions of Act II of 1967 on the Labour Code. Therefore, many authors think that the present-day situation where civil service law is still part of labour law originates in the traditions of socialist labour law.319 In our view, however, the situation is exactly the opposite: in socialism, all employment relationships were regulated within public law, so labour law was unable to enter a path of complex organic development based on private law, but also containing some aspects of public law.320

tion (1) of Section 222, Subsection (1) of Section 227 of the Labour Code. Furthermore, Sections 276-278, Subsections (1)-(3) and (5) of Section 279, Subsection (2) of Section 280, and Sections 281-282 of the Labour Code are of a mandatory nature. Subsection (5) of Section 267 of the Labour Code stipulates the provisions from which no derogation is permitted in the works council agreement. Similarly, no derogation is permitted in the collective agreement from Chapters XIX and XX of the Labour Code. 315 Subsection (3) of Section 50, Subsections (4)-(5) of Section 51, Section 62, Subsection (2) of Section 110, Subsection (7) of Section 133, Subsection (8) of Section 153 of the Kttv., Subsection (3) of Section 60 of Act CCV of 2012 on the legal status of military personnel, Subsection (4) of Section 84/A of Act XLIII of 1996 on the service status of professional members of the armed services. 316 Kiss, György: A munka világ szabályozásának egy lehetséges változata. Magyar Közigazgatás, 1995/4. 263. 317 ZACCARIA op. cit. 41. 121. 318 MÉLYPATAKI op. cit. 42. 64. 319 Cf. GYÖRGY op. cit. 33. 13-14. 320 Gusztáv Vincenti wrote in 1942 that the designation labour law in legal literature was used to indicate both private law-related and public law-related (public administration law) rules applicable to legal relationships in connection with work (SZLADITS, Károly: Magyar magánjog. Kötelmi jog különös része. Budapest, Grill Károly Könyvkiadóvállalata, 1942, 547.). As pointed out by Tamás Prugberger in his study based on his inaugural address held on 25 November 2013 in Újvidék (Novi Sad) at the Vojvodina Academy of Sciences and Arts, during the period of socialism economic employment relationships and civil service relationships

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From July 1992, separate labour regulations were introduced for the public and private sectors, and a so-called trichotomous structural scheme was launched. Labour regulations for the competitive sector (economic sector) were specified in the Labour Code of 1992, while public officials and civil servants were subject to Act XXIII of 1992 on the legal status of civil servants (hereinafter Ktv.)321 and the Kjt., respectively. A few years after the introduction of the new laws, there was a need to create a uniform regulatory framework for civil service. In 1998 and 2002, government resolutions were passed to establish a more uniform civil service system, and a governmental commissioner was appointed to take care of this subject, but no law was adopted in this respect. In contrast to the standardisation efforts, Act LVIII of 2010 on the legal status of government officials (hereinafter Ktjv.) was adopted, which removed from the scope of the Ktv. employees of public administration bodies subordinated to the government.322 The explanatory part of the Ktjv. clearly demonstrates the ambiguous attitude of lawmakers towards the regulatory relationship between labour law and civil service. First, the adoption of a new independent act already indicated a need for more explicit and formal differentiation between labour law and civil service law. Second, the general explanation of the new act pointed out the following: “There is no constitutional, motivational or ethical basis for providing enhanced protection to public officials, precisely against the state, compared to other employees and for making it de facto impossible to dismiss them during the performance of state functions. Moreover, the current enhanced protection is one of the key reasons for the low efficiency and prestige of Hungarian public administration.”323 Thus, the need for the flexibilisation of employment in civil service moved the regulatory fabric actually closer to the private sector.

The next significant change occurred in 2012 with the Kttv. entering into force and the Ktv. and Ktjv. being rescinded. The intention of lawmakers to detach the Kttv. from labour law is also clear based on the general explanation of the act: “At the same time, the Propos- al does away with the practice of defining the provisions of the Labour Code pertaining to civil service legal relationships by means of explicit reference rules. The uniform regulations applicable to civil service officials require the introduction of an independent, separate and uniform set of statutory acts for officials working for the benefit of the public, in line with the value-oriented nature of civil service.” Nevertheless, the beginning of the next sentence of the explanation (“However, the Proposal takes into account the provi-

were treated uniformly in labour law, whereas the two areas separated from each other again with the wave of change. However, still during socialist times, a democratisation process also started, following the example of employment relationships of members of cooperatives and the work relationships associated with Yugoslav self-government collectives [see PRUGBERGER, Tamás: A munkajog fejlődésének főbb csomópontjai napjainkig. Manuscript (under publication), 5-7.]. 321 The Ktv. attempted to follow the example of the traditional career system. 322 HAJDÚ, József – KUN, Attila: Munkajog II. Budapest, Patrocinium, 2013, Chapter X. 323 General explanation of Act LVIII of 2010 on the legal status of government officials. However, as Tamás Prug- berger sees it, the purpose here is not to provide protection against the state, but to recognise the “highly responsible work of public officials” and the limited remuneration they receive due to budgetary constraints, in contrast to any private employment relationship; they can establish other employment relationships only to a limited extent, and their career as a civil servant “poses certain limitations on their private lives as well” See PRUGBERGER op. cit. (2013) 63. 4-5.

107 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research sions of the new Labour Code…”) already indicates the fact that is one of the key messages of this study: civil service law cannot be entirely detached from labour law, even in spite of the greatest efforts of lawmakers.324

2.5. Further dogmatic considerations against treating civil service labour law as an independent branch of law

Differentiation between basic branches of law and secondary branches of law is a traditional distinction in legal science.325 The former are more distinct and homogenous and have clearer contours from the point of view of regulatory methodology (e.g. constitutional law, criminal law, civil law, procedural laws, etc.). Secondary branches of law, such as labour law itself, regulate more varied types of real-life conditions, are less clear in dogmatic terms, and, most importantly for our topic, have their roots in different basic branches of law. For instance, labour law, being founded on private law, contains a mix of elements from civil law and public law (or sometimes even ones of an administrative character). As a consequence, from a dogmatic perspective, it would not be absolutely necessary to detach civil service law from labour law in order to create more homogeneous and distinct branches of law. On the one hand, some secondary branches of law in the legal system are not homogenous themselves, and on the other hand, labour law and civil service law, which may be identified as independent branches of law, would still not be homogenous (the labour law of the private sector will always include many elements of public law, and private law- based institutions will always appear in civil service which is more public law-oriented). Labour law as a branch of law has always followed the practice of regulating various types of relationships (see individual, collective and administrative labour law; a mix of elements from private law and public law, etc.), showing taxonomical openness (labour law is one of the branches of law related to the highest number of other branches of law326). Branches of law are mostly realised through a law application procedure.327 However, judicial practice in the labour laws regulating civil service and the private sector is not clearly separated; on the contrary, the two areas are strongly intertwined. The application of law in these two domains mutually references judicial decisions that may have been made with respect to the other domain, but may serve as guidelines in a given legal dispute. Judicial practice in the two domains actually has a mutually complementary, gap-filling function. Taking into consideration, of course, the significant differences in the details, many basic types of legal disputes are very similar (e.g. unlawful termination of a legal relationship, indemnity, claims for unpaid wages, etc.), so the judicial practice reflected in individual decisions may have theoretical importance in both domains.328

324 General explanation of Act CXCIX of 2011 on the legal status of public officials. 325 Cf. SZABÓ op. cit. (2006) 16. 43. 326 Cf. MOLNÁR Ildikó: An evaluation of the first six months of the new Mt. A portrait interview with Dr. Gyula BERKE, HR & Munkajog, 4 February 2013., Vol. 4. Issue 2, 32-36. 327 Cf. VISEGRÁDY op. cit. 14. 89-90. 328 It suffices to mention only the fact that the highly important positions of the Labour Law College of the former Supreme Court (MK’s) were treated as authoritative in both labour law-related and civil service law- related disputes, taking into account, of course, any evident differences.

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Certain branches of law in the legal system have a peculiar internal structure and common basic concepts.329 The relationship between labour law and civil service law is precisely characterised by their internal structure, namely that the two are in continuous interaction with each other, and civil service law actually defines itself in relation to labour law. The whole of civil service law and some of its legal institutions sometimes approach, and sometimes differentiate more from private labour law, with changing intensity,330 but a reference point (“centre of gravity”) is almost always provided by the institutions of labour law. In addition, basic concepts and some basic principles 331 are also common to these two areas. These aspects, again, do not seem to justify the identification of civil service law as an independent branch of law. Even though the Kttv. is formally independent of the Mt. (and from labour law), some links still exist (e.g., on the one hand, the Kttv. integrates many elements of the Mt., on the other hand, several legal institutions share a common set of basic concepts and similar dogmatics). This does not at the same time mean the impossibil- ity of certain legal institutions coming into being under the aegis of civil service law with respect to the content, establishment or termination of the legal relationship, with specific functions that are different from those of private labour law, or ones that implement the functions of private labour law with a different emphasis. For example, whereas conflicts of interest or disciplinary responsibility are very specific to civil service law, the counterparts of these legal institutions can definitely be found in the area of private labour law as well. Some of these are based on statutory acts, while some others originate in agreements between the parties or social partners.332

In connection with the differentiation of civil service from labour law, we frequently encounter the idea suggesting that those working in civil service perform their tasks for the benefit of the public based on their professional skills, regarding their career as a life commitment, and during this activity they provide public services and fulfil the basic functions of the state that can be made use of by all members of society. Employment relationships, on the contrary, can be found in the private sector.333 Focusing on the scope of application of civil service law, this argumentation captures the substance of civil service in a suc- cinct manner, contrasting it with private labour law. Without challenging the above statements, we would like to remind readers of the fact that the subjective position of providers of public services is not nearly so consistent, given that several tasks are no longer performed by civil servants (think of the employees of healthcare or educational institutions or publicly owned entities subject to the Mt.). We could also argue that professional skills are no longer an exclusive feature of civil servants since private labour law also governs a number of professions. Although these are only secondary counter-arguments, we think they are suitable to illustrate the relative nature of the theoretical aspects of distinction.

329 Cf. SZILÁGYI op. cit. (2006) 12. 366. 330 Cf. PRUGBERGER, Tamás: Munkajogi normatív értékek és a neoliberális globalizálódó gazdaság, Miskolc, Bíbor, 2008, 306. 331 See e.g. Sections 6-12 and 14-30 of the Mt., Sections 9-25 of the Kttv. 332 A function similar to that of conflict of interest is fulfilled by the prohibitions specified in Section 211 of the Mt., while the counterpart for the enforcement of disciplinary responsibility is the stipulation of negative legal consequences for the culpable violation of obligations in Section 56 of the Mt. 333 GYÖRGY op. cit. 33. 15.; GYÖRGY – HAZAFI op. cit. 1. 23.

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At the EU level, the rate of those employed in civil service is 24.4 % compared to all employees (22.6% in Hungary), and this percentage is gradually decreasing, as already pointed out in the context of certain analyses.334 The question may be asked whether this relatively low rate of employees (less than a quarter) can justify the existence of an entirely independent branch of law. The identification of an independent branch of law should of course be primarily based on aspects of dogmatics, rather than quantity, but this low percentage also indicates that civil service is more like a specific segment of labour law, rather than a completely distinct branch of law.

2.6. International trends

A study conducted by Christoph Demmke and Timo Moilanen in 2010335 compared the civil service systems of all member states of the European Union.336 Their findings relevant for our central topic (independent branch of law) were the following. The European development of civil service regimes in recent years can be summarised in the following trends: decentralisation, differentiation, flexibilisation, outsourcing, more openness, and a reduction of red tape in general. Actually, all EU member states follow these trends, and this also has the consequence that it is becoming increasingly difficult to form country group models. At the same time, the post-bureaucratic developmental paradigm does not constitute a consistent and clear-cut model either, and it has flexible borders. The systems of most countries retain certain bureaucratic elements, in spite of the obvious post-bureaucratic developmental trends. The study points out that the gradually decrease in the volume of civil service employment is a European trend (which will most probably continue in the future). For our analysis, the most important conclusion of the study is probably the opinion of the authors that working conditions in a civil service legal relationship are getting closer and closer in character to the private sector, and the differences in the status of workers in the public and private sectors are gradually disappearing. Another important conclusion is that the traditional walls between the labour markets of civil service and the private sector are also in the process of tumbling down. Overall, the study claims most member states are likely to retain the public law-based status of civil service workers for many years. But the analysis also emphasises that the reform trends of the past few decades challenge the very foundations of making a clear distinction between these two domains. 337

A 2012 report of the European Union entitled “Industrial Relations in Europe” focuses on the analysis of changing labour relations in the public sector.338 The following summarises

334 Industrial Relations in Europe 2012, European Union, 2013. 94. 335 DEMMKE, Christoph - MOILANEN, Timo: Civil services in the EU of 27 – Reform Outcomes and the Future of the Civil service, Peter Lang, 2010. 336 Further international comparative studies on the subject, e.g.: Irish Presidency Survey on the Structure of the Civil and Public Services of the EU Member States and Accession States, 60th EUPAN Directors General Meet- ing, Dublin Castle, 13th June 2013; Administration and the Civil Service in the EU 27 Member States, 27 country profiles, MINISTÈRE DU BUDGET, DES COMPTES PUBLICS ET DE LA FONCTION PUBLIQUE, EUPAN; DERLIEN, Hans-Ulrich - PETERS, B. Guy: The State at work, Edward Elgar Publishing, 2008. 337 DEMMKE - MOILANEN op. cit. 102. 243-255. Cf. HORVÁTH op. cit. (2006) 67. 106-107. 338 Industrial Relations in Europe 2012. 101.

110 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research the key findings of the report relevant for our topic. At a European level, labour relations in the public sector are commonly categorised on the basis of two traditional approaches. These are the models based on the “sovereign employer” and the “model employer”. In the first case, civil servants enjoy special prerogatives (such as higher employment security), but have to comply with specific service obligations and may face some limitations to the right to bargain collectively and also the right to strike. This is typical of countries with a Rechtsstaat tradition (states governed by the rule of law) and, to a varying extent, in some other countries, including our immediate region, Central and Eastern Europe. In these countries, civil service law is traditionally, although to a varying extent, separate from labour law (which, however, does not result in an independent branch of law). The second approach is typical of the common law framework of the UK, without a fundamental division between the provisions of public and private sector labour law: collective bargaining is here the main regulatory method, with a traditionally more “benign” employer attitude towards trade unions than in the private sector.339 Of course, the above two ideal-typical models do not exist in a pure form in any state but are combined into varied individual systems.

From the second half of the 20th century, several structural processes exerted an influence on the above models, generally weakening the differences between labour law in civil service and in the private sector. In the 60s and 70s, through the expansion of the welfare state, the public sector gained ground in more and more areas (such as education or healthcare). In these areas, collective bargaining was increasingly recognised and became extensively employed, which resulted in the incorporation of the labour law practice of the competitive sector into the public sector. In the 80s and 90s, the widespread adoption of the NPM (New Public Management) as a market-friendly approach to public administration reforms340 attempted to mitigate the differences between the employment practices of the private sector and the public sector. More recently, since the end of the first decade after the turn of the millennium, financial constraints and austerity measures due to the world economic crisis have resulted in a certain degree of reduction in the prerogatives of civil service workers.

However, these trends did not at all result in the complete abolishment of traditional and structural differences between labour law regulations in the public and private sectors341, but undoubtedly brought the “two worlds” closer to each other. This is concluded in most comparative studies in spite of the fact that the importance of the impacts exerted by the

339 Ib. 14. 340 More information on the NPM: GELLÉN, Márton: A közigazgatási reformok az államszerep változásainak tükrében. Doctoral thesis, Széchenyi István University, Doctoral School for State and Legal Sciences, Győr, 2012. Chapter V; BALÁZS, István: A közigazgatás személyzeti rendszerei és annak változásai az Európai Unió tagországaiban. In: SZAMEL, Katalin – BALÁZS, István – GAJDUSCHEK, György – KOI, Gyula (ed.): Az Európai Unió tagállamainak közigazgatása, Budapest, CompLex, 2011. 87-88. 341 For instance, in Germany the rate of Beamte (subject to public law) and Arbeitnehmer (subject to private law) did not change significantly, and there were no signs of the dissolution of the public law status of Beamte. The situation was similar with the French category fonctionnaires publiques titulaires (meaning that the special public law status is basically stable). Industrial Relations in Europe 2012. 101. 105.

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NPM is highly controversial in the literature.342 This is because some analysts claim that the reforms inspired by the NPM did not actually reach a level of adoption that could have been presumed based on the popularity of the idea.343 Nevertheless, looking at the above trends, it is safe to say that the processes aiming at convergence between the public sector and the competitive sector were not primarily based on immanent legal dogmatics and the organic development of law, but they were rather determined by political intentions (expansion of the welfare state), ideology (NPM) and economic considerations (crisis).

Further breaking down the two main models mentioned above, five country types can be established. In connection with these models, we will only explain below how these systems generally handle the separation of civil service labour law from the labour law of the private sector. The degree of separation can easily be captured through the analysis of collective labour law institutions as these constitute one of the most characteristic pillars of the labour law of the private sector in traditional European legal systems. However, we must not forget the fact that the foundations for modelling according to country types are less and less stable today; there are significant individual differences in the member states of the European Union, induced by country-specific legal, institutional and other traditions. As also pointed out in the aforementioned study by Demmke-Moilanen, it is increasingly difficult to form coherent country type models. Therefore, general conclusions from this categorisation can only be drawn to a limited extent. Furthermore, separate regulations do not necessarily result in separate branches of law. 1. The first group is constituted by Nordic countries. In these countries, there is extensive harmonisation between employees following a civil service career model and those working on the basis of a standard employment contract (which is further reinforced by the comprehensive practice of collective bargaining characteristic of both sectors). 2. The second group consists of Germany, France, Austria, Belgium and the Netherlands, which are characterised by the traditional rule of law and a high rate of career officials, with certain limitations regarding the right to collective bargaining and strikes. This means that separation from labour law is stronger (but still incomplete) here. 3. The third group includes Southern European countries, whose decisive characteristic is the special labour law status of most civil servants, as well as the limited or entirely lacking right to collective bargaining. 4. The forth group incorporates Central and Eastern European countries (CEE countries). In most of these, the practice of collective bargaining in the public sector is very limited. Overall, these countries are characterised by weak institutions and practice of industrial relations (except Slovenia). As a consequence, the labour law of civil service is characteristically different from the labour law of the private sector, although a homogenous regulatory model cannot be found in these countries either.

342 Ib., and further GIORDANO, R. – DEPALO, D. – PEREIRA, M. – EUGÈNE, B. – PAPAPETROU, E. – PEREZ, J. – REISS, L. – ROTER, M. (2011): The public sector pay gap in a selection of Euro area countries. Frankfurt: European Central Bank, Working Paper Series No 1406, December. 343 In more detail: POLLITT, Ch.: 30 Years of Public Management Reforms: Has There Been a Pattern? A Background Paper for the World Bank Consultation Exercise, Washington: World Bank, 2011.

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5. The United Kingdom can be mentioned as the fifth group. Here, those employed in civil service do not enjoy a special status. There is a widespread practice of collective bargaining in this country, and, with the exception of a few groups, there are no special limitations to the right to associate or strike.344

The executive summary of the research concludes that the collective bargaining and wage level systems of the public sector are today organised around two interrelated European trends: 1. decentralisation (within or outside a centrally coordinated framework); 2. sub- stitution of performance-based systems for automatic salary and promotion systems based on seniority. All of this strengthens the general trend of convergence between the public sector and the private sector.345 At several points, the report draws the conclusion that a clear distinction between the labour law systems of the public and private sectors is less and less characteristic. 346

The dilemma of making a distinction between work-related legal relationships in the public and private sectors is (was) influenced by the economic crisis in an ambivalent manner According to the 2012 report entitled “Industrial Relations in Europe”, on the one hand, the crisis resulted in a kind of general return to unilateralism by governments and public sector employers to the detriment of social dialogue. This may strengthen differentiation from labour law. At the same time, unilateralism is used by most governments to introduce, or strengthen, civil service human resource management practices characteristic of the private sector (e.g. the weakening of the special privileges of civil service emploees, where such privileges existed at all).347 However, the latter trends precisely reinforce convergence between work-related legal relationships in the public and private sectors.348

Convincing arguments are brought up by an analyst of the ILO (International Labour Organisation) with respect to the relationship between labour law and civil service law

344 Industrial Relations in Europe 2012. 101. 118-121. At this point, the classification of Bernadett Veszprémi deserves a mention, who divides countries into three large groups on the basis of the depth and subject matter of regulation. The first group includes those countries whose constitution defines the basic principles of civil service but does not contain any other detailed regulations regarding civil service. The second group consists of countries where, in addition to basic principles, important guarantee rules also appear in the constitution (e.g. lifelong employment, impartiality). The third group includes countries whose constitution stipulates detailed rules for civil service [see VESZPRÉMI, Bernadett: A köztisztviselők felelősségi rendszere, PhD értekezés, Miskolc, 2011. Manuscript, http://phd.lib.uni-miskolc.hu/JaDoX_Portlets/documents/document_6216_sec- tion_1654.pdf, 141-142. (Date of download: 30 January 2014)]. 345 Industrial Relations in Europe 2012. 101. 14. 346 E.g. Ib. 29. 347 A similarly ambiguous legislative intention can be identified in the general explanation of the Kttv.: “When this regulation was created, it was a cornerstone to assume that, as an essential element of civil service, the establishment of the legal relationship is not the subject or result of discussions and agreements between equal parties free of any limitations, but a unilateral act of the state in which it appoints the would-be public official or government official according to a detailed procedure described by law, assigning to him or her certain responsibilities, positions or offices. Also, the Act treated as a priority the endeavour to make employment conditions more flexible and more economical…” 348 Industrial Relations in Europe 2012. 101. 129-156.

