The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman of the Constitutional Court of the Republic of Belarus P.P. Miklashevich, judges T.S. Boiko, T. V. Voronovich, S.Y. Danilyuk, V.P. Isotko, V.V. Podgrusha, L. M. Ryabtsev, O.G. Sergeeva, S.P. Chigrinov

on the basis of part eighth of Article 22 of the Code of the Republic of Belarus on Judicial System and Status of Judges

in the exercise of the right to forward to the President of the Republic of Belarus, chambers of the National Assembly of the Republic of Belarus, the Council of Ministers of the Republic of Belarus, other state bodies within their competence proposals on the need to make alterations and (or) addenda to the acts of legislation considered in court session a petition which contained the facts of that the employers had included the terms and conditions on age and sex of an employee in their advertisements on vacant work positions (vacancies) that in the petitioner’s opinion was discrimination.

Having analysed the relevant provisions of the Constitution of the Republic of Belarus, the international legal acts ratified by the Republic of Belarus, the Labour Code of the Republic of Belarus (hereinafter – the LC), the Law of the Republic of Belarus “On Employment of the Population of the Republic of Belarus”, other relevant normative legal acts of the Republic of Belarus, the Constitutional Court found the following.

Safeguarding the rights and liberties of the citizens of the Republic of Belarus shall be the supreme goal of the State (part one of Article 21 of the Constitution). The enshrined constitutional provision on granting equal rights to all to conduct economic and other activities, other than those prohibited by law (part two of Article 13) involves non-discrimination of citizens in all the life spheres inclusive of employment.

Citizens of the Republic of Belarus shall be guaranteed the right to work as the worthiest means of an individual's self-assertion, that is, the right to choose of one's profession, type of occupation and work in accordance with one's vocation, capabilities, education and vocational training, and having regard to social needs (part one of Article 41). According to part one of Article 8 of the Constitution the Republic of Belarus shall recognize the supremacy of the universally acknowledged principles of international law and ensure that its laws comply with such principles.

The most important international legal documents in employment are the Universal Declaration of Human Rights as well as the International Covenant on Economic, Social and Cultural Rights. The Universal Declaration of Human Rights declares that everyone has the right to work, to free choice of employment; everyone, without any discrimination, has the right to equal pay for equal work (Article 23). In the International Covenant on Economic, Social and Cultural Rights it has been established that the States Parties to that Covenant recognise inter alia the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts (Article 6).

The content of universally acknowledged human rights in employment has been exposed in the conventions and recommendations of the International Labour Organisation (hereinafter – the ILO). So pursuant to point 1 of Article 1 of the Convention of the ILO No. 111 on discrimination in employment and occupation of June 25, 1958 (hereinafter – the Convention No. 111) the term “discrimination” includes

a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;

b) such other distinction, exclusion or preference, which has the effect of nullifying or impairing the equality of opportunity or treatment in employment and occupation, as may be determined by the Member – state of the ILO after consultation with representative employers’ and workers’ organizations, where such exist, and with other appropriate bodies.

Herewith any distinction, exclusion or preference in respect of a particular job on the inherent requirements thereof shall not be deemed to be discrimination (point 2 of Article 1 of the Convention No. 111).

The terms “employment” and “occupation” include access to vocational training, access to employment and particular occupations as well as terms and conditions of employments (point 3 of Article 1 of the Convention No. 111), which is to say that the prohibition of discrimination shall have the effect on both employees and everyone who wants to get employed.

The legal analysis of the Convention No. 111 being realised by the Constitutional Court speaks for it has not determined all the discriminatory conditions and practice, for it has admitted the existence thereof if specified of this kind appropriately to national practice.

In the Republic of Belarus the guarantees providing the citizens with the right to work as well as the principle of equality in the exercise thereof have been enshrined in labour legislation.

In accordance with part one of Article 14 of the LC discrimination, notably working rights restrictions or preferences on the basis of sex, race, national extraction, language, religious or political opinions, membership or non-membership in trade unions or other public associations, property or employment status, physical or mental disability, which do not hinder the performance of employment duties, shall be prohibited.

The similar requirements regarding discriminatory conditions have been stipulated in paragraph two of part two of Article 10 of the Law “On Employment of the Population of the Republic of Belarus” , which determines state policy and guarantees to promote the population employment.

In pursuance of part three of Article 14 of the LC any distinction, exclusion, preference and restrictions made on the basis of inherent requirements of a particular job as well as those ones resulted from the need of a special state care about the people requiring higher social and legal protection (women, minors, the disabled, those who have suffered from the catastrophe at the Chernobyl Nuclear Power Plant and others) shall not be deemed to be discrimination.

In the opinion of the Constitutional Court all the other conditions invoking distinction, exclusion, preference and restrictions, which neither regard business qualities nor result from employment functions particularities or status, may be deemed to be discrimination. Herewith part one of Article 14 of the LC and paragraph two of part two of Article 10 of the Law “On Employment of the Population of the Republic of Belarus” embody an exhaustive list of conditions related by a legislator to discrimination in employment.

In accordance with the Law “On Employment of the Population of the Republic of Belarus” the state employment service provides support for the citizens searching for suitable jobs. The employers are also supplied thereby with wanted employees (part two of Article 13). When recruiting the employers often use public forms of job offer. They advertise their vacancies in different ways (mass media advertisements, billboards and others). Being interested in experienced qualified employees with job knowledge and practical skills, able to a competent work organisation and task commission, the employers often include in their job offers to an indefinite set of people searching for job the requirements as to sex, age, residence and others. The abovementioned requirements often exclude the opportunity of particular people to enter into an employment agreement.

