The modern history of Ukraine – is a drama of labor and capital. Their unity, if it is possible, pushes the society ahead, and confrontation – undermines it. Currently in Ukraine a deep crisis between labor and capitalism appeared, it is evidenced by material factors of manufacture and exchange. This crisis, first of all, is characterized by the following three moments: crisis of property, crisis of exploitation and crisis of solidarity. The way out of it seems to be in the decision of the problem of social justice – fundamentals of regulation and normalizing social-labor relations.
The best way out of the social-economic crisis and an economic catastrophe to come is finding a balance between the labor and capital, reinforcing their conjugated bonds. They lie at the heart of success of all reforms and compromise.
Today, when the preparation of the project of the Labor Code of Ukraine to the hearing by the Supreme Rada of Ukraine is being finished, a special importance for the social-economic development of Ukraine has a condition whether it is able to regulate the system of employed labor with reliable social insurance, health protection and employees’ labor at manufacture, guarantees of employment, civilized labor relations, relations of social partnership and collective social-labor relations.
One can state that the project of the Labor Сode of Ukraine, submitted for repeated discussion, demands today not just to be revised, but to be fundamentally changed in all its provisions.
The project of the Labor Сode of Ukraine first of all demands considerable conceptual revision, with the purpose of its concordance with the system of scholarly views, constituting the general conception of the labor law regarding the conditions of the market economy of Ukraine, standards of employee’s rights protection, which are guaranteed by the practice of the judicial application of the acting Code of laws on labor and international treaties our country participate in.
The necessity of the fundamental revision of the Labor Сode of Ukraine is conditioned by the following circumstances.
1. In the project of the Labor Сode of Ukraine there are no clauses determining the goal of the new Labor Сode of Ukraine, that is its objectives.
The modern mechanism of legal labor regulation is based on three interdependent elements: contractual regulation of individual labor relations between an employee and employer, as primary subjects of the labor market; social-partner and also contractual regulation of collective social-labor relations between employees, their representatives and employers and their associations as secondary subjects of the labor market; public state-legal regulation of social-labor relations connected with establishing of obligatory for general application national labor standards, solving labor conflicts, state control and supervision of keeping to labor legislation, establishing procedures and limits of legal responsibility.
Thus, in the project of the Labor Сode of Ukraine legal norms are to be indicated defining with what purpose and for which final result the subjects of the labor market and their representatives, and also the state enter into social-labor relations. Hence, in the project of the Labor Сode of Ukraine there should be legal norms showing that it, taking into account material interests of employees and their representatives, employers and their associations, state, providing efficient functioning of the labor market, just and safe work conditions, protection of labor rights and employee’s health, promotes increase of work production, improving work quality and material and cultural living level of all Ukrainian people. Ultimately, all system of the labor law norms is directed to effectiveness of social production.
With favorable condition of social production everyone will win: employee, employer and state. Moreover, the state, getting more tax payments, will be more disposed to establish different social institutes in favor of less well-to-do groups of population, it will direct more costs for education, science, etc. With favorable condition of social production there will be more insurance payments to the funds of obligatory state insurance. Therefore, every participant of the social-labor relations, appealing to the Labor Сode of Ukraine, must know by heart the purpose he enters social-labor relations with, what the purpose of the social production is, must know that the welfare of the society is reached only through the social production, understanding the measure of “loosening” of the social production.
2. In the project of the Labor Сode of Ukraine the principles directed to regulation of the social-labor relations are to be defined distinctly. The principles are to express the essence of the Labor Сode of Ukraine, its fundamentals. They are to embody in the social-labor relations the idea of the good, justice and liberty, indicated in the Constitution of Ukraine, to reflect a general direction of the legal system of Ukraine. For instance, are the provisions of clause 2 of the project of the Labor Сode of Ukraine as “ensuring full employment of employees and their protection from unemployment”, “ensuring minimal state guarantees in the labor sphere to employees” principles? What is the concrete meaning of these provisions? What is their practical application?
In addition, we have international legal basis for labor regulation, secured in the international legal acts which are, according to the national legislation, a part of the legal system of Ukraine generally, including the Labor law. Particularly, fundamental principles of labor legal regulation are stated in the adopted on June 18, 1998 at the 86th session of the International Labor Confederation Declaration “About fundamental principles and rights in the sphere of labor and mechanisms of their realization”. As fundamental principles of the labor law one can and must use the general social-economic rights of the toilers, indicated in the General Declaration for Human Rights, adopted by the General Assembly of the UNO on December 10, 1948, the International Pact on civil and political rights, adopted by the General Assembly of the UNO on December 16, 1966 and the International Pact on economic, social and cultural rights, adopted by the General Assembly of the UNO on September 18, 1973.
One should pay attention to the fact that these rights belong exactly to the social-economic, not to civil or political rights. As a matter of fact, these are the rights of employees which are to be kept worldwide. Particularly, in the project of the Labor Сode of Ukraine the following fundamental principles are not reflected: the right for justice and safe working conditions, meeting the norms of safety and hygiene; the right for rest and leisure, including the right for reasonable limiting of the working day and a paid periodic vacation. Instead of these principles in clause 2 of the project as a principle there is a meaningless and not obliging phrase “creating appropriate conditions of work and rest”.
In the project of the Labor Сode of Ukraine the following fundamental principles are not reflected either: the right for equal remuneration of labor of equal value without any discrimination; the right for just and satisfactory remuneration ensuring a way of living worthy employee and his family, supplementing if necessary by other costs of social maintenance.