113 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research in his work entitled “One labour market, one labour law?”.349 Miguel A. Malo emphasises that there is an ever more dynamic interactive relationship between the public and private sectors worldwide. As a consequence, although labour law needs to reflect the differing characteristics of the two sectors, this is basically realised within the framework of labour law. Malo claims the labour market is more and more uniform in an economic sense, the public and private sectors are increasingly intertwined (e.g. several professions are present in both sectors; the trend of outsourcing also strengthens this process of intertwining), so the labour law of the public sector is getting closer to that of the private sector. A key characteristic of the integrating labour market is that job security can be less and less guaranteed by the institutions of labour law, which increases the need for employability (“labour market security instead of labour law security”).350 However, extensive professionalisation and the artificial delimitation of occupational spheres would be less able to guarantee the security of employability, which could ultimately affect the objective of employment growth. Naturally, there will always be factors justifying regulatory traits differentiating the labour law of the public sector from that of the private sector (e.g. the profit-oriented nature of the private sector, the priority role of the institutions of collective labour law in the private sector, etc.), but the trend of approximation remains typical. Although the public sector has certain important features from the point of view of labour market research, the thesis of “one labour market”, brought up by the aforementioned ILO expert, is becoming less and less debatable. The main specific labour market indicators of the public sector are, incidentally, captured by EU statistical analyses as follows: 1. relatively higher rate of women employees, 2. relatively higher rate of part-time employees, 3.defined-period employment is more common, 4. relatively older age of employees, and 5. relatively higher rate of professional employees.351

In more recent international scientific trends of labour law, approaches regarding labour law in a broad sense, in a labour market sense, are increasingly gaining ground. For example, Harry Arthurs is of the opinion that labour law will most probably develop into a broader, more inclusive regulation. He claims that labour law should expand its focus to all related regulatory and policy areas that could affect work relationships or labour market outputs in any way.352 Others also argue for the need to expand the focus of labour regulations. Ac- cording to Vosko, for example, labour law should no longer focus primarily on the employment relationship, but, in a wider perspective, on labour conditions and labour market conditions.353 Moreover, Mitchell and Arup no longer talk of labour law but a kind of “labour market law”, arguing for the necessity of breaking down the disciplinary borders between

349 MALO, Miguel A.: One labour market, one labour law? http://www.ilo.org/global/about-the-ilo/newsroom/ comment-analysis/WCMS_207415/lang--en/index.htm (Date of download: 25 October 2013). 350 L. Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions – Towards Common Principles of Flexicurity: More and better jobs through flexibility and security, COM(2007) 359 final. 351 Industrial Relations in Europe 2012. 101. 96. 352 ARTHURS, Harry: Labour Law after Labour, In: DAVIDOV, Guy – LANGILLE, Brian (eds.): The Idea of Labour Law, Oxford University Press 2011. 13-30., 27., 29. 353 VOSKO F. Leah: Out of the shadow? In: DAVIDOV, Guy – LANGILLE, Brian (eds.): The Idea of Labour Law, Oxford University Press 2011. 368.

114 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research areas of law related to the world of work.354 John Howe points out that the broad interpretation of labour law is essential to ensure that labour law science can maintain its vitality and ability to develop.355 In the spirit of the above correlations, and adopting this labour market-based approach to labour law, it seems to be extremely artificial and counterproductive to insist on detaching civil service law from labour law as an independent branch of law.

A more uniform interpretation of labour law and civil service law is also fostered by certain theories of labour law science, which have gained more and more focus in international literature and which have been generating serious debates in recent decades - urging a human rights-based approach to and foundation for employee rights.356 The idea of the univer- sality of human rights requires that certain universal rights are granted to every person doing work anywhere in the world, in any legal relationship (or even without a legal relationship). This approach is also supported by the ILO’s “decent work for all” programme.357 Moreover, as Morris points out, the international conventions signed under the aegis of the ILO after World War II in the matter of labour law did not create a difference between the employees of the public and private sectors. This means that modern international labour law is based on the idea that “all workers are equal” (without differentiating between the private and public sectors).358 Furthermore, the relationship-neutral floor of rights of decent employment provides a stable and consistent normative basis for labour law (which, of course, does not preclude the differentiation of labour law to some extent, e.g. in this case with respect to the public sector, relying on that stable common basis). The common denominator status of fundamental employee rights is attributable to the fact that fundamental rights have always served to mitigate the effects of subordination,

354 Quoted by: FUDGE, Judy: Labour as a ’Fictive Commodity’: Radically Reconceptualizing Labour Law, In: DAVIDOV, Guy – LANGILLE, Brian (eds.): The Idea of Labour Law, Oxford University Press 2011. 125. 355 Cf. HOWE, John: The Broad Idea of Labour Law. In: DAVIDOV, Guy – LANGILLE, Brian (eds.): The Idea of Labour Law, Oxford University Press 2011. 299-300. 356 See on this e.g.: FENWICK, Colin – NOVITZ, Tonia (ed.): Human Rights at Work. Oxford and Portland, Oregon, Hart Publishing, 2010., SUPIOT, Alain (1999): The transformation of work and the future of labour law in Europe: A multidisciplinary perspective. International Labour Review, Vol. 138., No 1; MANTOUVALOU, Virginia: Are labour rights human rights? European Labour Law Journal, Volume 3 (2012), No. 2.; POLITAKIS, George P.: Protecting Labour Rights as Human Rights: Present and Future of International Supervision, Proceedings of the International Colloquium on the 80th Anniversary of the ILO Committee of Experts on the Application of Conventions and Recommendations. Geneva, 24-25 November 2006. 357 The promotion of decent work has been a central topic on the ILO’s political agenda since 2000: by establishing an agenda for decent work, the ILO wants to “promote opportunities for women and men to obtain decent and productive work, in conditions of freedom, equity, security and human dignity”. Governments and social partners within the ILO approved this agenda for decent work, which, as a combination of universal guidelines, is not associated with any specific development model. In 2004, the World Commission on the Social Dimension of Globalisation integrated this agenda into its recommendations. The agenda for decent work is based on an integrated approach, incorporating productive and freely chosen employment, labour law, social protection, social dialogue, as well as the consideration of the dimension of equality between the sexes. As such, it also includes all “fundamental social rights” constituting a minimum basis for the social rights established by the community. But the agenda is more ambitious than that: it does not only aim at granting the minimum fundamental rights, but also wishes to achieve development along values and principles of action and management that combine economic competitiveness and social justice. In more detail: http://www.ilo. org/global/about-the-ilo/decent-work-agenda/lang--en/index.htm 358 MORRIS op. cit. 69. 168.

115 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research originally in the context of the state and the individual (citizen). Therefore, human rights originally appeared as a need against the state (vertical interpretation). One of the theoretical pillars of the widely disputed horizontal interpretation of human rights (i.e. between individual parties) is precisely the fact that asymmetric and unbalanced situations also occur in legal relationships based on private law, where subordination and dependence particularly justifies some balancing through the protection of fundamental rights. Labour law and civil service law, as explained above, both regulate dependent and subordinated employment relationships, so an approach strongly relying on fundamental rights upon a common normative basis is particularly needed here.359

Apart from the above, several studies point out that, looking at international trends, the borders between the labour laws of the public sector and the private sector are constantly being broken down (where they existed at all). According to the World Bank, there are many signs indicating the “softening of the distinction between civil service and labour law”.360 As explained by Gillian Morris and as mentioned above - the necessarily functional approach to civil service “cuts across the borders between the public and private sectors since civil service functions may be performed in both sectors, and the two sectors are becoming more and more interoperable.361

3. Divergence and convergence of labour law and civil service law in the light of certain legal institutions To clarify and support the general analysis of legal dogmatics explained above, the following section will describe some sub-topics (on a non-exhaustive basis) characteristically indicating the relationship between private labour law and civil service labour law. The legal institutions explained below graphically show the intensity of convergences and divergences between private labour law and civil service law, as well as the peculiar overlaps and borderline areas between the two sectors. The (preliminary) conclusions drawn from the investigation of these issues may be suitable for illustrating and reinforcing the more general conclusions regarding the distinction between the two areas as separate branches of law.

3.1. Civil law and civil service law

After the adoption of the Kttv. and the repeal of the Labour Code of 1992, and after the Labour Code entered into effect on 1 July 2012, the code of private labour law ceased to be a background law of the Kttv. Simultaneously, however, a number of provisions were

359 In more detail: YENISEY, Kübra Doğan: The reasons behind resorting fundamental rights in employment law. Conference Paper, Sydney, 2009, ISLSSL. 360 Civil Service Law & Employment Regimes, The World Bank, 2001, http://web.worldbank.org/WBSITE/EX- TERNAL/TOPICS/EXTPUBLICSECTORANDGOVERNANCE/0,,contentMDK:20133489~menuPK:286 310~pagePK:148956~piPK:216618~theSitePK:286305~isCURL:Y,00.html (Date of download: 10 November 2013). 361 MORRIS op. cit. 69. 180.

116 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research incorporated in the Kttv. which had earlier been stipulated in the Labour Code of 1992. Ac- cording to the general explanation of the Kttv., by transposing these legal institutions, the lawmakers aimed to ensure that the provisions of the Mt. are adopted only on condition that they can fully meet the higher expectations reasonably set by civil service.

The gap between civil service and private labour law was further increased by the fact that the Ptk. did not appear expressis verbis as an underlying law of either the Kttv. or any other act governing civil service. However, since the Mt. continued to be a background law of the Kjt., public service legal relationships are permeated by the provisions of the Ptk. applicable to private labour law. In the context of the Üjt., the Mt. is also an underlying law, although with some limitations (Section 153 of the Üjt.). Similarly to the earlier method of the Ktv., the Iasz. and the Bjt. explicitly list the relevant provisions of law, or stipulate that they should be applied with certain derogations (Section 124 of the Iasz., Section 222 of the Bjt.). The Hszt. only requires compliance with some rules, while the Hjt. does not make a mention of the code of private labour law at all. Based on the above, it can be concluded that civil service has not entirely been released from the “grasp” of the Mt., although it is beyond doubt that the latter five acts on legal status mentioned above did not adopt the provision most characteristically embodying the link between the Mt. and the Ptk., which stipulated that the provisions of Chapters XVII-XXII of the Ptk. must be appropriately applied in private labour law (Section 31 of the Mt.).362

It is also remarkable that, in the context of some legal institutions, the Kttv. did not adopt the provisions of the Mt., but “brought along” the solutions, or parts of them, from the La- bour Code of 1992, which once functioned as the background law of the Ktv. This heritage that was not rejected, and which, as we see it, was still retained by lawmakers as a kind of comparative advantage of civil service, increased the gap between civil service law and private labour regulations, which were becoming more flexible. A few examples: retention of the prohibition to dismiss an employee in case of incapacity to work due to taking care of a sick child [Item (d) of Subsection (1) of Section 70 of the Kttv.], rules for the duration of mid- work breaks [Subsection (1) of Section 94 of the Kttv.], upper limit for overtime work [Sub- section (8) of Section 96 of the Kttv.], and the rules for downtime [Subsection (1) of Section 144 of the Kttv.]. Despite this phenomenon, the Kttv. followed the minimum standards of the new Mt., exerting an opposite effect, and increasing convergence between the two areas.

Although at the time of writing this study, Proposal No. T/12824 on the amendment of certain acts relating to the entry into force of the new Civil Code had not yet been accepted,363 it can be seen by analysing the text of the Proposal that the relationship between the Kttv. and the new Ptk. is likely to undergo a significant change in the near future. Section 173 of the Proposal would regulate certain legal institutions of private law, such as the misuse

362 Section 30 of the Mt. is amended by Act CCLII of 2013 on the amendment of certain acts relating to the entry into force of the new Civil Code as of 15 March 2014; pursuant to this amendment, the Mt. will refer to specific individual provisions of the Ptk., rather than to its chapters. 363 Note that Act CCLII of 2013 on the amendment of certain acts relating to the entry into force of the new Civil Code was promulgated after the completion of this study, on 30 December 2013.

117 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research of rights, defeasibility, provisions on liability for damages, and grievance money, in harmony with the new Ptk. Furthermore, in case of the acceptance of the proposal, the Kttv. would directly refer to the relevant sections of the Ptk. and the provisions of the Ptk. on liability for damages caused by a breach of contract in the context of the protection of pri- vacy rights and study contracts. In our view, these provisions would result in an unprec- edented bond between civil service law and private law, definitely creating a very strong link between the two areas. This also confirms our earlier statement that the distinction between the labour law systems of the public and private sectors is less and less characteristic, the common roots of private labour law and civil service labour law are becoming intertwined and are in an organic and dynamic relationship with each other on the basis of legal dogmatics.364

3.2. Collective labour law

It is safe to say the labour law would be unimaginable without collective institutions. As pointed out by György Kiss, “the collective institutions of labour law express the right to self-determination - individual autonomy - on a contractual basis”365, and actually serve to maintain a power balance between the parties in an employment relationship. If this statement is accepted as true, we could conclude with respect to the relationship between labour law and civil service law that, since all legal status acts of civil service specify certain collective legal institutions, the idea of a contractual right to self-determination and individual autonomy is also present in civil service law. According to György Kiss, however, the authority of the state prevails, rather than the contractual principle. As a consequence, the appearance of some legal institutions of collective labour law in civil service is much more dependent on the political situation, ideology, legal and administrative culture of the given country.366

Looking at the collective legal institutions present in private labour law and civil service law, we can detect, apart from a large number of similarities, huge differences with respect to certain legal institutions.367 Both the Mt. and the acts governing the legal status of each category of civil servants regulate certain collective institutions in a similar manner and with similar objectives (see the freedom of organisation, the rights of trade unions)368; however, apart from the Mt., it is only the Kjt. that allows the conclusion of

364 Also note that Proposal No. T/12824. (Act CCLII of 2013 on the amendment of certain acts relating to the entry into force of the new Civil Code) contains similar provisions on other acts on the legal status of public service employees (Hjt., Hszt., Iasz., Bjt., Üjt.) (see Sections 67, 71, 98, 126, 128 of the Proposal). 365 KISS op. cit. (2005) 32. 22. 366 Ib. 23. 367 A comprehensive analysis of relations in collective labour law is provided in: BERKI, Erzsébet – FODOR, T. Gábor – NACSA, Beáta – NEUMANN, László: Kollektív jogok és érvényesülésük közszolgálatban. Összehasonlító elemzés a köztisztviselői, a szolgálati és a hivatásos katonai jogviszonyra vonatkozóan. Final study, Budapest, 2007., Collective bargaining in the public service A way forward, International Labour Conference, 102nd Ses- sion, Geneva, International Labor Office, 2013. 368 See e.g. Chapters XIX and XX of the Mt., Sections 195-197, 200-202 of the Kttv., Chapter IV/A of the Hszt., Chapter IV of the Hjt.

118 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research collective agreements369, although the scope of such agreements is much more limited in the context of civil servants than in the Mt. because, pursuant to Subsection (2) of Section 2 of the Kjt., a collective agreement may only include provisions that are not contrary to law. At the same time, it must also be mentioned in connection with collective bargaining that, while over the past two decades lawmakers in the area of civil service law have not “officially” recognised the right to conclude a collective agreement outside the category of public sector employees, the government, the ministers and the representative bodies of local governments have often signed contracts actually serving as collective agreements (quasi collective agreements) with trade unions representing not only public sector employees but also public officials and employees in a professional service relationship.370 Due to the lack of applicable regulations, the binding force and enforceability of these agreements is somewhat questionable, but, in agreement with Beáta Nacsa, the sheer existence of those agreements indicates that there is a need for collective bargaining among the social partners of civil service.371 We further conclude that this need, leaving the constraints of the legal framework, may be a precursor of the raison d’ętre of classic labour law methodology in civil service law.

The possibility of comprehensive or partial collective bargaining is common practice in some European countries; moreover, there is no significant difference between collective bargaining processes in the private sector and in the public sector.372

In those countries where the right to conclude collective agreements has been acknowledged in the public sector as well, it was actually acknowledged as a consequence of the self-restraint of the state. This is based on the recognition that it is also possible in this context to differentiate between the state as a regulator and the state as an employer.373

369 This statement is definitely weakened by the fact that the right to conclude a collective agreement is granted to employees working for so-called public administration bodies mentioned in Section 258 of the Kttv. but subject to the Mt. 370 NACSA, Beáta: Foglalkoztatás jogi szabályozása a közszférában. A jogi szabályozás két neuralgikus pontja: az ál- lásbiztonság és a kollektív alku. Hungarian Academy of Sciences, Research Centre for Economic and Regional Studies, Institute for Economic Sciences, Budapest, Corvinus University, Faculty of Human Resources, Bu- dapest, 2013. 30. See Agreement between the Government and the interested trade unions on the exercise of the right of public officials to strike (MK No. 1994/8), Érdek-képviseleti tájékoztató. KIÉT Agreement on increasing the remuneration of employees working for central and local institutions in 1996 and the amendment of the promotion and remuneration systems of civil servants. (MK. No. 1996/9), Agreement on increasing the salary of civil servants in 1997 (MK No. 1996/122), Agreement on the implementation of the reduction of government personnel (MK. No. 2003/13. sz.), Agreement between the Ministry of National Cultural Heritage (NKÖM), and the Trade Union of Workers of Public Collections and Public Education (KKDSZ) and Federation of Art Trade Unions (MSZSZ) on the division of the wage policy framework of local and central public collections, public education and artistic activities (Kulturális Közlöny 2001, Issues 18 and 21), Agree- ment between the Minister of the Interior and the Interministerial Interest Reconciliation Forum of Law Enforcement Organisations (MK. No. 2004/96) see NACSA Beáta op. cit. 137. 30. 97. and 98. lbj. 371 Ib. 30. 372 Ib. 27. In addition to Great Britain and Germany Nacsa brings up the Czech Republic, Italy, Denmark, Austria, Sweden and Spain as examples. 373 NEAL, Alan C.: Industrial Relations, including Collective Disputes, in the Public Sector. General report. The XVI World Congress of Labour Law and Social Security, Jerusalem, Israel, 2000. 18. Quoted by NACSA Beáta op. cit. 137. 23. Cf. HORVÁTH op. cit. (2013) 8. 566.

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As we see it, this idea is only marginally present in Hungarian civil service law, in spite of the aforementioned trends. Due to the authority of the state and the presence of the state as a regulator, collective bargaining is not an unavoidable necessity as working conditions related to civil service legal relationships and remuneration issues can be regulated through legislation.

However, this situation leads to a special approach regarding the role of civil service trade unions. The lack of, or deficiencies in, the right to collective bargaining motivates trade unions to carry out their interest representation activities towards bodies that are able to directly influence legislation (e.g. the operator), rather than towards their employers. During the institution-level reconciliation of interests, the partner of the trade union is the “pseudo-employer” (budgetary institution, public institution, public administration body), which, however, does not actually have the right of decision in determining the key elements of employment.374

Also note that the empirical study of collective agreements concluded pursuant to the Kjt. reveals several problems. As a general flaw of such collective agreements, they often include provisions on issues for which they do not have legal authorisation, and therefore they are considered null and void. These collective agreements are generally criticised for merely quoting the text of the law, or simply for being inaccurately worded.375 Based on this experience, there is no reason for too much optimism for the future, assum- ing that the growing openness of the underlying laws of the Mt. to bilateral optionality will put the practice of collective bargaining in the realm of civil servants on a new, more dynamic path.376

Divergence from labour law can also be detected in the context of government officials and the two professional public interest representation bodies of the professional members and civil servants of the armed forces with self-government status, namely the Hun- garian Government Officials’ Corps and the Hungarian Police Corps, which exercise, among other things, the right to represent interests, take part in consultations, express an opinion and propose laws, and, in the area of professional ethics, perform norm creation and law application functions.377 In our view, although these two organisations cannot be considered as counterparts of classic interest representation bodies functioning as trade unions, they can be regarded as special collective labour law institutions in civil service law due to some of their authorisations. It must be noted here that these professional public interest representation bodies actually exercise certain rights with respect to ensuring

374 HORVÁTH op. cit. (2006) 67, 56 and 99-100. 375 GÁL, Csilla – FODOR, T. Gábor – NEMESKÉRI, Gyula – NÉMETH, Tibor: Oktatási ágazatban kötött kollektív szerződések elemzése. Budapest, Ergofit Kft, 2008. http://www.szmm.gov.hu/mkir/doksik/ksz/elemzes/ oktatas_ksz_elemzes.pdf (Date of download: 29 November 2013), 110-112., KISGYÖRGY, Sándor – KÖNÖZSY, László – LÉNÁRT, Szilvia – VÁMOS, István: Egészségügyi ágazatban kötött kollektív szerződések elemzése. Buda- pest, ÉTOSZ, 2008. 61-65. 376 An example here is the collective agreement of the Klebelsberg Institution Maintenance Centre, signed in November 2013 and entering into force as of 1 January 2014. 377 Chapter IV of the Kttv., Chapter IV of the Hszt.