The requirements as to age, reaching of which allows people to enter into or break labour legal relationship, have been established by the Constitution, the LC and other laws.

By virtue of the legislation generally it has been allowed to conclude an employment agreement from 16 years. With the written consent of one of the parents (adoptive parents, trustees) it has been allowed to enter into an employment agreement from 14 years (Article 21, part one and two of Article 272 of the LC). The right to go into civil service has been granted to the citizens of the Republic of Belarus at the age of 18 (point one of Article 24 of the Law “On Civil Service in the Republic of Belarus”).

The legislation does not contain a general requirement to obligatory break of labour relationship due to an employee’s certain age. There are particular exclusions concerning civil servants whose age of retirement from civil service amount to 65 years (point 1 of Article 41 of the Law of the Republic of Belarus “On Civil Service in the Republic of Belarus”), as to the Constitutional Court members their age of retirement comes up to 70 years (part three of Article 116 of the Constitution).

The age restrictions also may be established by legislation in respect of employment functions particularities.

The legislator therefore corresponds the opportunity to establish and break labour relationship to a definite age of a person if only the age criterion is based either on employment functions particularities or on special status of an employee.

The Constitutional Court deems that when dealing with employment issues a practical establishment by an employer of other than specified in law age restrictions with does not accord to law.

In Article 30 of the Constitution it has been enshrined that citizens of the Republic of Belarus shall have the right to move freely and choose their place of residence within the Republic of Belarus. The present provision of the Constitution corresponds to other ones which guarantee to citizens the exercise of the right to freely choose of one's occupation in accordance with one's vocation, capabilities, education and vocational training, and having regard to social needs. Therefore such condition as place of residence, established to be an obligatory requirement by an employer when recruiting an employee may not serve the basis to decline the conclusion of an employment agreement as it restricts the opportunity to exercise the citizens’ right to work.

The age and residence omission in part one of Article 14 of the LC and paragraph two of part two of Article 10 of the Law “On Employment of the Population of the Republic of Belarus” may practically lead to the fact that the mentioned conditions will not be considered as discrimination especially as Article 21 of the Law “On Employment of the Population of the Republic of Belarus” does not contain the provision prohibiting discriminatory conditions establishment by an employer in his offers of vacant work positions (vacancies).

In accordance of Article 18 of the Treaty on the Creation of the Union State ensuring the equal citizens’ rights in employment inclusive shall come within the terms of joint reference of both the Union State and Member-Sates thereof. The Social Development Concept of the Union State till 2005, approved by the Resolution of the Supreme State Council of the Union State of January 20, 2003 No. 3, the effect of which has been furthered till 2010 determines the joint labour market formation to be one of the main trends and priorities for the development of the social and labour sphere.

Having compared normative securing of discrimination prohibition in employment of our state and the Russian Federation it has become evident that there is a distinction between them due to an incomplete regulation on that issue in the legislation of the Republic of Belarus. The Labour Code of the Russian Federation contains together with discriminatory conditions specified in point 1 of Article 1 of the Convention No. 111 reflected in part one of Article 14 of the LC the age, residence and other conditions (Articles 3, 64). The employment being refused on the basis thereof is not admissible. In the Constitutional Court opinion the mentioned distinction in legal regulation of similar relationship does not ensure the equal rights to employment within the Union State.

The facts of that the employers have included the requirements on age, place of residence and others which may be recognised as discrimination in their advertisements on vacant work positions (vacancies) make backgrounds for the citizens’ constitutional rights and freedoms violation: that is, the right to choose of one's profession, type of occupation and work in accordance with one's vocation, capabilities, education and vocational training, and having regard to social needs (part one of Article 41); women’s rights equal with men in their working opportunity and promotion in labour (part five of Article 32); the right to move freely and choose their place of residence within the Republic of Belarus (Article 30).

In view of the provisions of the Constitution of the Republic of Belarus, principles and norms of international legal acts, a defined constitutional legal meaning of the norms of Article 14 of the LC, Articles 10 and 21 of the Law “On Employment of the Population of the Republic of Belarus”, proceeding from constitutionally specified guarantees for ensuring the right to work as the worthiest means of an individual's self-assertion and the need to complete legal regulation of relationship in employment, the Constitutional Court deems that the omission of such conditions as age and residence in the discriminatory conditions list established by labour legislation as well as an exhaustive nature of that list considerably restrict guarantees of the exercise of the constitutional right to work.

In view of the foregoing, being guided by part one of Article 116 of the Constitution of the Republic of Belarus, Articles 22 and 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges the Constitutional Court

 

 

1. With a view to ensure guarantees of the exercise of the citizens’ constitutional right to work, completeness of legal regulation of relationship in employment to make additions to:

Article 14 of the Labour Code of the Republic of Belarus including age and place of residence in discriminatory conditions, also establishing their open-ended list;

Articles 10 and 21 of the Law of the Republic of Belarus “On Employment of the Population of the Republic of Belarus”, determining the embodied in Article 10 discriminatory conditions list and envisaging in Article 21 the provisions on non-admission of establishing by an employer of discriminatory conditions in job offers.

2. To propose to the Council of Ministers of the Republic of Belarus to make a draft law on introducing due addenda to the Labour Code of the Republic of Belarus, the Law of the Republic of Belarus “On Employment of the Population of the Republic of Belarus” and to submit it in the established procedure to the House of Representatives of the National Assembly of the Republic of Belarus.

3. The present Decision shall come into legal force from the date of its adoption. 

4. To publish the present Decision in accordance with legislation. 

 

Presiding Officer-

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                          

P.P.Miklashevich