The absence of norms on the objectives of the legal regulation, clear and meaningful principles in the project of the Labor Сode of Ukraine caused primitive formulations of such major notions of the labor law as “labor relationships”, “labor agreement”.
In clause 5 of the project it is stated: “labor relations are relations between an employee and employer, according to which the employer fulfill some job in the interest of the employer independent from the forms of agreement about such a job”. In clause 64 of the project of the Labor Сode of Ukraine it is stated: “labor agreement is an agreement concluded by an employer and employee in order to define the matter of the labor relations which are established or to be established”.
The logic of the legal condition of an employee in the contemporary civilized conditions of Ukraine, wishing to join the European Community, is seen in these definitions very easy by the following scheme: “You’re a serf! You must fulfill the job in my interests and that’s it (clause 5 of the project). And now, serf, let’s agree how you will fulfill the job in my interests (clause 64 of the project)”. So, an employee, concluding a labor agreement, has no his own interests. He is not to have them in the labor legal relationships either. He (employee) according to the plan of the authors of the project is not a subject of social production with his own interests, but he (employee) is an object, a means of realization of employer’s interests.
And where is realization in these main institutes of the labor law of such constitutional provisions as: “Human being, his life and health, honor and dignity, inviolability and safety is acknowledged in Ukraine the highest social value” (clause 3 of the Constitution of Ukraine); “The state ensure rights protection of all subjects of the law of property and management, social orientation of the economy” (clause 13 of the Constitution of Ukraine) and others?
3. The suggested project of the Labor Сode cannot be adopted in the second reading also because it has considerably understated guarantees of employees’ rights on all stages of their labor rights realization. The project of the Labor Сode of Ukraine seems to establish for employees feeling of fear, uncertainty while getting fixed up in a job, during it and at the moment of quitting.
What guarantees of getting job one can talk about if they don’t exist for persons having a need in a special social protection (the minor, pregnant women, women with children, persons with low ability to work). So, clause 49 of the project of the Labor Сode of Ukraine only guarantees reservation of working places according to professions, that is one shouldn’t expect anything more, and clause 51 of the project concedes a possibility for an employer to mock even this “tight” guarantee. That is just to pay off an employee. And what is the ridiculous “ransom price”? Reading: “In case of refusal to conclude a labor agreement with a person directed to a job according to a reserve and quota, the employer is to pay compensation to the employee in the amount of the minimal salary fixed by law”.
That’s the price of the new Labor Сode of Ukraine for employees!
4. Lack of distinct guarantees for employees at all stages of the right for labor realization is connected with the fact that the authors of the project were carried away by the idea of equilibrium of parties’ interests (employees and employers) in labor relations. In their opinion, the equilibrium of interests of the parties of the labor legal relationship is to be the main idea of the Labor Сode of Ukraine, its main purpose.
So, in the project of the Labor Сode of Ukraine there are norms about labor agreement, working time, salary and others where authors try to balance interests of the labor relations parties, that is the norms which can serve both employees and employers. But on the whole these norms don’t make a Labor code. It also can be called a code, but employees don’t need a code like this. The idea of equilibrium of interests of employees and employers is admissible on some conditions with the conclusion of collective agreements, treaties (departmental, regional), General Agreement, where it becomes a compromise.
5. An integral feature of the labor law that radically differs it from civil law and other branches of law, is participation of employees and their representatives in regulating labor relationships. This issue is to paid special attention to in the project of the Labor Сode of Ukraine and include norms about rights of employees’ collectives and trade unions which undertook a responsible task: to represent and protect labor rights and interests of employees.
It is strange that in the project of the Labor Сode of Ukraine there is no chapter about trade unions, though it is in the acting Code of laws on labor (chapter 16). That’s why just for this reason the project of the Labor Сode of Ukraine cannot be adopted in the second reading. Besides, it’s incomprehensible why it was not a reason to decline it by the Supreme Rada in the first reading.
6. A serious revision is to be made also to the system the project of the Labor Сode of Ukraine. At present there is enough normative material to single out in the project the main starting positions of the labor law of Ukraine: purpose and task of the labor legislation, sources (normative-legal acts), subjects, including representation in the labor law, contracts, agreements, ensuring labor rights and obligations (means of protection, types of legal responsibility on the legal law); terms, action of the labor legislation in time and space, and others. The attempt of the authors of the project to base the system of the project of the Labor Сode of Ukraine on the idea of existing individual labor relationships and collective labor relationships is not scholarly grounded and is actually useless in the course of realization of the provisions of the Labor Сode of Ukraine.
7. The project of the Labor Сode of Ukraine requires improving legal technique too, since many notions in it are vague. For, example, it’s difficult to understand what in clause 35 of the project terms “examination of a person while getting job” and “using of technical means during examination” mean; what is the meaning of the term “principal labor function of an employee” used in clause 73 of the project of the Labor Сode of Ukraine and others.
The project of the Labor Сode of Ukraine concerns rights and interests of citizens whose work underlies existing and development of Ukraine and consequently – in fact all population of Ukraine. One should approach to its adoption very attentively, hurrying slowly and being guided first of all by the experience of legal labor regulation in Ukraine, other countries and international norms. Preparation of the new Labor Сode of Ukraine is to be meticulous and prudent, its essence is to be oriented to stable economic and social-labor relations.
Bushchenko P. A.
Vetukhova I. A.
Members of the Ukrainian Association of the labor law specialists,
assistant professors of the labor law chair of the National Law Academy of Ukraine
named after Yaroslav Mudry, candidates of law
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