120 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research the participation of employees in the decisions of the employer.378 In principle, the mere existence of the Hungarian Government Officials’ Corps and the Hungarian Police Corps may catalyse the culture of industrial relations in the public sector, although this depends on many factors such as time, management attitudes and the members’ activity.

It is important to mention that Article 5 of Convention No. 154 on the promotion of collective bargaining, accepted at the 67th session of the International Labour Conference in 1981379 stipulates that measures customised to the Hungarian conditions need to be taken in order to fos- ter collective bargaining. In this respect, the Convention aims to provide an opportunity to all groups of employers and employees working in any field of activity subject to it, including civil service, to conduct collective negotiations. If, in the long term, the Mt. successfully achieves its comprehensive objective in social and legal policy to ensure that collective agreements become more important, then their complete rejection by the public sector would be unsustainable in the future. International experience shows that in countries where industrial relations have an essential role in shaping the conditions of employment, this fact, as a principle of social organisation, usually affects all sectors of employment, including the public sector.

The right to strike, i.e. temporary work stoppage by employees in order to change their working conditions380, can be exercised in civil service only to a limited extent compared to an employment relationship. Pursuant to Subsection (2) of Section 3 of Act VII of 1989 on striking, strikes are not permitted at the Hungarian Defence Forces, police and law enforcement bodies, and civil national security services; at state administration bodies the right to strike may be exercised subject to the special rules set forth in an agreement between the Government and the relevant trade unions, whereas the professional personnel of the National Tax and Customs Administration also may not exercise the right to strike. As we see it, these limitations do not express a distinction between labour law and civil service law, but, quite on the contrary, a close link between the two areas. This is because the fact itself that under certain circumstances it is permitted in civil service to apply one of the oldest legal institutions of collective labour law already demonstrates the common roots of civil service and labour law.

Based on the above, it can be concluded that the convergence and divergence of civil service and labour law are present in parallel in the context of collective institutions. Some areas are barely regulated, or only to the extent necessitated by the specificities of civil service, while other areas are completely missing from the collective labour law of the public sector. Whereas the appearance of collective labour law institutions in civil service already indicates convergence between labour law and civil service, the different regulation of, limitations to, or the missing regulation of some of the aforementioned legal institutions reinforce divergence.

378 See also Sections 14-19 of the Kjt. and Chapter II of the Üjt. for participation rights. 379 See Act LXXIV of 2000 on the promulgation of Convention No. 154 on the promotion of collective bargaining, accepted at the 67th session of the International Labour Conference in 1981. 380 Cf. BERKI, Erzsébet: Sztrájk! Sztrájkok és más direkt akciók Magyarországon a rendszerváltás után. Budapest, Munkaügyi Kutatások Szakmai Műhelye, 2000. 32.

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3.3. Changes in legal relationships

One of the key questions of the relationship (convergence or divergence) between labour law and civil service law is the problem of “transfer” between legal relationships. As demonstrated below, the current regulations are not free of inconsistencies, but, at a dogmatic level, this set of rules definitely indicates that there is a strong link between employment relationships in the private sector and in the public sector.

3.3.1. Transfer to the public sector

The Mt. does not regulate the procedure of change in legal relationships, thereby formally limiting mobility between the two sectors through a change in the legal status of the employer. This is because, according to Item (d) of Subsection (1) of Section 63 of the Mt., an employment relationship is ex lege terminated if, by way of a legal transaction or based on provisions of law, an economic entity is transferred from the transferer to the transferee, and the transferee is not subject to the Mt. (but to another regulation). The previous Labour Code (Sections 86/B-86/E of the Labour Code of 1992) included detailed rules for changes in legal relationships. This means that, while the previous regulation applied the continuity of the legal relationship as a general rule for transfers between the private sector and the public sector381, the Mt. handles the same situation as the termination of the employment relationship382, bringing about a significant change in the relationship between private labour law and civil service law. Thus, if the employer taking over an economic entity [Subsection (1) of Section 36 of the Mt.] is not subject to the Mt., the rules for change in the person of the employer (“legal succession”) do not need to be applied. The transferee is not subject to any obligation to maintain employment, i.e. to establish a new legal relationship. According to Subsection (3) of Section 63 of the Mt., the employment relationship between the transferer and the employee terminates. This, of course does not prevent the transferee from making an offer for the establishment of a new legal relationship.

In the labour law of the EU, Directive 2001/23/EC sets forth the rules for the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses

381 In this situation, Sections 86/B-86/E of the previous Labour Code regulated the future of employment relationships, actually requiring that they should be “maintained”. This regulation essentially aimed at requiring transferee employers subject to the laws governing employment relationships in the public sector (Kjt., Ktv.) to make an offer to the previous employee for the establishment of a legal relationship as a civil servant or as a public official. If that offer was accepted, new legal relationships were established between the parties, and the rules applicable in such legal relationships were defined in the Labour Code. 382 If, by way of a legal transaction or based on provisions of law, the transferee of an economic entity is not subject to the Mt., the employee must receive an absence fee in an amount that would be due to him or her in case of termination by the employer for a definite period of exemption from work. The employee is not entitled to this benefit if, in case of termination, he or she were not entitled to wages during the period of exemption from work. Pursuant to Item (c) of Subsection (1) of Section 77 of the Mt., the employee is entitled to receive severance pay.

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(the “succession directive”).383 The provisions defining the scope of the directive include the following rule: “This Directive shall apply to public and private undertakings engaged in economic activities whether or not they are operating for gain. An administrative reorganisation of public administrative authorities, or the transfer of administrative functions between public administrative authorities, is not a transfer within the meaning of this Directive (Article 1(1)(c)).” This means that, according to the Directive, the only exception to legal succession is the transfer of functions between administrative authorities. In light of that, it is not clear why the aforementioned general rule of the Mt. (the elimination of the consequences of legal succession in the case of a “change in legal status when being transferred from the private sector to the public sector”) discards the application of the rules regulating changes in the person of the employer.

The importance of the change described above is also remarkable in the general context of the relationship between labour law and civil service law. This regulation, the elimination of the “takeover obligation” as a general rule, first seems to restrict mobility between the two sectors and increase the gap between the two regulatory regimes. However, thinking over the rule more carefully, the change conveys a wider-ranging message as well. First, it indicates that the public sector does not have additional obligations in the case of transfer from the private sector to the public sector, meaning it is not obliged to maintain the legal relationships terminated in the private sector as a result of the transfer. Ultimately, the labour law obligations of the public sector were diminished as a consequence of the change (see the elimination of continued employment), indicating that today the public sector is not necessarily obliged, or able384, to guarantee extra job security. All this organically fits into the general international trends described above, resulting in the gradual disappear- ance of the comparative advantages of the public sector (such as job security), and, in a wider context, bringing the “two labour laws” closer to each other. Second, the termination of this specific system of guarantees (quasi-automatic change in legal relationships) directs attention to the phenomenon of “one labour market”, also mentioned above. Thus, an employee losing his or her job in the private sector due to the above reasons is forced to look for a new job according to the general dynamics of the labour market (either in the private or in the public sector), without extra protection by the public sector (the automatic change in legal relationships does not occur).

It also deserves mention that, despite the general rule analysed above, under certain circumstances, lawmakers may deviate from this technique, mostly for political or social reasons. Within one year after the entry into force of the Mt. rule explained here, the lawmakers deviated from the general rule set forth in Item (d) of Subsection (1) of Section 63 of the Mt., and defined a number of exceptions. Of these exceptions385, the most important

383 There is a transfer where there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary (Article 1(1)(b)). 384 It is a question to what extent the creation of the new rule under review was influenced by budgetary constraints (besides dogmatic ones). 385 See also similar provisions on the central takeover of certain healthcare institutions.

123 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research is probably the description of the modifications introduced to Act CXCV of 2011 on the state budget (hereinafter Áht.) by Act CIII of 2013386. Subheading 9/A of the Áht. was put into effect by Act CIII of 2013 (the provision has been in force since 30 June 2013). The new subheading regulates the transfer of the state functions of state-owned business associations to central budgetary institutions.

In this context, the new Section 11/F of the Áht. includes provisions that are expressly related to labour law. The importance of this regulation lies in the fact that it creates special rules as compared to the concept of the Mt. described above. This set of rules is only applicable to cases where, based on provisions of law, a central budgetary institution takes over the responsibilities (or other activities) of a member of the Gov- ernment, or a budgetary institution controlled or supervised by the Government, or a business association controlled through the exercise of ownership rights by a person or entity appointed by the minister in charge of supervising public assets wholly owned by the state, or a business association wholly owned by such a business association. Thus, the scope of regulations under this subheading only covers business associations wholly owned by the state and controlled, through the exercise of ownership rights, by the Government.

According to the wording of Subsection (1) of Section 11/F of the Áht., from a labour law perspective, there is a change in legal status in the given case.387 This essentially means that an employment relationship is transformed into a civil service legal relationship (civil servant, government official, professional service or contractual service, and in accordance with the rules set forth in Áht.). The regulation is aimed at ensuring that, according to procedural rules defined by law but not described here in detail, employment relationships are “transformed” into civil service legal relationships, unless there is a legal obstacle to this on the basis of civil service regulations (e.g. due to the lack of the employee’s subject status or conflicts of interest). If obstacles of the latter type arise, the law precludes the legal consequences of the change in legal relationships. Furthermore, after taking over the appointment document, the employee has a legally guaranteed right to accept or reject the appointment offer. In an exceptional situation where there may be an employment relationship between the civil service employer and the employee (see Section 258 of the Kttv. for more details), the employment relationship is essentially “maintained”, rather than transformed (if the employee accepts the corresponding offer).388 Therefore, if the employees of the transferer meet the appointment criteria of the transferee budgetary institution, as defined by law for the given legal relationship (e.g. civil servant, public official, etc.), and they accept the appointment offer, their continued employment is ensured, recognising the continuity of the previous legal relation-

386 Act CIII of 2013 on the amendment of certain acts with regard to the calculation of the absence pay and the regulation of public funds. 387 The rule set forth in Subsection (1) of Section 11/C of the Áht., stipulating that, with certain exceptions defined by law, the legal successor of all rights and obligations of the business association transferring the activity is the transferee budgetary institution, is also to be considered here. 388 We will not discuss questions relevant for collective labour law in connection with changing legal statuses.

124 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research ship. Furthermore, if the transferee budgetary institution itself employed a worker of the terminated entity in an employment relationship (e.g. manual workers), the employment relationship would not be terminated, but the new employer would sign a new employment contact with the employee.

3.3.2. Transfer to private labour law

In contrast with the method of the Mt. mentioned above, Section 25/A of the Kjt. stipulates for transfer from the public sector to the private sector that the transferee employer (subject to the Mt.) is obliged to make an offer according to the Kjt. The civil servant may state whether he or she agrees to being further employed by the transferee employer. If the civil servant agrees to being further employed by the transferee employer, the transferee employer is obliged to conclude an employment contract with the civil servant. The Kjt. sets forth the procedural rules governing the transfer, as well as other rules pertaining to the employment relationship forming a basis of continued employment.

It also has to be noted that, according to Section 258 of the Kttv., the rules set forth in the Mt. regarding a change in the person of the employer (“legal succession”) must be applied for workers employed by public administration bodies.

Pursuant to the Kttv., the legal relationship of a public official employed by a given public administration body may be transformed into a legal relationship as a government official or a civil servant, or into an employment relationship. In our case, the situation mentioned last is the most relevant, where a public official actually becomes an employee, typically as a result of the outsourcing of an activity previously performed in the public sector. Es- sentially, this is also an example of transfer from the public sector to the private sector. In these situations, the employer must appropriately apply the provisions of the Kttv. (Sec- tion 72 of the Kttv.) pertaining to changes in legal relationships (Subsection (3) of Section 229 of the Kttv.). The change in legal relationships is quasi-automatic here, and this rule builds a direct link between the “two labour laws”.

At the time of change in legal relationship, the civil service legal relationship of the public official is transformed into an employment relationship (or a government service or civil servant relationship). The transformation of the legal relationship is actually automatic, and does not depend on the will of the public official (the law does not even oblige the employer to provide prior notification, and the person concerned does not need to express his or her consent). The transferee is to inform the person concerned about the occurrence of change in his or her legal relationship within thirty days after the transformation. However, the Kttv. precludes the occurrence of change in legal relationships in some cases (e.g. towards the Kjt. if, based on the provisions of the Kjt., the transferee employer may not establish a civil servant legal relationship with the public official transferred, or if there is a conflict of interest). In the latter, exceptional, case, the civil service legal relationship is ex lege terminated. If a legal relationship is terminated, the public official is entitled to receive severance pay.

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Within the general context of the relationship between labour law and civil service law, the set of rules described above indicates that, whereas the general rule for transfers from the private sector to the public sector is the termination of legal relationships, transfers from the public sector to the private sector typically result in a change in legal relationship and continued employment. At the same time, the regulation contains several exceptional techniques, as explained above. Even so, the somewhat inconsistent main theoretical message of the regulation is that, in the case of transfer from the private sector to the public sector, the public sector does not have a general obligation of continued employment, while this kind of obligation is imposed on the private sector in the case of transfers in the opposite direction (most probably due to the enhanced job security of public sector employees). Although the current set of rules described above raises a number of questions with respect to both the succession directive of the EU and the general aspects of economy and “justice”, generally it still indicates the fact, even in this “fragmented” form, that, as the key message of this study, private labour law and civil service labour law are organically and dynamically related to each other in terms of legal dogmatics and practice. This means that the links between the two areas are unquestionable, and this fact is independent of any fine-tuning induced by current legislative intentions making those links closer or looser.

3.4. Legal disputes

As explained in Section I, judicial practices in the labour law of civil service and the private sector have strong links to each other, and the application of law in the two areas is consistent, in spite of the different rules detailed. This consistency is exemplified by the existence of a uniform judicial forum, the court of public administration and labour. The existence of labour courts as independent courts is traditionally justified by client equality, the participation of auditors (from both the employers’ and the employees’ side), and the need for special skills and experience on the part of the judges.389 As a consequence of the specifics described above, labour court judges are able to make a decision in disputes arising in the areas of both private labour law and civil service law, irrespective of whether the given case involves an employment relationship, a civil service legal relationship or a service relationship. Labour court cases are only different in the subjective positions of the parties and the applicable detailed rules, but, as we see it, these discrepancies alone do not justify a distinction between judiciary practices in civil service law and private labour law, taking into account what was said in Section I.

At this point, it may be appropriate to make a brief mention of a specific forum for the application of law in civil service law, namely the Arbitration Commission for Govern- ment Officials, to which government officials may submit civil service complaints to assert claims arising from their government service relationship, among other things in such issues of high importance as the termination of the government service relationship, decisions in disciplinary or indemnity issues, or the unilateral modification of an

389 HANDÓ, Tünde: A munkaügyi jogviták intézmény- és eljárási rendszerének áttekintése. In: RÁCZ, Réka – H ORVÁTH, István (ed.): Tanulmányok a munkajog jövőjéről. Budapest, Ministry of Employment Policy and Labour, 2004. 256-257.

126 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research appointment. A decision by the Arbitration Commission for Government Officials does not necessarily result in the final resolution of the case, because the government official or the employer may lodge a complaint against it to the court within thirty days after its publication.

The existence of the Arbitration Commission for Government Officials basically indicates the independence of civil service law. The motives for its establishment include special skills and experience, comprehensive knowledge of the internal relations in public administration390, and the need for agility and cost-effectiveness, which are also regularly mentioned as advantages of alternative dispute resolution391.392 Let us note here that this internal mandatory forum for legal remedy, partly aimed at avoiding labour court litiga- tion, reflects the efforts also seen in corporate cultures in the competitive sector aiming to resolve disputes, where possible, “in-house”, rapidly and effectively.393 Therefore, the existence of the Arbitration Commission for Government Officials strengthens convergence between the private sector and civil service. Since one of the key questions of internal forums is independence and impartiality, the regulation requires the civil service commissioner in charge of a given case to act independently and impartially, reject any attempts to influence the decision, and show fair and impartial behaviour with the complainant. Civil service commissioners are independent, make their decisions on the basis of the applicable regulations and in accordance with their free will, and cannot be influenced or directed in connection with their actions for legal remedy [Subsections (2)-(3) and (5) of Section 8 of Government Decree 168/2012 (VII. 20.) on the Arbitration Commission for Government Officials].

Since Arbitration Commissions for Government Officials have been operating for just a little more than one year now, it would be unjustified to draw far-reaching conclusions, but let us point out that the success of this institution, similarly to labour courts, also largely depends on whether it will be able to satisfy the above requirements that called it into being, and whether it will be able to eliminate or minimise any negative circumstances affecting its operation (e.g. is publicity ensured?394, is it able to manage problems arising from the inequality of the parties?395). Note that the Arbitration Commissions for

390 Also note, however, that in the same way as a judge does not normally need to know all profession-specific rules of every occupation in the competitive sector, or all written or unwritten rules of the various occupa- tions, it is generally not necessary either to possess profession-specific skills in each area of civil service. On the contrary, it is undoubtedly a great advantage of internal forums that the decisions are made by persons who are aware of the context of the dispute and are familiar with the subject matter. 391 RÚZS MOLNÁR, Krisztina: A mediáció az alternatív vitamegoldás rendszerében, különös tekintettel munkajogi szerepére. Doctoral thesis, Szeged, 2005, http://www2.juris.u-szeged.hu/juris/tartalom/docs/doktori/ RuzsMK_ertekezes.pdf (Letöltve: 30 November 2013). 392 See http://kdb.gov.hu/index (Date of download: 30 November 2013). 393 On alternative resolutions for disputes: l. RÚZS, MOLNÁR op. cit. 158. 133-135.; KOLLONAY, Csilla: Az egyéni jog- viták elbírálásának alternatív-intézményrendszere. In: RÁCZ, Réka – HORVÁTH, István (ed.): Tanulmányok a munkajog jövőjéről. 2004, Ministry of Employment Policy and Labour, Budapest, 303-331. 394 Pursuant to Subsection (1) of Section 9 of Government decree 168/2012. (VII. 20.) on the Arbitration Com- mission for Government Officials the hearing for the plaintiff and the employer is not public. 395 See RÚZS MOLNÁR i. m. 158. 135-136.

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Government Officials can most probably only be objectively evaluated based on the number of complaints and subsequent labour lawsuits following the decision, as well as based on the results of those lawsuits.

3.5. Employment relationships with publicly owned employers

The need for special rules governing employment relationships with publicly owned employers represents a general and long-lasting endeavour in both international and Hungarian labour law. International experience shows that the labour law of many countries regulates the labour law of “public companies” separately.396 This is because, even though these companies have a private law status, they mostly provide services in the interest of the public and are run using a large amount of public funds (meaning they are special market players).397

In Hungary, the problem originated in the fact that that employers owned by the public but having a private law status, as well as the employment relationships established with them, have been (since 1992) subject to the general rules of the Mt., since the Mt. basically relies on a sector-neutral logic. As a result, such legal relationships were also subject to the general rules and principles of private labour law. However, the principles of private labour law, built around individual autonomy and freedom of contract, often led to abuse, extensively covered by the press and frequently resulting in public out- cry, and did not really guarantee the responsible and efficient management of public funds.398 Due to these phenomena, labour law needs to take up a special role in this respect, namely a function that is closer to public law, and is characterised by a mandatory tone and a “disciplinary” nature. Corresponding efforts had already appeared in law-making by the end of the 90s.399 A law exemplifying this endeavour is Act CXXII of 2009 on the more economical operation of public business associations. Looking at the legal nature of its provisions, this act focuses on three areas, containing rules governing employment relationships, setting special requirements for managers (not only ones in an employment relationship), and imposing obligations of a public law nature (e.g. with respect to disclosure).400

In this respect, regulations in the Mt. aim to extract the rules governing employment relationships established by publicly owned companies from the regulations pertaining to

396 Civil Service Law & Employment Regimes, The World Bank, 2001, http://web.worldbank.org/WBSITE/EX- TERNAL/TOPICS/EXTPUBLICSECTORANDGOVERNANCE/0,,contentMDK:20133489~menuPK:286 310~pagePK:148956~piPK:216618~theSitePK:286305~isCURL:Y,00.html (Date of download: 10 November 2013) 1. 397 For the problematic nature of public companies see HORVÁTH op. cit. (2006) 67. 134-137. 398 In more detail: BERKE, Gyula: A köztulajdonú vállalkozások munkajoga. In: KÉKI, Zoltán - NADRAI, Norbert (ed.): Kaposvári jogi beszélgetések 2010-12, Kaposvár, 2013., BERKE, Gyula: Kógencia és diszpozitivitás, HR & Munka- jog, October 2013, 42-47. 399 In more detail, e.g.: Government Resolution 2173/2003 (VII. 29.) (on the principles of remunerating the executive officers, supervisory board members and other managerial employees of business organisations under the majority control of the state, central budgetary institutions or social insurance institutions). 400 CompLex Munkajogi E-Kommentár, relevant chapter.

