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

on the basis of part eight of Article 22 of the Code on Judicial System and Status of Judges

in the exercise of the right to submit to the President of the Republic of Belarus, houses of the National Assembly of the Republic of Belarus, 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 acts of legislation

with participation of representatives from the Ministry of Labour and Social Protection of the Republic of Belarus, Ministry of Finance of the Republic of Belarus, Ministry of Justice of the Republic of Belarus, Prosecutor General’s Office of the Republic of Belarus, Federation of Trade Unions of Belarus

in open court session considered the issue of the right of employees to reimbursement of travel expenses for business trips.

In their applications to the Constitutional Court citizens raise an issue of unlawfulness of regulations under which the travel expenses for business trip are not reimbursed without providing tickets and other documents in their original.

Having analysed provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Labour Code of the Republic of Belarus (hereinafter – the Labour Code), and other acts of legislation, as well as the position of a number of state bodies and other organisations set forth in response to the request of the Constitutional Court, the Constitutional Court of the Republic of Belarus found the following.

The Ministry of Labour and Social Protection pointed out the necessity to present confirmative documents of employee’s travel expenses by reason of the procedure of cash transactions established in the Republic of Belarus. Thus it admits the possibility of travel expenses reimbursement based on the officially certified copy of a document that proves the purchase of ticket and travel made by the employee.

According to the Ministry of Justice of the Republic of Belarus, the reimbursement of employee’s travel expenses for business trip on the basis of original travel documents is not contrary to the Labour Code. In the meantime the reimbursement of such expenses is possible on other grounds set forth in the process of improvement of the legislation and of law enforcement practice.

General Prosecutor's Office of the Republic of Belarus did not found sufficient grounds to change the established procedure of reimbursement of travel expenses, including the possibility of reimbursement of such expenses upon providing of copies of travel documents.

Federation of Trade Unions of Belarus deems that employee’s compensation of travel expenses for business trip only upon providing of travel documents in their original deprives the employer of the possibility to reimburse employee’s travel expenses even if he wants to make payments in absence of such documents. Normative regulation of travel expenses reimbursement upon providing of travel documents in their original without considering any other option limits employee’s right to compensation for such expenses. According to the Federation of Trade Unions of Belarus, it is necessary to establish the mechanism of reimbursement of such expenses also in case of absence of travel documents, which will ensure the right of employee to compensation of travel expenses for business trip in any case.

Civil Procedure Law and Labour Law Department of the Law Faculty of the Belarusian State University in its expert opinion notes that part two of Article 95 of the Labour Code provides for the employee's right to reimbursement for business trip without the requirement of documents in their originals. According to part three of the mentioned Article, the Government of the Republic of Belarus or its authorised body is empowered to establish only the procedure and amount of reimbursement for business trips. The amount and procedure of compensation cannot limit employee's right to compensation for such expenses because employee is entitled to compensation for travel expenses even in absence of travel documents. Conditionality of compensation upon providing of only original travel documents constitutes a limitation of employee’s right to the given compensation.

Employment on a contract basis as a form of exercise of the constitutional right to work (Article 41 of the Constitution) is inseparably linked with unconditional ensuring of a number of employee’s rights stipulated by the Labour Code. The right of employee to compensation of expenses, tied to the fulfillment of labour duties (its particular cases are envisaged in Articles 95, 96, 99, etc. of the Labour Code), is in line with such rights as the right to remuneration, labour and social leave, labour safety and other rights.

3. The Constitutional Court takes into account Article 19 of the Labour Code, under which the basic rights and duties of employees are set forth by parties to the employment contract in accordance with requirements specified by the mentioned Code. The Labour Code establishes the duty of employees to fulfill written and oral orders (instructions) of an employer if they are not contrary to the legislation and local normative legal acts (point 2 of part one of Article 53 of the Code).

Decision to send employee on a business trip is issued in the form of order (instruction) of employer with handing of business trip certificate in the prescribed form. The period of business trip is fixed by markings on the business trip certificate that indicate days of arrival and departure from the place of residence (Article 93 and part one of Article 94 of the Labour Code).

4. With regard to business trips employee's right to compensation of expenses is based on provisions of part two of Article 90 and part two of Article 95 of the Labour Code. These provisions stipulate that employer must give the employee an advance and reimburse travel expenses for business trip, for hotel accommodation, for being outside the place of residence (per diem allowance), as well as other expenses incurred by employee. The Government of the Republic of Belarus or its authorised body establishes procedure and amount of reimbursement for business trips within Belarus, guarantees and compensation for business trips abroad (parts three and five of Article 95 of the Labour Code).

The Constitutional Court takes into account that these legal acts introduce the amount of reimbursement for accommodation outside the place of residence (per diem allowance) as a specific sum of money in national or foreign (with trips abroad) currency. Accommodation is reimbursed according to actual expenses, which is proved by a document. With trips abroad the reimbursement is not higher than relevant limits for rent. In absence of relevant documents the amount of compensation is determined by a specific sum of money.

Employee's right to compensation of travel expenses is also stipulated in the legislation of other countries. Thus, according to Article 168 of the Labour Code of the Russian Federation employer reimburses employee his expenses for business trip, including travel expenses. In particular, for reimbursement of expenses related to business trips within the Russian Federation, employees from organisations, financed from the federal budget, are given the possibility of reimbursement of travel expenses for business trip at the minimum fare in absence of travel documents confirming incurred expenses (Resolution of the Government of the Russian Federation of October 2, 2002 No. 729).

5. The Republic of Belarus is bound by the principle of supremacy of law (Article 7 of the Constitution).

The supremacy of law as the most important feature of the rule-of-law State embodies a number of required elements, which include legality. The principle of legality implies observance of laws both by physical and legal entities and by state bodies, officials and other persons who exercise public functions within the limits of their rights and responsibilities. Formal application of the law that is not in line with the spirit of law and justice should be avoided.

Employee's right to compensation of expenses for business trip, envisaged in the Labour Code, cannot be limited by resolutions of the Ministry of Finance and the Ministry of Labour and Social Protection. However, while applying this legislative rule, the ministries had actually exceeded their powers. Their legal regulation of the procedure and amount of reimbursement eliminates in certain cases the possibility of implementation of employee’s right to compensation of travel expenses. Rules of procedure and amount of compensation of travel expenses stipulated in the acts of mentioned republican bodies of state administration are in conflict with relevant provisions of the Labour Code.

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