128 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research them, and reorganise them in the Mt. under the category of “atypical” employment relationships. On the one hand, the Mt. determines the group of employers owned by the public; on the other hand, it sets forth specific rules for employment relationships established with publicly owned employers. Without providing a detailed description of the rules here, it can be generally concluded that the regulation contains mandatory provisions in certain subjects with respect to both the collective agreement and the employment contract (e.g. period of notice, severance pay, working hours, rest periods at the place of work, travel time), and provides limitations regarding certain legal institutions (e.g. non-competition provision, rules pertaining to managers).401 As another, similarly public law-based, rule, an amendment to the act on the more economical operation of public business associations introduced the institution of mandatory regulations in this category.402 It is a common characteristic of these rules is that they mostly affect payments due to employees or, indirectly, their wages.

In the general context of the relationship between labour law and civil service law, the separate treatment of labour law regulations for publicly owned undertakings in the Mt. indicates that there are indeed some specific, mixed types of regulatory areas at the inter- section points of private labour law and civil service labour law. The regulations for legal relationships with publicly owned employers may provide a basis for several important preliminary conclusions with respect to our topic, the general issue of making a distinction between branches of law. First of all, this set of rules expresses that we cannot draw a clear dividing line between labour law and civil service law. Instead, these are “floating”, converging borders, with a lot of transitional areas (an example of which is the labour law of publicly owned undertakings).403 Second, these regulations break away from the formerly strictly sector-neutral approach of the Mt. as, with their special provisions for certain types of employment relationships, they apply a different approach to employment relationships established by “public companies”, which represent a kind of quasi public sector,404 or at least a borderline area between the public sector and the private sector. Third, the logic of this set of rules essentially contradicts the very foundations of all views suggesting a rigid distinction between labour law and civil service law as separate branches of law. One of the traditional (and oversimplifying) arguments of the views supporting such a distinction is that labour law is based on private law-oriented and permissive rules, whereas civil service law is determined by public law and an approach of a mandatory

401 See Sections 204-207 of the Mt. 402 Subsection (3) of Section 5 of Act CXXII of 2009. Accordingly, the main body of publicly owned business associations must, within the constraints of this Act and other regulations, set forth rules for the remuneration of executive officers, supervisory board members, and employees subject to Section 208 of the Mt., as well as for the method, extent and system of benefits provided in the case of terminating a legal relationship. Such regulations must be filed among company documents within thirty days after their acceptance. 403 For instance, based on Freedland, Morris points out that a quasi-intermediary third area of labour law could be identified between the labour laws of the private and public sectors, regulating the labour issues of a quasi market-oriented sector. The labour law of public companies also belongs to this category. Cf. MORRIS op. cit. 69. 173. 404 Or, looking from the other side, a quasi market-oriented sector.

129 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research nature. However, the regulation of employment relationships established with publicly owned employers formally belongs to private labour law, but content-wise it provides characteristically public law-based rules of a mandatory nature. This supports the idea that labour law and civil service law are organically linked to one another and a rigid dogmatic distinction between them, for example based on public law/private law, mandatory/ optional nature, public/private financing, etc., is unrealistic.

3.6. Other overlaps and borderline areas

A close link between labour law and civil service law is also demonstrated by the existence of rules that, under certain circumstances, require the application of some provisions of civil service law in the sphere of private labour law, or the application of labour law provisions in the sphere of civil service. Below we provide a non-exhaustive description of some typical groups of cases for the purposes of illustration.

The following example may illustrate the first case (application of a provision of civil service law in the sphere of private labour law). Already the former Act on public education (Act LXXIX of 1993) and the Act on social governance (Act III of 1993) included a provision extending the rules for remunerating civil servants (minimum wage) to employees subject to the Mt. working for educational or social institutions in the private sector (e.g. church or private institutions). A basically similar technique is used in connection with the remuneration of university lecturers employed at institutions of higher education. Furthermore, Act CXC of 2011 on national public education stipulates along the same principles, with respect to the teacher career model, that its provisions do not only apply to civil servants but also to the workers of educational institutions subject to the Mt. (Sections 64-65).405

In the second group of cases (application of labour law provisions in the sphere of civil service), the following examples can be mentioned, on a non-exhaustive basis, only for the purpose of illustration. Even though it is normally not possible to establish an employment relationship with the employer subject of a civil service legal relationship, this may occur in exceptional cases according to Section 258 of the Kttv. Pursuant to Section 258 of the Kttv., employees working for public administration bodies are subject to the provisions of the Mt. (with certain derogations according to Section 258 of the Kttv.). It is a general characteristic of public service legal relationships, which also belong to civil service law in its broader sense, that they are subject to the provisions of the Mt. with the derogations specified in the Kjt. Subsection (3) of Section 2 of the Kjt.]. This link has become even stronger since the entry into force of the Mt. as manyformer public law-based elements of civil service regulations were also replaced by the provisions of the Mt.406

405 Cf. BÉRCES, Kamilla: Problémák, megoldási kísérletek és kitörési pontok - a közalkalmazotti illetményrend- szer változásai. HR & Munkajog, September 2013, 22-25. 406 Kamilla Bérces points out in this respect that, in the long term, this “may be a foreshadowing of the dilemma whether or not civil service regulations should be separated from general labour law, a question which will have to be answered by future developments in law.” BÉRCES, Kamilla: Tendenciák a közszféra jogviszonyainak megszüntetésével kapcsolatban. HR & Munkajog, November 2013, 28-29.

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Another technique commonly used is the creation of special labour law provisions providing a uniform framework for given professions or sectors independent of legal relationships, i.e. applying to every affected type of legal relationship in the private and public sectors alike. for example, this was the motive of Act LXXXIV of 2003 on certain aspects of performing healthcare activities. Also, the current version of the regulation on compulsory minimum pay is actually used as a relationship-independent, comprehensive provision of labour law. For instance, Government Decree 390/2012 (XII. 20.) on determining the compulsory minimum pay (minimum wage) and the guaranteed wage minimum stipulates that it is applicable to all employers and employees. For the purposes of that Decree, the term employee incorporates those in a public service, government service or civil service legal relationship as well (i.e. not only employees subject to the Mt.).

The above regulatory techniques generate strong convergences and synergies between labour law and civil service law as the scope of certain legal institutions of those spheres tend to extend into the other sphere, indicating, again, close links between the two areas.

3.7. Public procurement and labour law

In the context of investments and services realised through public procurement and state aid, the state is actually an indirect employer of the employees of the economic entity implementing the public procurement project since wages are ultimately covered from public funds. This results in the dilemma whether the state has at least a moral obligation, as a kind of “model employer”, to guarantee decent working conditions and reasonable wages for the implementing entities of public procurement projects.407

Socially responsible public procurement and the inclusion of social clauses in public contracts is not common practice yet in Hungary. This regulatory technique recognises and enforces the ability of the state, as a quasi model employer, to induce players in the competitive sector, through financial, market-based incentives in its procurement projects, to follow certain public objectives (e.g. compliance with labour law).408 As far as labour law is concerned, public procurement can generally follow three basic objectives or models.409 First, as a kind of filter, economic entities that have earlier committed serious breaches of labour law can be excluded from public contracts. As a second model, public procurement may serve the objective of complying with existing authoritative labour law regulations, actually as an additional, indirect, contractual guarantee for the enforcement of the provisions of labour law (this model is essentially followed by ILO Convention

407 In more detail: KUN, Attila: Az állami beszerzések szerepe a felelős foglalkoztatásban − szociálisan felelős köz- beszerzés és munkajog. Esély, 2013/4. 408 HOWE, John – LANDAU, Ingrid: Using Public Procurement to Promote Better Labour Standards in Australia: A Case Study of Responsive Regulatory Design. Journal of Industrial Relations, Volume 51, Number 4, 2009. 575-589. 409 Cf. KILPATRICK, C., Internal Market Architecture and the Accommodation of Labour Rights: As Good As it Gets? EUI Working Paper, 20011/04, Florence 2011.

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No. 94410). The third approach goes further than simply complying with the minimum requirements of labour law and wishes to meet certain more complex expectations with an “extra” social content through public procurement. The latter approach is essentially based on the idea that, based on its purchasing power, the public sector may be able to induce positive social changes in the private sector. The paradigm of corporate social responsibility (CSR) is an important contributor to the popularity of this idea.

There is currently an important and progressive legal development in the EU in the field of social procurements. Already the existing public procurement directives of the EU allow public authorities to apply social clauses promoting the protection of employment conditions in public procurement and outsourcing, but further developments are expected in the future. The current generation of public procurement directives is essentially based on Directives 2004/17/EC411 and 2004/18/EC412.

In 2011, the Commission published a guide on socially responsible public procurement, explaining how social considerations can be integrated into procurements, respecting at the same time the existing EU framework.413 The document sets up the term Socially Responsible Public Procurement (SRPP414) and describes its advantages. According to the Commission’s definition, “SRPP means procurement operations that take into account one or more of the following social considerations: employment opportunities, decent work, compliance with social and labour rights, social inclusion (including persons with disabilities), equal opportunities, accessibility design for all, taking account of sustainability criteria, including ethical trade issues and wider voluntary compliance with corporate social responsibility (CSR), while observing the principles enshrined in the Treaty for the European Union (TFEU) and the Procurement Directives.”415 SRPP can be a powerful tool both for advancing sustainable development and for achieving the EU’s (and Member States’) social objectives. The document also provides a legal explanation of how social aspects can be applied at various stages of a public procurement procedure. A Green Paper created by the European Commission in this subject416 reviews the possi- bilities of further developing the principles of public procurement, among other things, in the light of social considerations. In addition, a new Communication by the Commission

410 Convention No. 94 of the International Labour Organisation (ILO) on labour clauses in public contracts (1949) calls governments to include in their procurement procedures reasonable wage regulations and other measures. 411 Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors. 412 Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. 413 “Buying Social: A Guide to Taking Account of Social Considerations in Public Procurement”, European Com- mission, 2011. 414 Socially Responsible Public Procurement. 415 “Buying Social: A Guide to Taking Account of Social Considerations in Public Procurement”, 180. 7. 416 GREEN PAPER on the modernisation of EU public procurement policy - Towards a more efficient European Procurement Market Brussels, 27.1.2011. COM(2011) 15 final.

132 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research on corporate social responsibility (CSR)417 also calls member states and public authorities operating at various levels of public administration to take advantage of every opportunity provided by the current legal framework of public procurement to take into account social considerations. According to the intentions of the Commission, the better integration of social (and green) aspects into public procurement should be made easier as part of the review of public procurement principles. In the public procurement law of the EU, the reform process started in 2011.418 The final rules are expected to be accepted in late 2013 at the earliest (or in early 2014). The proposal is largely built on the former regulation, but, as one of its key objectives, it aims to enable procurers to better use public procurements for supporting comprehensive social objectives.

In Hungary, the awareness and recognition of social procurement is still quite low. Some aspects of the subject are marginally discussed in Hungarian law under the heading “proper industrial relations”.419 At the same time, it can generally be seen that in Hungary it is almost only rules of an “exclusive” nature that are of importance, and even these to a decreasing extent in recent years, while the use of positive (incentive) social clauses is under-regulated (and not commonly used in practice).

The idea of socially responsible public procurement and social clauses may lead us to important conclusions, with relevance beyond this subject as well, regarding the links between labour law and civil service. First of all, this correlation indicates the dynamic and innovative link between the public sector and the private sector, as well as between public law and private law, in general, and underlines the importance of the public sector (state) as a quasi model employer.

4. Conclusion

All in all, as we see it, civil service law is not an independent branch of law but a special area of law within labour law.420 It is erroneous to make an artificial distinction between areas of law governing very similar real-life conditions.421 Therefore, civil service law is an independent area of law, predestined by the method of regulation. However, civil service law cannot be treated separately from labour law (primarily because of the close similarities between the regulated real-life conditions). As a result, the hypothesis claiming that civil service law is more and more distinct from classic labour law and, in the light of certain criteria of differentiation, it is a separate branch of law is in our view false.

417 A renewed EU strategy 2011-14 for Corporate Social Responsibility, Brussels, 25.10.2011; COM(2011) 681 final. 418 E.g. Proposal for a Directive of the European Parliament and of the Council on public procurement, COM(2011) 896 final. 419 The term appeared in the legal system through Act CLXXVII of 2005, and has changed a lot in recent years. The conditions of proper industrial relations and the methods of certifying such employment are currently covered by NGM Decree 1/2012 (I. 26). 420 Cf. MÉLYPATAKI op. cit. 42. 64. 421 ZACCARIA op. cit. 41. 120.

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Also note that the determination of branches of law can be greatly and legitimately, influenced by the intentions of lawmakers (the state), since branches of law do not only emerge themselves, but are also artificially created. Furthermore, the separation of a given area of law may indicate the beginning of the establishment of a branch of law. Considering these two aspects, we cannot entirely rule out the development of civil service law into an independent branch of law in the long term. However, Hungarian law is not yet at this stage, and the international developments described above do not suggest a tendency of increased separation either. Also, it is certain that civil serv ice law could never be entirely detached from labour law (e.g. due to their common set of basic concepts, overlapping impacts on the labour market, etc.). Overall, it must also be noted that, as shown above, a way of thinking based on branches of law is generally less and less relevant and characteristic.

We may ask at the same time: Is the development of civil service law into an independent branch of law a prerequisite for, or maybe an unavoidable accompanying phenomenon of, a properly functioning civil service system?422 In our view, the correct answer is no. The existence of individual branches of law is never a value or a necessity in itself; without them, the relatively distinct and related sets of norms (e.g. as an area of law) would not disappear and would not be less valuable. Branches of law express the structured nature of the legal system and are of the most importance for legal science and legal education. However, this is not to say that the labour law regulations of the private and public sectors can be treated as uniform, because that would disregard some obvious differences between the two areas as explained above. Therefore, it may be more appropriate to differentiate between private labour law and civil service labour law, which are similar and different at the same time, within the umbrella category of labour law.

As mentioned above, potentially developing into an independent branch of law would not necessarily lead to beneficial consequences in the labour market since extensive professionalisation and too much distinction between individual spheres of occupation would, in addition to reducing job safety in the general labour market, not guarantee the security of employability and mobility between the public and private sectors.

The above study also reviewed various phenomena that increase or decrease the gap between labour law and civil service law. We can conclude that these opposite processes are present simultaneously and in combination with one another in today’s law-making and law application.

422 Cf. HORVÁTH op. cit. (2005) 8. 87.

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MÁRTA BOKODI - GÁBOR SZAKÁCS: CHARACTERISTICS OF CIVIL SERVICE ORGANISATIONS AND HR MANAGEMENT

1. Interaction between the functioning of the organisation and HR management

From the point of view of HR management – especially when applying a strategy-based, integrated and systematic solution – special attention should be paid not only to factors influencing the external environment of the activity (macroeconomics, globalisation, competitors, society, politics, cultural factors, the predominant technology, legal and regulatory systems, the labour market, clients, the state, local communities and employee communities),423 but to the effects of the internal environment as well. Of these effects from the internal environment attention should be paid – amongst others factors – to the decisive processes of the functioning of the organisation concerned, the characteristics of internal regulation, strategy, local employee organisations424, organisational structure, management system, culture, the established pattern and practice of information flow and communication, as well as the dominant elements of relationships and interaction between the staff.

The evolution of civil service organisations has come a long way. The initial steps and organisation theory analyses can be learnt from the works of Hattenhauer, J. S Mill, Mosca, Schmoller and others.425 The characteristic features of bureaucratically organised modern public administration were formulated by Max Weber, in a form which is valid in the long run. In the spirit of reason, as opposed to charismatic and traditional domination, Weber gives predominance to legal domination, with bureaucracy as its most obvious and well-established form.426 Weber describes the structure of bureaucracy with the following characteristics: – division of official tasks (division of labour); – system of decisive competences (competence and decision-making powers); – delineation of performance tasks (office, terms of reference or status); – chain of command required for performance (power to give orders); – overall regulation independent from persons (acts of law and other rules); – an apparently qualified staff,

423 BAKACSI-BOKOR-CSÁSZÁR-GELEI-KOVÁTS-TAKÁCS: Stratégiai emberi erőforrás menedzsment KJK KERSZÖV Budapest, 2000. p. 51 424 GYÖKÉR, Irén – FINNA, Henrietta – KRAJCSÁK, Zoltán: Emberi erőforrás menedzsment Budapesti Műszaki és Gazdaságtudományi Egyetem Budapest, 2010.14. 425 See in summary: KIESER, ALFRED: Szervezetelméletek (Organisationstheorien) Aula Budapest, 1995. 47-56. 426 WEBER, Max: Gazdaság és társadalom (Wirtschaft und Gesellschaft) 1. KJK Budapest, 1987. 227

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– official hierarchy (a set of authorities in a hierarchy, sub- and super-ordination, supervision exercised by superiors, coordination and harmonisation of terms of reference, vertical delineation of responsibilities, a ban on the withdrawal of cases, a strict division of powers and competences, the use and strict regulation of coercive means, the settlement of conflicts by higher authority, setting and routing opportunities for appeal); – the office is managed through technical rules and standards (there is a path for tasks); – the performance of tasks is based on documents and files (stress is put on the “file type” for all procedures, which also characterises the interaction of staff working at the office and it can ensure business continuity and written procedures).427

The ideal type of Weber's bureaucracy has often been criticised, in various ways - sometimes which misunderstand its very essence. Despite the transforming impact of multiple and diverse changes occurring in the meantime and of other factors such as legitimate or undue critical observations and newer and newer ideas for improvement, the majority of these highlighted principles for the functioning of civil service still exist and constitute a system. Such factors still impact day-to-day operations, the conduct of civil servants, management and organisational culture. In contrast to the above, or because of it, life seems to have increasingly passed by the organisational structure and systematic operation of bureaucracy in a variety of ways. All over the world, including Hungary, new ideas keep surfacing in order to make bureaucratic structures better, more effective, focussed on people, etc. The objectives above have given rise to movements such as – New Public Management; – New Governance "school" (no longer considering the state as an exclusive decision- maker); – Good Governance (professing a value- and participation-based approach); – Good Government (viewing government as a solution to problems), and – Neo-Weberism (offering ideas to cut back the state).

Such theories, surfacing in more or less practical activities, may well be mutually contra- dictory, but they still provide new elements to Weberian principles on government, bureaucracy and the operation of civil service.428 It has become increasingly clear to stakeholders that human resources management within civil service shall, on the one hand, adapt to permanent changes and shifts in direction and emphasis, and, on the other, face challenges and tasks pro-actively, by creating values. Work in the field of HR management should enrich the entire civil service, the management system, management changes, the improvement of organisational culture and – last but not least – managers and staff employed by the service with new and useful methods, solutions and tools. At the same time, such complex activities should have a 427 WEBER i. m. 226-227. 428 See in more detail: JUHÁSZ, Lilla Mária: Három irányzat a közigazgatás-tudomány fogalomtárából, avagy a New Public Management, a New Governance és az újweberiánus szemlélet vizsgálata http://jesz.ajk.elte.hu/ juhasz47.html (letöltés ideje: 2013 11 13.); GAJDUSCHEK, György: A „Run like a business” jelszó ideológiakritikája http://www.kozigkut.hu/doc/gajduschek_09szept.pdf (letöltés ideje: 2013.11.13.); GAJDUSCHEK, György: Gov- ernance, policy networks – informális politikai szereplők a döntéshozatalban http://www.poltudszemle.hu/ szamok/2009_2szam/2009_2_gajduschek.pdf (Date of download: 13 Novmber 2013.)

136 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research positive impact on processes destined to ensure and serve a higher level of satisfaction of societal expectations.

Due to a complex set of reasons, it is very difficult to assert these above objectives in any case. This is especially so when faced with a frequent criticism affecting the whole of civil service or some of its organisations, according to which civil service demonstrates little interest in external environmental impacts and is rather self-centred, focussed on its own internal issues. Such an attitude – provided there is any truth to it – should be transformed by systematic work, for a variety of perspectives. Smart openness is required to receive and incorporate solutions and methods that may become useful for civil service and its staff. Taking into consideration best practice from all over the world, it appears increasingly clear that civil service, while safeguarding its basic values and upholding its main pillars, should mitigate its closed structure, regulatory framework and organisational culture. A shift to more open and flexible solutions should be directed by conscious strategic thinking, adopting a systematic view. The success of shifting towards such a direction of change will be fundamentally determined by the ability of civil service to focus on its most essential resources, humans (staff and supervisors alike) creating unique new values capable of constant development and innovation, providing them with a liveable and attractive working environment and appreciation, and consequently keeping them within the system for the long run - maybe even for their whole career.

From the point of view of civil service, work ethics and attitude, loyalty, commitment, professionalism, quantitative and qualitative performance of the workforce in its day-to-day activities are not without interest, either. Furthermore, the environment and conditions offered by the organisation for the implementation of the expected requirements and performance are also highly important. Do they provide incentive, motivation and a vested interest for the stakeholders to stay within the workforce and perform excellent work, or, to the contrary, do they create a situation that – albeit unintentionally – decreases the performance rate and encodes fast burnout and abandonment of careers into the operation of the system. For each organisation, including civil service staff, how they view their managers' – especially top managers' – acts, competence, attitude, views, management style and practice, relationship to people, and a number of other issues are of decisive importance. Research evidence demonstrates how the foreseeable, visible, sensible or encoded effects of organisational operation and the activities of managers are able to weigh down performance even at the level of the organisation, by demoralising individuals. Such research has directed attention to the importance of the following factors: – work overload will lead to a decrease in performance if an individual is required to complete an unrealistic amount of work or a variety of activities by keeping short deadlines and with little managerial support; – lack of autonomy, when employees are made responsible for their work without giving them a say in what and how they will do it; – the practice of "micromanagement" will have the undesired effect of shackling the workforce with rigid rules even when they would undoubtedly better know their own tasks

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and what to do; Such a solution will only diminish the sense of responsibility, problem- solving ability, flexibility, innovativeness and willingness to take the initiative; – meagre incentives (compensation and remuneration) can also have a detrimental effect on performance, since unchanged or even decreasing salaries and benefits, paired with overload, limiting autonomy and curbing pro-activeness will take away one of the most essential motivating factors from the workforce, the enjoyment of work; – losing contact will lead to overload, for example, ad hoc assignments, frequent changes in tasks and place of work and organisational restructuring will lead to increased isola- tion, which will in turn weaken commitment to team work, affect the performance of the team and enjoyment derived from joining forces, giving rise to conflicts and weakening or destroying collective history and organisational culture; – unfairness, manifesting primarily in unequal and unjustifiable treatment of staff, will lead to inequity and hurt feelings. The conscious or inadvertent lack of frank and open communication will increase the sense of injury, cynicism, alienation and result in a loss of enthusiasm and commitment to responsibilities. Unfairness can appear anywhere in the labour market. Whether in terms of salaries, remuneration, the division of tasks, the definition of requirements and expectations, or appraisal, finger-pointing, etc.; – the last factor able to decrease performance is manifested in a conflict of values. This is when the principles and set of values of the employees clash with the standards and values prescribed and demanded by the organisation. Tasks that go against chosen values clearly demoralise managers and staff alike, moreover, they challenge their faith in work and the honour of their performance of work.429

Organisations that do not commit the above mistakes in the performance of their tasks and mission can be called emotionally intelligent and conscious organisations. Emotion- ally developed organisations and emotionally intelligent managers possess the ability to attain high performance in the long run, keep their competitive edge and operate the organisation successfully, cost-efficiently and effectively at the same time. Furthermore, they are able to harmonise the interests of the organisation with those of the individuals, ensure a high level of employee satisfaction, motivation, commitment and loyalty by attracting into, and keeping within the organisation the best and brightest of the workforce.

Close correlation and interaction can be observed between HR management and the internal and external factors influencing the organisation concerned, such as structure, operation, regulation, predominant management style and set of expectations. Put bluntly, the HR management function can and should do everything possible within the given circumstances, conditions and accepted organisational strategies – including HR strategy –“ as well as what is expected from it by senior management and decision-makers. In contrast to, or on account of the above, the responsibilities of HR managers, experts, special- ists, generalists and administrators should not be limited to implementation, but include the ability to make suggestions using their expertise for the continuous improvement of the operation of the organisation, for the introduction of new, more effective methods and

429 GOLEMAN, Daniel: Érzelmi intelligencia a munkahelyen (The Emotionally Intelligent Workplace) SHL Hun- gary Kft. KJK Budapest, 2002. 409-411.

138 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research for the adoption of best practice when adapting as required. HR workers should provide managers with methodology support and help them roll out strategic concepts and strategic thinking; support change management, the improvement of organisational culture, the on-going development of organisational communication and information flow, the harmonisation of the interests of the organisation and those of individuals; and – among other things – ensure the representation of employees. Their responsibilities and tasks are essential and complex, and chances are that they can only be performed successfully when – aware of the circumstances and conditions of the operation of the organisation – opportunities for HR management can be filtered out, selected and put in the service of performing the above expectations.

2. On the research430

The study of interactions between the operation of the organisation and HR management has constituted an organic part of comprehensive and complex research launched in two functional areas in the autumn of 2013 in order to develop a new career-based system for Hungarian civil service. In the first case, the researchers of the legal working group assigned to the work had to concentrate on the operation of civil service within the strict meaning of the term for a multi-faceted study of the legal environment determining the activities and work performance of each professional, with special focus on the analysis of the potential for differentiation, standardisation and autonomous legal development.431

2.1. The objective of the research

In the second case, the researchers of the HR working group started to work for the implementation of the three objectives formulated for HR management within civil service. – The first objective of the research was to elaborate a strategy-based integrated HR management systems model indispensable for the introduction of the civil service career path adapted to the potentials and expectations of Hungarian public administration in order to ensure state-of-the-art operation. – The second objective of the research was to develop a complex analysis of the situation to provide a sound basis for the formulation of reliable responses in respect to the following: • the composition of the workforce in civil service, its determining indicators and trends and movements observed in that environment, •the level, functional areas, methods and effectiveness of HR management in civil service, the extent to which the present environment (civil service as a whole and the par-

430 For publications on the objective, method and hypotheses of research in more detail, see: DR. SZAKÁCS Gábor: Stratégiai alapú, integrált emberi erőforrás gazdálkodás a közszolgálatban (résztanulmány). ÁROP-2.2.17 “New civil service careers / HR management and civil service career research” subproject study implemented within the key project of the Ministry of Public Administration and Justice 2013 9-18 (quoted word-for-word in part) 431 The part of the research indicated above is presented in the sub-studies and summary developed by the members of the legal working group.

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ticular functional area concerned) may be suitable to receive what has been defined within the strategy-based integrated HR management systems model, potentials and opportunities of setting up a system, •the expectations of civil service workforce for the functional area and people working there, and how HR managers evaluate and view their own activities.

– The third objective of the research was for the researchers to formulate their key findings and recommendations, as well as the potential forms and modalities their implementation could take, on the basis of facts, data and information gathered during research.

By examining the scope of issues processed in the sub-study we wished to contribute to the implementation of the second and third objectives of the research.

2.2. The method of the research

Regarding the first objective of the research, for the development of a strategy-based integrated HR management systems model we strived to use all the available professional and scientific achievements considered useful either directly or indirectly for the successful accomplishment of the exercise. As much as possible, we intended to build upon best practice and solutions that have proven viable either in part or as a whole, in theory or practice. Over almost twenty years we had been able to assist the development of a number of HR processes and functions within civil service, and tried to put experience gathered in that way to the best creative use. The best inspiration has been getting acquainted with the Strategic HR management model432 published by Attila Bokor, which is - supplemented by some other elements - in our view suitable to become the basis for the civil service systems model. The model has been adapted to civil service and theoretically supplemented.

In order to accomplish the second objective of the research we have decided to use two methods. An online questionnaire has been elaborated under the working title of “Közszol- gálati humán tükör 2013” ("Civil Service HR Mirror 2013") to be filled in automatically, to enable us to gather high quantities of information encompassing the key areas of civil service. The unusually long questionnaire, consisting of 156 close-ended questions was divided into three sections, each segmented into further divisions.

432 BAKACSI-BOKOR-CSÁSZÁR-GELEI-KOVÁTS-TAKÁCS: Stratégiai emberi erőforrás menedzsment KJK KERSZÖV Budapest, 2000. p. 43-75.

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num- number of Individual sections and divisions ber questions I. The raw data of research I.1. Questions concerning the person and status of the interviewee 1 – 16 Questions regarding the work performance and mobility of the I.2. 17 – 21 interviewee Supplementary information concerning the managers intervie- I.3. 22 – 26 wed Questions on the evaluation of the work performed by the HR I.4. 27 – 40 management division The eff ectiveness and impact of HR activities and expectations I.5. 41 – 43 for HR staff On the current situation and vision of HR management in the II. light of the new systems model On the HR process of strategic planning and systems develop- II.1. 44 – 50 ment II.2. On the HR process of work performance systems 51 – 71 II.3. On the HR process of the civil service career paths (HR ﬂ ows) 72 – 97 II.4. On the HR process of HR development 98 – 115 II.5. On the HR process of performance management 116 – 128 On the HR process of incentive management (compensation II.6. 129 – 134 and remuneration) II.7. On the HR process of personnel services and activities 135 – 146 III. On the organisation and relationships within the organisation 147 – 156 Supplementary open-ended questions (1. comments and remarks concerning the questionnaire; 2. what was missing for you from the questionnaire; 3. in which area would you request a more detailed survey). Supplementary close-ended question: Would you like to be informed on the result of the survey?

Table 1: Structure of the questionnaire for the “Civil Service HR Mirror 2013” research

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The questionnaire survey was conducted with probability sampling, using a randomly layered sampling procedure in October and November 2013. Upon orientation gathering based on preliminary verbal and written enquiries, out of the organisations willing to cooperate we tried to set up a representative sample which would cover: – particular functional areas within civil service (state administration, municipalities, law enforcement, defence); – their characteristic structures (central, regional and local organisations) and status categories (government officials, civil servants, professionals and public sector employees), and; – managerial and employee staff categories (top managers, HR senior managers, middle managers, HR middle managers, employees, HR employees). The purpose of including this criterion was to get a well-rounded snapshot view of the topic by using the so-called 360-degree evaluation.

Ultimately, the research was conducted involving officials from 38 state administration organisations, 26 municipalities and 24 law enforcement organisations. That scope covered the distribution of functional areas according to structures and staff categories. In spite of that, for a variety of reasons, we could not fully accomplish our preliminary intentions. We very much regret having received so few assessable questionnaires from the defence sector, which therefore could not ensure credible processing without distortion, so we have chosen not to publish and process the available results on that functional area. Before launching the study we had to ponder whether or not it would be possible to repeat the exercise of such a comprehensive survey in the near future. Seeing little probability for that, we took the risk to compile an unusually long questionnaire which would require the interviewee to spend an hour and a half or even two hours to fill in attentively. Taking into consideration experience from former research, we knew in advance that the majority of interviewees would be unable to fulfil this task "in one go". As a solution to that problem, a code was allocated to each e-mail account addressed, so as to allow the interviewee to return to filling in the questionnaire. Of course, by allocating codes we contributed to a lack of confidence. At the request of some organisations we enabled filling it in without a code, but in such cases we had to face the possibility that few people would undertake to fill in the whole questionnaire without interruption. This is what happened in the majority of cases, but there were still quite a few interviewees who accomplished this voluntarily undertaken task.

In spite of all the difficulties, we addressed the questionnaire to a total of 18,175 e-mail accounts (17,358 with, and 818 without a code attached). That amounted to 11.17 % of the total headcount (162,649 persons) covered by the research. The questionnaire was clicked on by 4,485 persons in total, representing 24.67 % of e-mail account holders addressed, or 2.76 % of the total workforce involved. Willingness to respond showed a wide array of patterns by professional class- es and organisation, and the activity of filling in the questionnaire was uneven. Some people abandoned the task at a certain point, while others tended to omit questions but returned to respond later on. The questionnaire contained some points (48 in total) where only a range of pre-determined persons, e.g. managers, employees within a certain professional class or those actually employing certain HR processes and functions had to respond.

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State Public administrati- Civil service areas Municipalities Law enforcement administration on in total The scope of persons covered persons % persons % persons % persons % by the research total headcount 80602 49.6 31232 19.2 50815 31.19 162649 100 (persons) number of e-mail ac- 16970 21.05 319 1.02 887 1.74 18176 11.17 counts addressed (pieces) respondents of the questionnaire 3617 80.6 288 6.4 580 12.9 4485 100 (persons/%)

Table 2: Distribution of respondents by public administration functional areas From data used for evaluation it can be established that those starting to fill in the questionnaire predominantly came from state administration, 80.6 %, which accounts for 4.5 % of the total workforce of the professional class. Municipal respondents represented 6.4 %, which accounts for 0.9 % of staff working for the municipalities. The ratio of law enforcement staff represents 12.9 % of the total sample, which accounts for 1.1 % of staff in law enforcement. At the outset of the survey – as indicated above – we strived for broad representation, but already at that point we suspected that a survey without interview- ers and with data collection based on autonomous participation would harbour risks that could prevent the attainment of ratios corresponding to preliminary sampling. Regret- fully, our fears proved to be justified, since only in state administration can the results be deemed relevant. Thus, information received from municipalities and law enforcement was only used informatively. At any rate, with all of its hindrances and methodological shortcomings, our research may be considered as the beginning of a long road. Maybe it is a start to build on, continue and roll out further in the future.433

In addition to the quantitative method of a questionnaire survey, we considered it necessary to collect data from the civil service areas covered by also conducting structured interviews to obtain quality information. Such an observation-based qualitative technique allows exploration and analysis at the same time.434 By structured interviews we managed to involve a total of 63 persons (100%). Most of the interviewees came from state administration (34.9 %), law enforcement and defence (23.8 – 23.8 %). The ratio coming from municipalities was relatively law (17.5 %), but even that number of interviewees proved satisfactory to give us an adequate data source from that functional area as well.

433 For details, see SZAKÁCS, Gábor, DR.: On the the composition of the workforce in civil service, on managers and mobility at the workplace (sub-project study) implemented within the key project of ÁROP-2.2.17 “New civil service careers / HR management and civil service career research”, Ministry of Public Administration and Justice 22.10.2013 434 BARBIE, Earl: A társadalomtudományi kutatás gyakorlata Budapest, 2003 Balassi 153; KALAPÁCS János: Minőség irányítás technikák X-Level 2001. 517-523

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In order to achieve the third objective of the research, recommendations and implementation solutions were elaborated based on the findings using the following method. On the basis of information gathered, synthesised and evaluated using our research methods, sub-studies were compiled to briefly summarise – based on standard principles and according to previously discussed and subdivided topics – the most relevant theoretical issues for each functional area. The present research material can also be considered as such a sub-study. Supported by such theoretical foundations, each researcher elaborated their own topic. For the examination of each issue the breakdown by civil service functional areas was taken as a baseline and key analysis factor. Occasionally, where it was considered important, or significant differences were detected compared to the baseline analysis factors, the given sample was also examined in a breakdown by different positions and terms of reference, and also from the perspective of staff working in the HR area. At the end of the sub-study, suggestions and recommendations were formulated to help progress and the implementation of a new systems model, and supplementary tables, dia- grams and summaries were appended to the core text.

2.3. Research hypotheses

Before embarking on this research, we stated that as far as we know, at present the professional and methodological foundations, as well as HR, legal, economic and, inter alia, structural conditions required for the development and successful operation of strategy- based integrated HR management within civil service exist only in part.

However, we have also assumed that chances for the rollout of strategy-based integrated HR management will significantly improve by developing a job description-based system considered novel within civil service. Because the hoped-for objective can be attained as a result of consistent work based on a sound methodology, re-engineering HR functions into HR processes, and by providing a suitable legal background for the operation of integrated HR management, strengthening strategic thinking and a strategic view, enhancing HR activities to a strategic level and managing change efficiently.

Having said this, we also considered that the development of a new civil service career system could not be implemented without the institution of strategy-based integrated HR management within civil service.

3. Characteristics of relationships, organisational culture and management style within civil service organisations

The operation of civil service organisations is influenced and determined by a number of factors. From the point of view of our research focus, HR management, we thought it was important to establish the set of relationships and networking between managers at various levels of the hierarchy, employees, as well as internal and external clients. It was

144 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research of fundamental importance for building the future to clarify this issue and get a realistic picture of the atmosphere within the organisation, at the workplace, and of its personal relationships. This item in the questionnaire was primarily meant to detect the quality of relationships within the workforce, and further questions were asked to help supplement our understanding on how they viewed co-operation and communication. Perhaps it would have been better to ask separate questions about factors that can be differentiated so meticulously from one another, but we did not want to make the questionnaire even longer. We are well aware of the fact that relationships among individuals and colleagues are influenced by a number of additional factors, but we did not wish to extend the scope of this study, considering that the question asked would provide sufficient data. From the perspective of organisational operation and HR management, the environment – best described or characterised by the term "organisational culture" – is critical. Organisational culture drives almost everything from behind the scenes, and it has an overall impact, since all the values, beliefs, assumptions and views within the organisation are incorporated into organisational culture. It is advisable for employees to follow this if they intend to advance within the system and stay there in the long run. Almost all areas of HR management are confronted daily with potentials and obstacles presented by organisational culture. That is why we were curious to assess the values found in civil service operation, the role they played, and to what extent they could be regarded as predominant or less significant, as the case may be. From the perspective of the development of strategy-based integrated HR management it is essential to be aware of such values. The third set of issues to examine was the managerial attitudes manifested in the responsible day-to-day work of managers. Our focus was not to detect which of the managerial styles known from the literature they had adopted and considered as standard for them, but to see what sort of attitudes, managerial conduct and styles were characteristic of their managerial activities. The choices offered for response and evaluation in the questionnaire were compiled on the basis of our experience with management training courses conducted for civil service managers over the past twelve years.435

Thus, in order to assess relationships between groups of staff we wanted to see what kind of portrait we could get when asking them about their day-to-day working relationships, interpersonal communication and the status of co-operation. The next two tables demonstrate the aggregate results from the point of view of middle managers. Since the majority of respondents (81.1 %) came from employee staff, it is easy to understand that they placed the interpersonal and co-operation practices of senior managers "further removed" from them into a higher category than those of middle managers who were "closer" to them in the hierarchy. This particularly holds true of organisations with a large staffs and a more complex structure. There are also understandable – psychological, sociological, hierarchical, etc. – reasons to support the fact that, especially in the case of municipalities, there was a higher percentage of responses where they felt that the relationships of senior managers were problematic (sometimes even unsatisfactory) versus other senior managers, middle managers or clients within civil service (7.3 %), for example

435 Respondents were able to seek explanations for variables in the Help function of the questionnaire.

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Evaluation of interpersonal relationships among senior managers unsatisfactory problematic adequate good excellent state administration 2.3 4.2 38.5 35.2 19.9 municipalities 7.3 7.3 41.5 34.5 9.8 law enforcement 1.5 8.3 34.6 36.8 18.8 civil service 2.6 4.5 38.3 35.8 19.0 Evaluation of interpersonal relationships between senior managers and middle managers unsatisfactory problematic adequate good excellent state administration 1.9 4.4 39.1 38.5 16.1 municipalities 2.4 7.3 39.0 43.9 7.3 law enforcement 9.0 44.8 38.1 7.5 civil service 1.9 5.0 39.7 38.6 14.8 Evaluation of interpersonal relationships between senior managers and employee staff unsatisfactory problematic adequate good excellent state administration 4.4 7.3 42.4 32.6 13.4 municipalities 7.3 12.2 43.9 29.3 7.3 law enforcement 2.3 13.5 54.1 27.1 3 civil service 4.7 8.0 43.4 32.1 11.8 Evaluation of interpersonal relationships between senior managers and clients within civil service unsatisfactory problematic adequate good excellent state administration 2.9 4.9 42.8 35.7 13.7 municipalities 2.4 7.3 46.3 36.6 7.3 law enforcement 2.2 6.0 59.7 28.4 3.7 civil service 3.3 5.3 44.3 35.0 12.0 Evaluation of interpersonal relationships between senior managers and clients outside civil service unsatisfactory problematic adequate good excellent state administration 3.2 4.5 44 34.3 14.1 municipalities 4.9 2.4 43.9 41.5 7.3 law enforcement 0.7 7.5 58.2 28.4 5.2 civil service 3.4 4.8 44.9 34.2 12.6

Table 3: Evaluation of interpersonal relations, communication and co- operation concerning senior managers (the distribution of affirmative responses)436 (n=4485)

436 In the tables of the sub-study the highest values within each category are highlighted in various colours.

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It is noteworthy that the scope of municipalities includes respondents who consider interpersonal relationships between senior managers and employees unsatisfactory (7.3 %) or problematic (12.2%).437

In the evaluation of the activity of senior managers, some of those working in law enforcement also scored poorly. As people complained about interpersonal relationships among senior managers (8.3 %), relationships between senior managers and middle managers (9.0 %), or their contacts with employee staff (13.5 %), the given respondents considered this situation bad and ripe for change. At the same time it was good to see that a considerable ratio of respondents considered the relationships under scrutiny as rather good or excellent. Such positive phenomena can be built upon when developing the system. Tak- ing into account each of the potential responses for senior managers, the combined ratio of "good" and "excellent" scores falls within the 30.1 % to 55.6 % range. Respondents considered the interpersonal relations among law enforcement senior managers the stron- gest (36.8 and 18.8 %), while in the context of senior versus middle managers (38.5 and 16.1 %), relations with employees (32.6 and 13.4 %) and relations with customers within civil service (35.7 and 13.7 %), the highest scores were obtained by state administration. In the municipality sector senior managers appear to have established the best relations with clients outside civil service (41.5 and 7.3 %). Considering the position and terms of reference for municipalities, such a result seems to be natural, and hopefully there are only positive factors underlying the established ratios. At the same time, it should be kept in mind that from the perspective of organisational integrity, for example, the presented values may refer to some other, undesirable factors (such as dealing with matters "under the table" or making use of family ties and friendship).

The portrait presented of middle managers is somewhat different from that of senior managers. For one thing, in this case a smaller ratio of respondents have given negative marks, and even in the field considered adequate, the ratios were not as high as for senior managers. This may lead to the obvious conclusion that middle managers have got a closer relationship with the employee staff and clients under scrutiny.

437 In the tables, the most highly valued and negatively judged responses within each category are highlighted in grey. Data receiving the highest scores overall are highlighted in yellow, while those receiving the most "good" and "excellent" scores within different categories are highlighted in orange.

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Evaluation of interpersonal relationships among middle managers unsatisfactory problematic adequate good excellent state administration 1.4 3.2 37.9 42.4 15.2 municipalities 4.9 41.5 39.0 14.6 law enforcement 3.0 48.5 38.1 10.4 civil service 1.3 3.2 39.2 41.8 14.4 Evaluation of interpersonal relationships between middle managers and employees unsatisfactory problematic adequate good excellent state administration 2.1 3.5 36.4 42.0 16.1 municipalities 4.9 36.6 46.3 12.2 law enforcement 6.0 50 37.3 6.7 civil service 1.8 3.9 37.7 41.9 14.7 Evaluation of interpersonal relationships between middle managers and clients within civil service unsatisfactory problematic adequate good excellent state administration 1.6 2.7 39.7 41.4 15 municipalities 2.4 4.9 39.0 43.9 9.8 law enforcement 5.2 59.0 32.1 3.7 civil service 1.5 3.2 41.4 40.3 13.5 Evaluation of interpersonal relationships between middle managers and clients outside civil service unsatisfactory problematic adequate good excellent state administration 1.4 3.4 39.9 40.2 15.1 municipalities 2.4 4.9 36.6 46.3 9.8 law enforcement 6.0 57.5 33.6 3.0 civil service 1.5 3.9 41.4 39.6 13.5

Table 4: Evaluation of interpersonal relations, communication and co-operation concerning middle managers (the distribution of affirmative responses) (n=4485)

Taking into account each of the potential responses for middle managers, the combined ratio of "good" and "excellent" scores falls within the 35.8 % to 58.5 % range. (Senior managers scored lower than that.) The interpersonal relationships among middle managers (42.4 and 15.2 %) and their relationships with clients within civil service (41.4 and 15 %) were considered the best by those working in state administration. At the municipalities, middle managers' relations with employees (46.3 and 12.2 %) and with external clients (46.3 and 9.8 %) obtained the most "good" and "excellent" marks.

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The above two tables also show that when "good" and "excellent" marks are combined, the percentage values regarding the whole of civil service demonstrate the following: – relations of senior and middle managers with internal and external clients scored lower compared to other categories; – relations between senior managers and employees scored significantly lower than the combined values of "good" and "excellent" marks given to other categories.

Firstly, the data obtained may lead to the conclusion that in the operation of the organisation or at managerial level horizontal relationships do not function as efficiently as the effectiveness of the activity would require. Secondly, the data also demonstrate that the observed - typically self-centred - practice of organisational management and task performance should be taken into account for improvements. Thirdly, it appears to be obvious that there is still a considerable distance in the hierarchy between senior managers and employee staff. At the same time, it seems somewhat surprising that respondents consider such a situation as rather adequate, acceptable and natural.

Further on, we tried to measure the significance of factors under scrutiny on the operation of the organisation and the effectiveness of its activities. That is, we wanted to find out which were the preferred values of the functional areas and professional categories concerned, and of civil service as a whole; on the basis of organisational culture and management practices, what was considered critically important or insignificant by respondents. Out of the fourteen choices offered to respondents, by combining the options of "absolutely insignificant" and "rather insignificant", in state administration, municipalities and law enforcement the first three places were given to good luck, creative ideas and pro-activeness, while in civil service as a whole good luck, creative ideas and career were put in this category (see Figure1). Upon assessment of these results, it seems to be absolutely favourable that good luck is considered a negligible factor from the point of view of the operation of the organisation or career building. However, it deserves more contem- plation whether creativity, pro-activeness or career should continue to be so lowly posi- tioned among factors driving the performance of tasks in civil service. The diagram shows that law enforcement respondents strongly challenged and doubted the need for and importance of creative ideas in both day-to-day work performance and management (57 %). In order to reverse the role of career, most real changes should be launched and completed in HR management (including motivation and incentives), management and legislation.

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40%

35.4 35% 34.2 33.5 32.7 32.8 30% 26.8 26.4 26.8 25.3 25.3 25% 24.4 21.7 21.1 20.8 20% 16.4 16.4 15%

10%

0% creative ideas pro-activeness good luck career

state administration municipalities law enforcement civil service

Figure 1: The distribution of the least significant factors

If responses of "highly significant" and "critically important" are counted together and the three factors given the highest scores are separated from the rest, it becomes clear that out of the remaining factors, taking into consideration the following average values for civil service scored highly: – assertiveness (36.8 %), – relationships (58.8 %), – performance (60.2 %), – respect for managers (62.4 %), – high quality work performance and mutual trust (64 – 64 %), and, lastly, – relations among colleagues (65.8 %). Assertiveness still does not seem to be a widely acceptable category within this environment, since it scored much worse than expected. Choosing the role of relationships for more than fifty per cent is just as noteworthy as the negative view on assertiveness, albeit in the other direction. Performance orientation was much more highly valued than previously expected. This can be explained primarily with the younger generations gaining more ground, the predominance of an egalitarian viewpoint, a higher demand for value- based remuneration and incentives, the influence of the competitive sector and the transformation of value sets fed by the experience of employees from abroad, and, last but not least, with policy objectives.

The fact that respect for managers scored highly may also suggest a number of things. It may come as a result of a hierarchically organised structure, distance within the hier-

150 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research archy, respondents fear of freely expressing their opinion, or – hopefully – merely demonstrate acceptance and esteem for managers. Stressing the importance of high-quality work performance, mutual trust among colleagues and their interpersonal relationships constitutes them as valued factors which each provide sound foundations for the improvement of the organisations, the implementation of changes with a hope for success, as well as for reforms to be introduced in the area of HR management. Regarding the issue of trust, it should be highlighted that according to the findings of recent research, only organisations where the principle of trust is asserted in each area can be competitive and effective. From the point of view of the operation of the organisation, out of the factors considered the most important, and therefore given the highest scores, two belong to the characteristic features of bureaucratic organisations (see Figure 2).

100% 87.8 90% 78.2 84.3 78.6 80% 70.6 70.1 73.1 68.3 68.3 69.2 67.5 67.9 70% 67.6 62.4 62.7 58.9 60% 50% 40% 30% 20% 10% 0% following fulfi lment presence respect instructions of objectives for managers

state administration municipalities law enforcement civil service

Figure 2: The distribution of the most significant factors

Thus, the importance of following instructions and presence at the workplace were considered natural, and consequently were accepted by a significant ratio of respondents, just like the key role of the definition and fulfilment of work and performance objectives. Strategic and operative objectives and performance expectations should be equally present in the area of operation of both civil service and the private sector. In both sectors this factor is the prerequisite for improvement, progress in terms of quality and quantity, reasonable and therefore rational work performance, reliability and remuneration provided as expected for well-done work. The fact that it was considered so important by the respondents could give hope to the decision-makers concerned that there are partners

151 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research and allies present for a cultural shift that is due in so many areas. Emphasising presence at the workplace to such an extent may well mean that conditions in many areas of civil service do not really exist for atypical or flexible employment, teleworking or part-time work, or that the type of jobs do not allow for such employment patterns. Another explanation could be that employees, including the majority of managers, consider presence at the workplace indispensable for keeping their job, as well as for advancement or obtaining other advantages. (Detailed data resulting from this question are shown in Table 1 of the Appendix.)

Each of the managers at the helm of civil service organisations perform their duties (planning, organisation, management, decision-making, supervision, delegation, time management, etc.) driven by attitudes they consider good, which they have tried out and/or learnt, or which were perhaps forced on them. The attitude influencing a manager determines their day-to-day activities, relations and co-operation with their peers, partners and employees, and whatever they do. Naturally, very much depends on the managerial attitude chosen, for better or worse, including the extent to which the person concerned may consider themselves to be successful and satisfied, or unsuccessful, as the case may be. Even if only the highlighted criteria were considered, it would be worth taking into account which managerial attitude is typical of managers in civil service, and what solutions they follow and see as fit and effective. Regarding this topic, it is easy to understand that we wanted to find out from respondents which of the choices offered for response they consider as typical for senior managers, middle managers and senior managers and middle managers working in HR management. Respondents view senior managers – taking as the baseline the average of civil service – primarily as performance-focussed (49.8 %), giving instructions (48.8 %) and quality-oriented (46.5 %). Demonstrated values are not really high, but senior managers who consider co-operation very important (30.5 %) and who delegate tasks (27.6 %) form a much smaller group. The least numerous are risk-avoiders (23.7 %) and those who explain things, provide information, i.e. behave like presenters (14.3 %). Senior managers working for state administration were given scores typical of the whole of civil service, or nearly the same. In the municipality sector, senior managers were ranked according to the following attitudes: those who give instructions (51.2 %), performance-focussed (46.3 %) quality-oriented (36.6 %), co-operating (34.1 %), delegating and risk-avoiding (24.4 - 24.4 %), and presenters (9.8 %). In law enforcement, the predominant managerial attitude is also giving instructions, but with an even higher score (73.8 %) than in other areas under scrutiny. Performance focus (65.7 %) and quality orientation (46.3 %) placed next, respectively. Senior managers adopting a delegating attitude (35.8 %) scored relatively high, but risk-avoidance (28.4 %), co-operation (18.7 %) and presenting (8.2 %) seem to be much less characteristic in these organisations.

Middle managers are viewed somewhat differently than senior managers. In this category – taking into account civil service average values – the managerial attitude of co-operation came first (55.9 %), followed by performance-focussed (46.3 %) and quality-oriented (46.1 %) problem solution. The managerial attitude of presenters was put next, (32.6 %), followed by risk-avoiders (26.5 %), delegators (23.3 %) and, finally, by those who give in-

152 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research structions (16.6 %). The results obtained for state administration were almost identical to those in the whole of civil service in this case as well. At the municipalities, the managerial attitude of co-operation (58.5 %) was also marked by most of the respondents. After this, the rank becomes slightly different, because performance focus (46.3 %) is followed by quality orientation and risk avoidance with equal scores (34.1 – 34.1 %). The managerial attitude of presenters (24.4 %), delegators (22 %) and instruction givers (17.1 %) gained the lowest scores. Similarly, in law enforcement the instruction-giving attitude no longer ranked first for middle managers, replaced by willingness to co-operate (56 %). Further down, the rank was: performance-focussed (53.7 %), quality-oriented (50 %), delegator (34.3 %), risk-avoider (30.6 %), instructing (29.1 %) and presenter (28.4 %).

Far fewer responses were received for senior and middle managers working in HR (due in part to their lower numbers) than for senior and middle managers in other areas. Taking into account average civil service values, the picture obtained on the managerial attitudes of senior managers in charge of HR is the following: co-operation (27.7 %), quality orientation (22.8 %), performance focus (21 %), delegation (17 %), presenting (15.9 %), risk avoidance (15.3 %) and, lastly, giving instructions (10.4 %). Ranking registered in state administration is almost identical to the above, with a difference of a few percentage points only. At the municipalities and in law enforcement the values obtained are not as even or close to each other as those above. The managerial attitudes of senior managers in charge of HR at the municipalities were ranked as follows: co-operation (53.7 %), quality orientation (19.5 %), performance focus (14.6 %), presenting (17.1 %), delegating and risk avoidance (9.8 – 9.8 %), followed by giving instructions (4.9 %). Law enforcement presented the following picture: quality orientation (36.6 %), co-operation (34.3 %), delegating (33.6 %), performance focus (32. 8%), risk avoidance (23.9 %), presenting (20.9 %) and giving instructions (18 %).

Taking into account civil service averages, the distribution of managerial attitudes typical of middle managers in charge of HR was viewed as follows. Here, too, co-operation ranked first (33 %), followed by quality orientation (21.1 %), performance focus (19.4 %), presenting (18.6 %), risk avoidance (16.5 %), delegating (12.8 %) and, lastly, giving instructions (5.8 %). As usual, state administration obtained almost identical values. At the municipalities, the managerial attitude of co-operation was put first (51.2 %) in this category of managers as well. Interestingly, this attitude is then followed by the managerial styles of presenting (26.8 %), quality orientation, risk avoidance (19.5 – 19.5 %), performance focus (14.6 %), delegating and giving instructions (4.9 – 4.9 %). Also in law enforcement, the attitude of co-operation was chosen by most respondents (49.6 %), followed by presenting (31.6 %), quality orientation (29.3 %), performance focus (27.8 %), delegating (26.3 %), risk avoidance (22.5 %) and, lastly, giving instructions (6.8 %). (Detailed data are shown in Table 2 of the Appendix.)

The above may lead to the conclusion that the management practices of senior managers outside HR still strongly reflect an attitude of giving instructions, typical of traditional bureaucratic hierarchies. At the same time, we were glad to see that the above statement

153 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research no longer holds true for the managerial attitudes of senior managers in charge of HR. Tak- ing into account the well-known stereotypes, to a lay observer it would seem only natural that in law enforcement the managerial attitude of giving instructions and orders ranked first at all levels of management. However, research findings show a different picture as regards middle managers, the attitude of giving instructions was by far preceded by those of cooperation, delegation, performance focus and quality orientation for example. Conse- quently, we can state that this area is undergoing significant changes as well. The changes indicated have either transformed the operational mechanisms and management practices of the civil service organisations observed, or they are likely to occur, sooner or later. On the other hand, performance focus and quality orientation appear in every area and at all levels of management. This is another circumstance that leads to the conclusion that civil service seems to tend predominantly towards transformation, even if this cannot be identified at present as an entirely conscious, premeditated and planned process. The fact that the managerial attitude of co-operation is gaining more ground, especially among middle managers, may favour change. However, the favourable tendencies observed are somewhat contradicted by the fact that in concert with the above, and almost as a legitimate consequence, the mentality of delegating tasks, the attitude of presenters sharing facts, knowledge and information, as well as that of taking on reasonable risks are adopted by relatively few managers. Of course, there are some favourable signs, for example in law enforcement – with the exception of senior managers – delegation is used by the predominant share of managers in other management categories, or in the municipality sector, where the managerial style of presenters is increasingly observed, mostly among middle managers. In summary, the entire system seems to be in flux, undergoing transformation concerning the issue under scrutiny. The feedback on the evaluation of the managers indicates that even managers themselves tend to realise, in increasing numbers, that their managerial style should be suited to the task at hand, the situation, the circumstances, the employees' competence and their level of commitment, and they can only become successful and accepted by learning to "surf" through various managerial attitudes.438 A lot has to be done in order to broaden the array of management styles and adopt best practice solutions. In conjunction with senior management, the HR area may assist in the solution of this task of strategic importance by joining forces to create conditions for – the competence-based selection of managers; – the operation of a managerial data bank to detect and single out the best and brightest for promotion; – providing on-going systematic training courses for managers and senior management, as well as for – developing an internal coaching network or service to provide support and help resolve day-to-day management issues.

438 The following publications can help achieve this task to a great extent. HERSY, Paul, DR.: A helyzetorientált vezető Vezetés eltérő helyzetekben (The Situational Leader), Műszaki1997.; BLANCHARD, Ken: Vezetés magasabb szinten Eredményesség emberközpontú módszerekkel (Leading at a Higher Level, Revised and Expand- ed Edition: Blanchard On Leadership and Creating High Performing Organizations) HVG Budapest, 2010.; KOTTER, John P.: Tettvágy változásmenedzsment stratégiai vezetőknek (A Sence of Urgency) HVG Budapest, 2009.

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4. Examination of some factors related to the operation of civil service organisations Perhaps it has become clear so far that this research is meant to map areas of relevance from an HR perspective that could contribute to the improvement of its scope of activities, and, by the same token, bring about changes that ought to take place within a particular functional area or organisation and civil service as a whole. This chapter is focused on three topics. Regarding the first one, responses are sought to statements considered to be of key importance in the literature from the perspective of how the operation of an organisation is viewed.439 The second topic is focused on the evaluation of the legal environment which has a critical impact on the life of bureaucratic organisations, whereas the third topic was destined to map respondents' views on the atmosphere at the workplace. It needs to be noted that unfortunately, since our work is funded from grants, the time available did not allow us to supplement the processing with further cross-analyses. It is our intention to make up for that shortcoming later on. Despite the fact that we were unable to present all our findings in distributions based on age, education and gender for example in this partial study, some of that information has been used indirectly, for the formulation of the conclusion and recommendations.

Thus, the next section of the questionnaire contains statements which deserve closer scrutiny for organisations, regardless whether they belong to the private sector or civil service. Regarding the thirteen statements, respondents could take sides either by ac- cepting them as "true" statements, or, to the contrary, by saying that such statements were "false", or uncharacteristic of their particular organisation or functional area. Finally, the choice to respond by "It cannot be judged" was included for the sake of those who had not formed an opinion of their own or did not have sufficient information on the statements offered for evaluation. Perhaps the easiest way to give an over- view of the processing of the data gathered will be the individual assessment of the results (see Figures 3, 4, and 5). Over half of all respondents testified that they did not find the atmosphere at their workplace unpleasant (civil service average 63.7 %, state administration 65 %, municipalities 58.3 %, law enforcement 53.7 %). As to whether management is viewed as competent and interested in employees' opinions, all in all respondents gave favourable answers. However, it is true that results obtained from municipalities and law enforcement stayed below fifty per cent (civil service average 50.6 %, state administration 51.9 %, municipalities 36.6 % and law enforcement 47.8 %). The majority disagreed with the statement about whether the organisation under scrutiny had been in a state of crisis for a long period. They considered that the operation of the organisation was business as usual, without too many problems (civil service average 53.5 %, state administration 53.6 %, municipalities 58.5 %, and law enforcement 45.1 %). In all categories, a significant portion of respondents reported that

439 BAKACSI, Gyula – BALATON, Károly – DOBÁK, Miklós – MÁRIÁS, Antal (ed.:): Vezetés – szervezés I-II. AULA; DR. ANATAL Iván: Szervezés és vezetés Perfekt Budapest, 1999; KLEIN Sándor: Vezetés-és szervezetpszichológia SHL 2001; BAKACSI, Gyula: Szervezeti magatartás és vezetés KJK KERSZÖV Budapest, 2001

155 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research the employees trusted and accepted the managers of their organisation (civil service average 57.1 %, state administration 57.8 %, municipalities 56.1 %, and law enforcement 47.8 %).

performance and personal advancement go hand in hand in the organisation 27.3 34.1 30.6 27.5 individuals cannot see a way out of problems, they are 23.5 46.3 53 25.8 disappointed, cynical and disillusioned the organisation is losing the opportunities it had successfully won, it is lagging behind results and its 11.9 9.8 24.6 13 performance is dwindling the management is engaged in constantly putting out ﬁ res 18 26.8 45.5 20.4 the mission statement and objectives of the organisati- 39.3 31.7 29.1 37.8 on are known and accepted by everybody the best and brightest are gradually quitting, the 19.1 34.1 44 21.6 „brains” of the organisation are ageing

employees are committed to strategy 41.6 26.8 22.4 39.4

there is no trust in management 12.5 19.5 31.3 14 the organisation does not have a strategy, or it exists 14.1 22 36.6 15.9 only on paper and is not given much credit the organisation has been in a state of 13.6 14.6 36.8 15.2 crisis for a long period communication is excellent within the organisation 39.9 17.1 28.4 37.6 management is competent and interested 51.9 36.6 47.8 50.6 in employees’ opinions the atmosphere is unpleasant for the workforce 13.6 26.8 26.1 14.9

state administration municipalities law enforcement civil service

Figure 3: The distribution of statements accepted as true

In harmony with statements analysed so far, respondents could not identify with the hypothesis that their organisation was losing the opportunities it had successfully won, was lagging behind results and its performance kept dwindling. Despite the fact that by taking into account the scores given to other choices, this alternative obtained the highest values, the established ratios – except for one – seem to have slipped below the fifty per cent mean value (civil service average 49.6 %, state administration 50.3 %, municipalities 46.3 %, law enforcement 42.5 %). The last point where the majority of people coming from all professional categories agreed was the assumption that the organisation concerned – contrary to the statement formulated in the questionnaire – did have a strategy and was considered viable, feasible and credible by the employees.

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performance and personal advancement go hand in 29 34.1 38.1 30 hand in the organisation individuals cannot see a way out of problems, they are 42.9 36.6 29.9 42.2 disappointed, cynical and disillusioned the organisation is losing the opportunities it had successfully won, it is lagging behind results and its 50.3 46.3 42.5 49.6 performance is dwindling the management is engaged in constantly 46.1 48.829.9 45 putting out ﬁ res the mission statement and objectives of the organisation 26.8 38.1 18.8 are known and accepted by everybody 16.2

the best and brightest are gradually quitting, the „brains” 45.4 39 35.1 44.1 of the organisation are ageing employees are committed to strategy 12.5 29.3 40.3 15.7

there is no trust in management 57.8 56.1 47.8 57.1 the organisation does not have a strategy, or it exists 44.7 41.5 39.6 44.5 only on paper and is not given much credit

the organisation has been in a state 63.6 58.5 45.1 53.5 of crisis for a long period communication is excellent within the organisation 35 58.5 55.2 37.5 management is competent and interested in employees’ 31.7 34.3 23.4 opinions 22.2 the atmosphere is unpleasant for the workforce 65 58.5 53.7 63.7

state administration municipalities law enforcement civil service Figure 4: The distribution of statements considered false

However, the values given to this assumption scored lower than before (civil service average 44.5 %, state administration 44.7 %, municipalities 41.5 %, and law enforcement 39.6 %). This is an indication that there is no point in dealing with this issue in more detail, since the obtained distributions may not always reflect the actual situation in every respect.

In the answers to the following statements we always encountered cases where one professional category or another, or maybe even people who belonged to multiple categories at the same time, provided a majority of responses with different content or values. The first statement that could be listed under this aforementioned group is the one saying that the management of the organisation concerned is engaged in constantly putting out fires, they are unable to focus on anything but solving pressing issues, and therefore are not adopting a pro-active attitude in many cases. Except for respondents representing law enforcement, those in other categories disagreed with this assumption (civil service average 45 %, state administration 46.1 %, municipalities 48.8 %, and law enforcement 29.9 %). It can be seen, though, that the majority of respondents from law enforcement did consider this statement to be true (45.5 %). The ability to keep their qualified workforce is

157 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research a key issue to all organisations, and one of the prerequisites of holding on to their competitive edge. This is why it may pose a problem if the best and brightest were to gradually quit the organisations, therefore the "brains" of the organisation would be lost or ageing for the most part, or their innovativeness and openness to change would decrease. Once again, a significant portion of respondents did not agree with the above statement, but uncertain- ties could be observed and demonstrated in this case as well. The majority, again from law enforcement, (44 %) indicated that, unfortunately, the migration of the best of the workforce had not stopped. Respondents in other professional categories judged the situation to be slightly more favourable (civil service average 44.1 %, state administration 45.5 %, municipalities 39 %, law enforcement 35.1 %). However, the percentage ratios indicate that apart from law enforcement, this issue also deserves serious attention in the realm of HR and by decision-making managers at the municipalities as well. Respondents reported a situation much like the one illustrated above, when they said that performance and personal advancement were going hand in hand and that there was a link and interaction between them. A substantial portion of respondents employed in civil service (42.5 %), as well as those in state administration (43.7 %) could not, or did not want to decide clearly whether the statement was true or false. One third of municipality respondents considered what was stated in the questionnaire true (34.1 %), another third thought it was false (34.1 %), and yet another third could not, or did not want to take a stance (31.7 %). The situation was more or less the same in law enforcement, since in linking performance with personal advancement the first, majority group did not believe this assumption (38.1 %), those in the second group could not, or did not want to give a substantial answer (31.1 %), while those constituting the third – and smallest – group accepted the statement as true (30.6 %).

In accordance with the key role of strategy and factors related to it, two additional variables were used to examine these points more closely. Notwithstanding the fact that these were positive assumptions, saying that "employees are committed to the strategy", and "the mission statement and objectives of the organisation are known and accepted by everybody", many people were baffled by the content of such statements. A good deal of people employed in civil service and many state administration and municipality workers either could not, or did not want to judge the issue of commitment to their strategy (civil service average 45 %, state administration 45.9 %, municipalities 43.9%, law enforcement 37.7 %). Nearly half of those in law enforcement (40.3 %) did not consider it a true statement, so they thought that employees were not committed to the strategy, either because they were not aware of it or because such a strategy did not even exist. Simi- larly to the above, the majority of respondents could not, or did not want to decide on the awareness and acceptance of the mission statement related to strategic planning, and they took a neutral position (civil service average 43.4 %, state administration 44.5 %, municipalities 41.5 %, and law enforcement 32.8 %). A substantial portion of those evaluating law enforcement did not agree with the statement saying that a mission statement related to strategic objectives of the organisation was known to and accepted by everybody (38.1 %).

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performance and personal advancement go hand in 43.7 31.7 31.1 42.5 hand in the organisation individuals cannot see a way out of problems, they are 17.1 17.2 32 disappointed, cynical and disillusioned 33.7 the organisation is losing the opportunities it had successfully won, it is lagging behind results and its 37.7 43.9 32.8 37.4 performance is dwindling the management is engaged in constantly 24.4 24.6 34.7 putting out ﬁ res 35.9 the mission statement and objectives of the organisati- 44.5 41.5 32.8 43.4 on are known and accepted by everybody the best and brightest are gradually quitting, the 35.5 26.8 20.9 34.4 „brains” of the organisation are ageing employees are committed to strategy 45.9 43.9 37.7 45

there is no trust in management 29.7 24.4 20.9 28.9 the organisation does not have a strategy, or it exists 36.6 23.9 39.7 only on paper and is not given much credit 41.3 the organisation has been in a state of 32.9 26.8 18 31.3 crisis for a long period

communication is excellent within the organisation 25.1 24.4 16.4 25 management is competent and interested in 25.8 31.7 17.9 26 employees’ opinions

the atmosphere is unpleasant for the workforce 21.5 14.6 20.1 21.3

state administration municipalities law enforcement civil service Figure 5: The distribution of those who could not give a substantial answer

The next variable stated that communication was excellent in civil service organisations. A significant portion of those in the combined average of civil service and those in state administration areas accepted this hypothesis and considered it true (civil service average 37.6 %, state administration 39.9 %). Contrary to the above, municipalities and law enforcement employees considered that communication in their area was bad and needed correction (municipalities 58.5 %, law enforcement 55.2 %). The values registered at the two areas expressing a positive view on the quality of communication deserve some reflection, however, because they stand at a relatively low level. This statement sought information on whether civil service employees could see a way out of problems, whether they were disappointed, cynical, disillusioned or, to the contrary, confident, optimistic or even committed. Nearly half of those representing the civil service average or state administration professed to be optimistic, confident and committed, and, accordingly, they could see a way out of problems (civil service average 42.2 %, state administration 42.9 %). At municipalities and in law enforcement areas approximately fifty per cent of respondents could not see a way out of problems, and therefore considered the workforce cynical, disappointed and disillusioned (municipalities 46.3 %, law enforce-

159 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research ment 53 %). It is noteworthy in this case as well, how close the values demonstrating acceptance or rejection stand to each other, so the balance can be easily tilted one way or the other.

Regarding the issue at hand, areas for improvement were visible at various points. Un- certainties expressed on the existence or absence of strategic planning in civil service, employee commitment to approved plans, awareness and acceptance of the mission statement and objectives, or feedback on the absence of such activities demonstrate that urgent action and practical steps are needed regarding this issue. It is crucial for our research whether or not HR management can build upon functional strategies representing organisational or other sectoral activities. Without organisational strategy there is not much point in an HR strategy for the organisation, either. Consequently, this does not pave the way for the development of an effective personnel or HR policy, HR planning, staff management, career planning and performance management, or incentives and wage policies, either. The most important role of HR management is to provide a suitable workforce for the organisations and keep them within the system, which is perhaps even more important. Ensuring employee satisfaction and commitment while strengthening motivation entails a number of tasks for both managers and employees in the functional area concerned. Further research should clarify the contradiction detected around this issue. It is hard to find an acceptable explanation to the conundrum: once respondents said that the civil service environment and the atmosphere at the workplace were pleas- ant for them, then what made them disillusioned and uncertain as to their future, and burdened by negative opinions? The importance of suitably operated organisational communication and information flow was not disputed in any workplace. Regarding views on the communication situation, it shall be noted that even areas having expressed a positive evaluation on communication and information flow may still have greater or lesser problems in that field. This is due to the fact that for both groups these values hardly exceed the ratios for neutral or negative values expressed.

In order to clarify the next factor related to organisational operation we asked respondents who participated in the survey whether they performed their daily work under flexible or rather close control. A good deal of responses adjusted to the five choices offered in all professional categories reported that activities were always, or often performed under close control, which is typical of the operation of bureaucratic organisations. Responses have demonstrated that ongoing control is the most typical for municipalities, while it can be considered quite strong in law enforcement, too.

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45% 40.3 40% 35% 34.1 30.7 30.9 30% 26.1 26.8 25.1 25.5 25% 23.3 24 23.9

20% 17.1 15 15% 14.4 12.2 10% 9.7 9.8 5.8 5.3 5% 0% always under often under close sometimes one often ﬂ exibly always ﬂ exibly close control control way, sometimes another state administration municipalities law enforcement civil service Figure 6: The distribution of the various forms of the control function in civil service

Control exercised over the most frequent and most typical scope of activities dominates in law enforcement, state administration, and also in civil service as a whole.

The adoption of state-of-the-art management practices is demonstrated by the fact that flexible, supportive control seeking to identify the source of problems, rather than those who can be blamed for them is increasingly gaining ground. Work performance within such a flexible framework could be greatly assisted if the management practices of delegating or empowering became predominant. The loosening of the traditional closed system of organisational operation and its shift towards a more up-to-date direction can be demonstrated by the fact that a large number of respondents reported that intermediate situations were becoming more frequent (see Figure 6). Hopefully, this is not due to the superficial work performance of the managers concerned.

People employed in civil service have often been accused – with or without grounds – of lacking the right attitude in performing their tasks, of being insufficiently committed and motivated, and therefore not being effective, efficient and performance-focussed. We asked questions on this topic in spite of suspicions that responses – due in part to personal involvement – were likely to be more favourable than what could be considered realistic. On the other hand, we also assumed that information gathered in this way might dispel some old myths and routines, and provide a pattern for the guiding trend. The resulting

161 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research picture can be considered realistic, rather than non-realistic. In motivation surveys conducted on similar topics the leading positions on the motivation scale are usually taken by the attraction, interest and challenging nature of work, preceding the measured effect of financial remuneration for the work done. In this case the result is more complex and harder to interpret, as demonstrated by Figure 7. Work satisfaction, fulfilment of the need for self-assertion, feeling proud for work performed properly and effectively and its overall motivating effect were within the focus of this survey as well. This proves that government officials, civil servants and law enforcement professionals are motivated by similar factors as employees elsewhere. However, the results clearly demonstrate that respondents from law enforcement and municipalities made work performance a function of financial incentives. This can be partly explained by several years of low pay increases – which affects civil service as a whole – and by the fact that in these two areas a much larger portion of the workforce is employed by local or regional units where salaries and benefits are statutorily lower than in central units of state administration or law enforcement, or in autonomous civil service organisations.

7.3 people like to work here, because they can 2.2 assert themselves 9.8 7.3 8.8 people like to work here, because they know 4.5 they are the most important assets in the organisation and are treated accordingly 4.9 9.4 46.4 people like to work here, because the objec- 32.8 tives are clear and they can be proud of their results 26.8 48.6 34.1 people perform only as a function of ﬁ nancial 56.7 incentives 53.7 31.8 3.1 people are lazy, they only do what they are 3.7 forced to do 4.9 3 0 102030405060

civil service law enforcement municipalities state administration

Figure 7: Evaluation on the work attitudes of the workforce

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The data presented show that laziness and negligence in work can also be found in this field, but they are not at all considered typical or general. Many respondents have indicated that where: – well-defined strategic and operative objectives exist; – attention is devoted to their consistent implementation; – job descriptions, as well as related performance requirements are clear and easy to understand; – employee performance is valued fairly and coupled with a suitable set of incentives; then both managers and employees take pride primarily in the task ahead, the expected performance and results achieved, which will in turn make them motivated and satisfied.

The legal environment where they must fulfil their mission and perform their daily tasks is of utmost importance to any organisation anywhere in the world, so much depends on the help or hindrance it provides for the attainment of their goals. This is particularly true of civil service as a whole. For our research it is of primary interest to find out whether or not the existing legal environment gives adequate guidance for the workforce to understand the issues related to their employment and to use and assert their rights. According to our preliminary assumption, observance of laws is made difficult by permanent changes in legislation and regulations, as well as by the huge number of various provisions, fac- ing the workforce with a situation that is hard to understand.

50% 45% 43.3

40% 36.6 34.3 35% 33.6 29 30% 27.8 27.2 27.7 25% 24.4 24.4 18.7 20% 17.9 15.7 15% 9.8 10% 6.2 4.7 4.5 4.6 4.9 5% 2.4 2.4 0.1 0% yes, absolutely yes, but only in no, not at all new founda- I cannot decide other part tions would be necessary state administration law enforcement municipalities civil service

Figure 8: Distribution of opinions on the existing legal environment

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Our assumption was only partially proven by the results of the survey (see Figure 8). Nearly one third of the respondents reported that they were fully able to find their way in the legal environment (civil service average 27.2 %, state administration 27.8 %, municipalities 24.4 %, and law enforcement 27.2 %). However, it can already be seen from the distribution of answers to this variable that – compared to other areas – law enforcement shows a lower ratio of total acceptance. Figures tell the story even better if results report- ing only partial acceptance are considered. These figures make it obvious that more or less constant changes and amendments in legislation, as well as the introduction of new elements make orientation and understanding cumbersome for many of the respondents, thus they can only partly accept the current situation (civil service average 34.3 %, state administration 33.6 %, municipalities 36.6 %, and law enforcement 43.3 %). Such values are higher for each professional category than those registered for full acceptance, but in municipalities and especially law enforcement, the rate of increase is striking. Thus, the current legal environment is not fully rejected by the majority of respondents, since the ratio of those who consider legislation in force inadequate to operate the system remains under five per cent in each category. At the same time, if the answers of respondents urging partial changes, expressing total rejection, wanting to build on new foundations, not responding to the question, or insisting on other solutions are counted together, it would result in nearly or over fifty per cent versus the fully satisfied. This is an issue worthy of reflection for HR experts, lawyers and decision-makers alike. Towards the end of this train of thought it is important to note that orientation for those in law enforcement is made more difficult by the well-known fact that legal provisions defining their professional status are not taught to law enforcement students in secondary or higher education, and they can hardly get enough information or knowledge on this matter. This issue was settled in civil service a long time ago.

Notwithstanding that one of the earlier questions already dealt with atmosphere at the workplace, we considered it important to ask respondents how they viewed this factor in their own organisation, which is quite important from several aspects. The majority of respondents considered the atmosphere at the workplace rather good and full of trust, and a minority of them even thought it was excellent,440 an atmosphere enabling the workforce to trust each other, as well as their managers (see Figure 9). All in all, this – perhapss slightly over-optimistic – status evaluation also provides the information that 2 to 3 % of respondents reported a permanently bad atmosphere lacking trust, and 9.1 % to 15.7 % said that the situation was typically unfavourable in most cases. Moreover, there were quite a few respondents who considered the atmosphere at their workplace to be neutral and un- interesting. From the point of view of the operation, improvement and transformation of organisational culture this is perhaps the most difficult category or variable to change and turn towards a positive direction, and it was marked by 18.4 % to 43.9 % of respondents.

440 The important role of the atmosphere at the workplace is also underlined by the following study. NEMES, Ferenc – SZLÁVICZ, Ágnes: A vezetés szerepe a dolgozói elégedettség alakulásában Vezetéstudomány 2011. 9. szám

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60%

52.3 51.5 51.5 50% 43.9 40%

31.7 30% 24.6

20% 18.4 20 18.1 15.7 17 12.2 9.8 10% 9.1 9.3 5.2 2.1 2.4 3 2.2 0% almost always mostly bad, neutral and unin- mostly good, excellent, employe- bad, very much lacking trust terested full of trust es trust each other lacking trust and their managers

state administration municipalities law enforcement civil service Figure 9: The distribution of opinions on the atmosphere at the workplace

The distribution and ratio of reactions lead to the conclusion that the area most in need of improvement is that of the municipalities, where much has to be done to change and transform the current situation. Naturally, in spite of favourable data, other civil service sectors also need attention, since it is visible that for example in law enforcement almost forty-five per cent of all respondents characterised the atmosphere at their workplace as always bad, or occasionally unacceptable and neutral.

5. The evaluation of the management and organisational structure of civil service organisations

From the perspective of HR processes to be operated by HR management, and from the perspective of the performance of the related HR functions, it is critically important to find out how civil service employees view the operation of the given organisation, and, in close conjunction with that, the prevailing factors that they consider of key importance for defining the framework and potentials of management activities. In order to get a complete picture, we also asked those interested in our research whether they considered the existing situation as adequate, or possibly in need of change. Questions were asked on a total of nine variables, and respondents were encouraged to mark the response they found the most sympathetic between the two opposite poles out of the potential choices offered for response in the survey.

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The question asking about the operational characteristics of civil service drew responses of varying degrees, but similarly positive or negative from all functional areas, with the exception of one particular factor. Responses which received the majority of scores show far higher values in many cases than those which were rejected. Going through the distribution of responses obtained for each factor, the following can be established. Regarding the organisations within each functional area under scrutiny – apart from one area – respondents claimed that the tasks were managed and solved in a rather centralised way, "keeping tabs" on them, therefore they considered the scope and extent of decentralisation low. The exception was the municipality sector, because there – albeit with a very slight difference – the majority of respondents considered decentralised operation more typical. It is noteworthy that all over the world, even really well-functioning civil service organisations tend to put an increasing emphasis on the allocation or delegation of tasks and decisions, along with the related powers, scopes of competence and, particularly, responsibilities, and this is significantly manifested in the form of task delegation. Organ- isations of operational excellence have taken it a step further, using empowerment as the main driver of work performance. Such a solution goes beyond mere delegation, since in this context a manager will entirely transfer the issues to be resolved and their resolution to the executor, while the managers themselves are engaged in process management and process support. The distribution of percentage ratios obtained lead to the conclusion that – except for law enforcement – the tip of the balance might slowly shift from a centralised to a decentralised organisational operation in all other functional areas of civil service.

28.8

47.5 51.2 44.9

52.5 48.8 55.1

state administration municipalities law enforcement civil service low high

Figure 10: Evaluation of the extent of decentralised operation in the organisations

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The data line of the diagram shows that municipality respondents consider the shift to decentralisation to have already taken place, while to respondents from law enforcement centralised operation appears to be gaining force compared to data measured earlier. In 2002, the value indicated by respondents coming from its management at that time was 68.2 %, in 2012 it was 68.69 %441, and by now the indicator has climbed to 80 %. (In this case the causes will not be analysed.)

The disclosure of the next variable was meant to establish how respondents to the questionnaire viewed their organisation: did they consider it “highly” structured, very hier- archic, or, regarding management levels, rather flat or "low"? On the basis of the results obtained, the distribution of responses might be considered almost uniform, since respondents from each area reported of a high pyramid, i.e. a strongly structured organisational hierarchy (civil service average 66.1 %, state administration 63.9 %, municipalities 63.4 %, and law enforcement 80.6 %). The values obtained for this variable tend to be higher than those for the one previously examined. This may lead to the conclusion that, although legal provisions introduced a few years ago prompted the reduction of management levels, respondents still view the "flattened pyramid" of organisational management as a highly structured and hierarchical mechanism. Taking into account overall experience, it appears that in spite of all endeavours hitherto displayed, parallel structures still remain within particular functional areas, organisations and units, as well as in the field of their interaction. In addition to redundancies, there might be deficiencies in communication, information flow and in the vertical and horizontal co-operation between organisations or units. This finding is also confirmed by the distribution of responses to an assumption in a similar topic disclosed earlier.

Regarding the third variable – similar to those related to the previous two topics under scrutiny – responses were sought to establish whether organisational communication and its practice are viewed as a basically “closed system”, hiding and self-centred, or as rather “open” and externally oriented. The majority considered that closed communication practice was stronger and prevailing (see Figure 11). Data obtained in law enforcement – including data registered earlier – indicated a considerably closed communication practice (66.8 % in 2002, 67.56 % in 2012, and 71.6 % in 2013).442 The trend seems to continue and closed communication practice appears to be gaining more ground in this environment. Here it should be noted that the entire topic requires a highly differentiated treatment – the same as other topics hitherto described or to be dealt with later on – since a fundamentally bureaucratic organisational structure and operation possess their own particular internal rules which should not, and cannot be handled uniformly across all civil service organisations, or changed and transformed overnight.

441 SzAKÁCS, Gábor – Horváth, József: Kutatási jelentés „A vezetők tevékenységének vizsgálata a magyar rendőrségnél” (2001/2002. év) és a „Vezetői tapasztalataim” (2012. év) című felmérések eredményeinek össze- hasonlító vizsgálata BM Oktatási, Képzési és Tudományszervezési Főigazgatóság Nagykovácsi, 2012. 98 – 100. In law enforcement, a longitudinal survey was conducted in 2002 and in 2012, asking police managers to respond, and some elements of that survey will be disclosed for the sake of comparison. 442 SZAKÁCS – HORVÁTH: i. m. 98 -100.

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34.1 28.4 43.1 46.1

65.9 71.6 53.9 56.9

state administration municipalities law enforcement civil service closed open

Figure 11: The evaluation of organisational communication What follows was meant to find out how respondents to the questionnaire viewed the level and extent of differentiation of tasks within the organisation, whether they classified it as "low" or "high". In close conjunction with the picture obtained on organisational structure, the greater part of respondents considered that tasks were rather fragmented across various areas and they were potentially changed quite often (civil service average 64.9 %, state administration 63.3 %, municipalities 58.5 %, law enforcement 74.4 %). HR management might help resolve this issue if it provides substantial assistance for the development of a system based on job descriptions and for the definition of work processes, if it removes the anomalies from job descriptions and job specifications, if it provides a solution for the planning of job descriptions and if it develops and keeps using the competence charts that will serve as a basis for organisational competence management.

In order to broach the topic from multiple angles, information was also gathered on how civil service employees viewed the level of participation in decision-making within the organisation, i.e. whether they considered it "high" or "low". In simple terms: how much say do those performing professional tasks get into deciding what and how they will do them, and can they make substantial and autonomous decisions on their own activities at all. Over fifty per cent of the respondents considered they had very little influence on decision-making (civil service average 60.5 %, state administration 59.7 %, municipalities 61 %, and law enforcement 67.9 %). They are usually told how and what to do, and by when, leaving them little scope for autonomy and creativity. Evidently, civil service as a highly regulated field of activities will allow much less room to manoeuvre and potential for those in charge of particular organisations to give more freedom to those performing their daily tasks. But everything can be changed, including the above! It would be a wel- come and useful change to make better use of the pro-activeness of the workforce, as well as of their willingness to participate and take responsibility, and build on such assets in a differentiated fashion.

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The following two variables were introduced to measure the - "high" or "low" - level of competence that senior management or middle managers have in the performance of their tasks (see Figure 13). Respondents to the questionnaire considered that middle managers had low competence, and, accordingly, their competence covered only a small area, not affecting or influencing many issues of substance, therefore entailing only mod- erate risks and responsibility. In contrast to the above, the scope of competence of senior management was considered to be of a high level, thus encompassing a wide range of activities and a number of fields, with great responsibility and considerable risks attached, along with sometimes sectorial, but more typically organisation-level influence and powers. The fact that the level of organisational hierarchy was felt to be high, communication was considered as closed and the extent of decentralisation was indicated as low, as well as many other issues not included in the survey, might be explained first of all, by the distance index in the hierarchy between senior management and middle managers on the one hand, and between all managers and employees, on the other.

The nature of strategic planning (long and medium term) and operative planning (short term) is closely related to the above, considering both civil service as a whole and its particular organisations. Namely, the question is, whether such activities are highly centralised and driven from the headquarters, or performed in a rather decentralised form, by delegation.

100% 90.2 90% 83.2 83 78.4 80% 75.6 76.9 70% 59.9 62 60% 50% 40% 40.1 38.1 30% 24.4 21.6 23.1 20% 16.8 17 10% 9.8 0% lowhigh low high

senior managers middle managers

state administration municipalities law enforcement civil service

Figure 12: Evaluation of the respective competence levels of senior and middle managers

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Data obtained clearly demonstrate that centralised practices prevail in planning, which might be linked to a particular power base, to senior management or to a group of experts (civil service average 72 %, state administration 70.9 %, municipalities 63.4 % and law enforcement 82.8 %). A refreshing change is encountered only in project-type work which is becoming increasingly frequent. Such solutions will pose problems only in a case where each of the particular steps and actions of planning are taken without a thorough, multi- faceted status report and status evaluation, the activation of the common knowledge base, an impact assessment, a risk analysis, a consideration of alternatives, the involvement of a broad range of stakeholders into both planning and joint corrective actions of the shortcomings of implementation, and, finally, without taking joint stock of the results and setting directions for further measures.

From the perspective of civil service task performance, as mentioned earlier, legislation and regulation at all levels play a very important part, whether such a regulatory environment is focussed on the procedure defining work performance or, rather, on the results expected. Perhaps it is not a mere coincidence that a significant portion of respondents felt that procedure-focussed regulation was implemented. Without going any deeper into the analysis of this depiction, it is important to stress that there is not much point in procedure-focussed regulation without consideration of the results expected.

19.5 37.2 41 37.5

80.5 62.7 59 62.5

state administration municipalities law enforcement civil service the procedure the result

Figure 13: The subject of regulation in civil service The second question within this topic – where the same nine variables were used as before – was asked in order to gather information on whether the status of organisational operation reflected in the results was considered "adequate", or if there was a desire to modify one factor or another, because they were considered "ripe for change". The distribution of majority responses to the previous question essentially determined the outcome of decisions resulting from this question. In areas where results were striking compared to a particular variable of the previous question, there might be a real chance for a desire

170 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research to change the established practice. This may be reckoned for in law enforcement and the area of municipal administration. Such previous assumptions were generally confirmed by the results obtained.

Let us start the evaluation by taking the two variables where none of the civil service areas wished to introduce substantial changes into the established practice, since they considered it good and acceptable. This included the result on the scope of competence of senior management versus middle managers, according to which respondents considered the existing practice of senior managers having great powers, and middle managers low, as good and to be followed. (The distribution of scores where great powers were considered suitable for senior manages was the following: civil service average 70.3 %, state administration 71.3 %, municipalities 65.9 %, and law enforcement 57.5 %. Regarding middle managers, the distribution of scores where low powers were considered suitable for them was the following: civil service average 62.6 %, state administration 63.7 %, municipalities 56.1 %, and law enforcement 54.5 %.) As for the remaining variables, those representing the whole of civil service and state administration argued to keep the existing situation in each case, because - quite probably - they considered it suitable.

The degree of decentralisation of the organisations, typically viewed as low, was considered adequate by respondents representing the civil service average (55.7 %), state administration (57.4 %) and municipalities (51.2 %). Respondents representing law enforcement would definitely change this with a shift towards increasing organisational decentralisation. Only a thorough screening of the functional areas concerned would allow us to establish objectively what it really means when the situation is accepted, versus being objected to, and which substantial characteristics could help illustrate potential variances. This should be kept in mind regarding any variances or counter-opinions demonstrated. The number of levels in organisational hierarchy and the way it is structured were considered good and worth keeping by respondents representing the civil service average (58.8 %) and state administration (60.1 %), while those representing law enforcement (51.5 %) and municipalities (56.1 %) qualified the existing situation as ripe for change. The extent of differentiation of tasks within the organisation, considered high, was again accepted by respondents representing state administration (60.8 %) and the civil service average (58.4 %) as a solution to follow. Nevertheless, the other two areas would radically change it (law enforcement 62.4 %, municipalities 51.2 %).

The level of participation in decision-making within the organisation, considered low, was also considered by respondents representing the majority of the workforce in the civil service average (53.1 %), state administration (54.1 %) and municipal administration (51.2 %) as a managerial principle worth keeping. Law enforcement is again "out of pace", since the majority of its representatives (59 %) would like to enable more people to make autonomous decisions in a broader scope. The high degree of centralisation in planning would not be changed by the same two areas as seen before (respondents representing the civil service average 51.8 % and state administration 54.4 %), but law enforcement (71.6 %) and the municipal sector (51.2 %) would call for transformation. The last two variables were

171 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research judged in much the same way as in the previous case. While respondents representing the civil service average (57.2 %) and state administration (59.6 %) seem to consider procedure to be the subject matter of regulation within the organisation, those representing law enforcement (66.4 %) and municipalities (53.7 %) would prefer it to be results, rather than procedure. Organisational communication practices, viewed as “closed", were considered worth keeping in the future again by respondents representing the civil service average and state administration (52.6 % and 54.7 %, respectively). On the other hand, respondents representing law enforcement and municipalities would want communication in the organisation to be more open, direct and flexible (59.7 %, and 73.2 %, respectively). Detailed results are shown in Table 3 of the Appendix.

From the results obtained it can be established that the more significant half of majority scores given to particular variables fall within the 50 to 60 % value range. That, in turn, means that respondents – regardless whether they voted for keeping or, to the contrary, changing the factor concerned – developed a result which may easily be tilted to the opposite side when prompted by even a small impact. Opinions where majority scores fall above 60 % seem to be well-founded. These are demonstrated by the following two figures.

The variables considered suitable

72 70 68 66 64

62 the scope of competence of senior 60 managers the scope of competence of middle managers 58 the extent of diff erentiation of tasks within the organisation 56 the number of levels in the organisational hierarchy 54

state administration civil service municipalities

Figure 14: Distribution of variables confirmed above 60 %

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The variables ripe for change

74 72 70 68 66 the communication system and practice of the organisation 64 the extent of decentralisation of the organisation the subject of 62 regulation within the organisation the nature of planning within the organisation 60 the extent of diff erentiation of tasks within the organisation 58 the extent of decentralisation of the organisation 56

law enforcement municipalities

Figure 15: Distribution of variables marked above 60 %, considered ripe for change

The data published clearly demonstrate that opinions suggesting a "conservative" bureaucratic organisational structure – as part of the organisational cultures – have an impact on the set of values, standards and myths, as well as on the operation of the organisation and on management practices. At the same time, it can be seen that there is an increasing number of individuals in many areas who are entertaining the idea of change or the need for it, while others consider it absolutely indispensable. Thus, the only question remaining is whether it will be possible to gain the critical mass required for transformations planned in HR management and for the successful implementation of changes, for example, with a clever, thoroughly reasoned and well-communicated strategy and by taking on board the stakeholders.

6. Conclusion and recommendations

This sub-study was prepared in order to find out whether the operational framework, the style and dominant attitude of management and the supportive attitude of the employee staff of the organisations under scrutiny provide the prerequisite for the application of what is now considered the most up-to-date strategic HR management adapted to civil service. The starting point was basically the characteristic features of bureaucratic or-

173 ÁROP-2.2.17 | New civil service career plan | HR management and civil service career plan research ganisations, examined to see if there were any changes compared to conservatively con- ceived operation procedures. If some of the questions were changed or transformed, what detectable and visible changes in emphasis would that entail.

With regard to the above, we were able to establish two things. One is, that in its present state, the culture of the organisations under scrutiny still stands for, or represents the typical bureaucratic characteristics and set of values and standards defined by Weber, both to the outside, towards society, and inside, towards the workforce. On the basis of the research findings, this type of organisational culture appears to be quite strong and imperturbable in terms of certain values and factors, and a "melting pot" for newcomers; however, in other aspects it indubitably reflects a state preceding change. Another conclusion confirmed by the data processed is the fact that civil service, the professional categories under scrutiny and their organisations cannot be considered as a uniform environment, due to the significant variances occasionally encountered in the evaluation or assessment of particular issues. Naturally, it is very difficult or almost impossible to compare such variances, since each of the cases represents a different set of relationships. In that regard, important changes can be identified even between organisations within the same functional area. These differences, passed on by organisational culture, will make it difficult or very difficult in the future to operate and manage organisations merged without precedents, as well as day-to-day existence and work performance in these organisations, let alone endeavours to introduce and gain acceptance for standard criteria and systems that will apply equally to all.

All research as this which can be considered "soft" contains the inherent risk that the respondents – if they are willing to take a stance at all – will want to create a more favourable depiction of themselves and their organisation than what they experience in real life, or in the views they would voice in conversation among themselves. Bearing in mind that the situation is conducive to the distortion of data, we endeavoured to state our opinions or positions with due caution and circumspection at all times. All the more so because we are not aware of any research findings recorded in Hungary on an identical or similar subject, concerned with the same topic and organisational environment, apart from a – previously indicated – survey conducted within the scope of police managers. Thus, there is no database to serve as a starting point and a basis for comparison, which could help us register and identify potential changes and their directions. Nevertheless, we can perhaps confidently state that the whole of civil service and its areas under scrutiny are undergoing transformation. Of course, there are organisations where these changes are demonstrated by the data processed as more urgent and gaining more support – regarding most of the topics discussed – and there are also organisations where the figures reflect uncertainty. Those who feel their situation is insecure, those who are hiding or – due to a number of reasons – have not really been able to decide where they should be heading and where to stand, seem to constitute the largest group. From the distribution of responses under scrutiny it comes across that respondents adopting an unambiguous stance pro or con, thus showing more character, represent the minority in regard to almost every statement. Naturally, these opinions of character can be found in both camps: in the camp of those who want change and also in that of those who are against it.

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Setting up new systems, for example, the introduction of strategy-based integrated HR management system can be regarded as a risky business on many grounds, especially because change in this case might affect the whole of civil service and all of its organisations and workforce. A sense of involvement would have particularly far-reaching effects, since it would change things – partially or entirely – that would lead to significant material and existential consequences. Take only the example of a job description-based system: if introduced, it would entail changes in almost everything within the scope of HR management. Thus, all HR activities would have to be radically transformed, since the old, typically administration-dominated practices would no longer allow for the fulfilment of new expectations and the meeting new requirements. A strategic view in problem solution can be properly managed either by the systematic solution allocated to HR processes and to the related HR functions proposed by us, or by other viable alternatives considered suitable for the purpose. All things considered, the question remains whether or not the organisational environment under scrutiny, including its workforce, will be able to develop a positive and supportive relationship towards the substantial amount and quality of changes implemented or planned. We can only assume that the range of those of a younger generation who have recently joined the civil service in relatively large numbers – if other necessary conditions are met as well – can sufficiently grow within the workforce in support of changes that seem justified. They could be the ones who will perhaps be able to take this raft of changes "across to the other shore", in conjunction with managers who have open views, accept and adopt up-to-date management methods for use in a civil service environment. A critical mass is needed for the successful implementation of changes that can be brought about by convincing those who feel uncertain; it will be a chance for quality transformation.

The substantial transformations, embarked upon in order to change the mechanisms, structures, procedures, regulatory environment, management effectiveness, etc. of organisational operation, as well as the management practices of the managers, the views and thinking of the civil service workforce in various aspects will need to continue and encompass the whole of HR management. Without these it is impossible to create and successfully operate state-of-the-art, strategy-based, value-added and proactive HR management as an integrated system.

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APPENDICES

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Appendix 1 The distribution of factors influencing organisational operation by civil service areas (n = 4485) abso- rather rather very lutely critically insigniﬁ - impor- impor- insigniﬁ - important cant tant tant cant relationships state administration 3.5 5.5 32.9 32.8 25.3 municipalities 4.9 12.2 22.0 26.8 34.1 law enforcement 3.0 7.5 28.4 33.6 27.6 civil service 3.3 5.8 32.1 32.6 26.2 following instructions state administration 1.0 1.0 19.7 42.0 36.2 municipalities - - 12.2 46.3 41.5 law enforcement 0.7 0.7 14.2 41.0 43.3 civil service 1.0 1.2 19.2 41.3 37.3 creative ideas state administration 9.9 15.4 41.5 23.7 9.6 municipalities 7.3 19.5 39.0 26.8 7.3 law enforcement 12.8 22.6 39.1 21.1 4.5 civil service 10.0 16.4 41.0 23.8 8.8 meeting objectives state administration 1.8 2.1 25.6 40.5 30.1 municipalities - 4.9 26.8 43.9 24.4 law enforcement - 2.3 28.6 41.4 27.8 civil service 1.7 2.3 25.9 40.4 29.7 pro-activeness state administration 8.2 12.9 39.8 28.4 10.6 municipalities 7.3 19.5 36.6 29.3 7.3 law enforcement 5.2 20.1 40.3 27.6 6.7 civil service 8.0 13.7 40.0 28.3 10.1

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performance state administration 3.8 5.6 29.4 35.2 26 municipalities 2.4 7.3 31.7 41.5 17.1 law enforcement 1.5 4.5 38.8 38.1 17.2 civil service 3.6 5.7 30.5 35.4 24.8 high quality work state administration 3.0 4.0 27.5 35.3 30.3 municipalities 2.4 2.4 41.5 31.7 22.0 law enforcement 2.2 6 33.6 35.8 22.4 civil service 2.8 4.3 28.7 34.5 29.5 presence state administration 1.8 2.7 28.0 35.3 32.2 municipalities - 4.9 22 26.8 46.3 law enforcement 0.7 2.2 29.1 42.5 25.4 civil service 1.6 2.9 28.0 35.7 31.9 respect for managers state administration 2.3 4.1 31.0 35.9 26.8 municipalities 2.4 - 29.3 29.3 39.0 law enforcement 1.5 3.0 36.6 37.3 21.6 civil service 2.3 3.8 31.6 36.0 26.4 mutual assistance among colleagues state administration 2.1 3.6 27.5 37.1 29.7 municipalities - 12.2 24.4 48.8 14.6 law enforcement 0.7 10.4 27.6 42.5 18.7 civil service 2.1 4.5 27.7 37.7 28.1 mutual trust state administration 2.6 3.5 28.6 38.1 27.1 municipalities 4.9 7.3 34.1 31.7 22.0 law enforcement 0.7 9.7 26.9 42.5 20.1 civil service 2.6 4.4 29.0 37.9 26.1

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self-assertion state administration 7.8 10.9 44.0 27.1 10.3 municipalities 7.3 14.6 43.9 22.0 12.2 law enforcement 2.2 18.7 48.5 23.1 7.5 civil service 7.2 11.3 44.7 26.6 10.2 good luck state administration 14.9 17.8 36.7 18.2 12.3 municipalities 9.8 24.4 34.1 17.1 14.6 law enforcement 11.9 21.6 38.8 19.4 8.2 civil service 14.3 18.5 37.2 18.0 12.0 career state administration 8.1 12.7 44.7 24.2 10.3 municipalities 4.9 19.5 46.3 19.5 9.8 law enforcement 5.2 11.2 47.0 30.6 6.0 civil service 7.5 12.4 45.3 24.6 10.1

Appendix 2 The distribution of typical managerial attitudes by civil service areas (n = 4485)

senior middle HR senior HR middle managers managers managers managers overall overall overall overall giving instructions state administration 45.7 14.5 9.3 5.2 municipalities 51.2 17.1 4.9 4.9 law enforcement 73.8 29.1 18.0 6.8 civil service 48.8 16.6 10.4 5.8 presenter state administration 15.7 33.5 14.7 16.9 municipalities 9.8 24.4 17.1 26.8 law enforcement 8.2 28.4 20.9 31.6 civil service 14.3 32.6 15.9 18.6

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co-operational state administration 32.1 56.0 26.0 30.5 municipalities 34.1 58.5 53.7 51.2 law enforcement 18.7 56.0 34.3 49.6 civil service 30.5 55.9 27.7 33.0 delegating state administration 25.9 21.8 15.2 11.7 municipalities 24.4 22.0 9.8 4.9 law enforcement 35.8 34.3 33.6 26.3 civil service 27.6 23.3 17.0 12.8 performance-focused state administration 47.6 45.0 19.3 18.3 municipalities 46.3 46.3 14.6 14.6 law enforcement 65.7 53.7 32.8 27.8 civil service 49.5 46.3 21.0 19.4 quality-oriented state administration 46.2 45.5 21.4 20.2 municipalities 36.6 34.1 19.5 19.5 law enforcement 46.3 50.0 36.6 29.3 civil service 46.5 46.1 22.8 21.1 risk avoider state administration 23.6 25.2 14.3 14.9 municipalities 24.4 34.1 9.8 19.5 law enforcement 28.4 30.6 23.9 22.5 civil service 23.7 26.5 15.3 16.5

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Appendix 3

The distribution of structural and managerial elements influencing the organisation of the operation, by adequacy and change ratios (n = 4485)

degree of decentralisation adequate ripe for of the organisation change state administration 57.4 42.5 municipalities 51.2 48.8 law enforcement 35.1 64.9 civil service 55.7 44.2 number of hierarchy levels within adequate ripe for the organisation change state administration 60.1 39.9 municipalities 43.9 56.1 law enforcement 48.5 51.5 civil service 58.8 41.3 the extent of task diff erentiation adequate ripe for within the organisation change state administration 60.8 39.2 municipalities 48.8 51.2 law enforcement 37.6 62.4 civil service 58.4 41.6 the extent of participation in adequate ripe for decision-making within the organisation change state administration 54.1 45.8 municipalities 51.2 48.8 law enforcement 41.0 59.0 civil service 53.1 46.9 the scope of competence adequate ripe for of middle managers change state administration 63.7 36.3 municipalities 56.1 43.9 law enforcement 54.5 45.5 civil service 62.6 37.4

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the scope of competence adequate ripe for of senior managers change state administration 71.3 28.7 municipalities 65.9 34.1 law enforcement 57.5 42.5 civil service 70.3 29.7 the nature of work within adequate ripe for the organisation change state administration 54.4 45.6 municipalities 48.8 51.2 law enforcement 28.4 71.6 civil service 51.8 48.3 the subject matter of regulation within adequate ripe for the organisation change state administration 59.6 40.5 municipalities 46.3 53.7 law enforcement 33.6 66.4 civil service 57.2 42.8 the communication system and practice adequate ripe for of the organisation change state administration 54.7 45.3 municipalities 26.8 73.2 law enforcement 40.3 59.7 civil service 52.6 47.4

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185 Published by the Hungarian Official Journal Publisher (1085 Budapest, Somogyi Béla u. 6.; www.mhk.hu).

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New civil service career plan ÁROP-2.2.17