Acts of the Constitutional Court
DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
30 December 2013 № D-913/2013
On the conformity of the Law of the Republic of Belarus “On Making Alterations and Addenda to the Labour Code of the Republic of Belarus” to the Constitution of the Republic of Belarus
The Constitutional Court of the Republic of Belarus comprising the Presiding Officer –Chairman P.P. Miklashevich, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, V.P. Isotko, L.G. Kozyreva, A.V. Maryskin, V.V. Podgrusha, L.M. Ryabtsev, A.G. Tikovenko, S.P. Chigrinov
on the basis of Article 116.1 of the Constitution of the Republic of Belarus, subpoint 1.1 of point 1 and point 3 of the Ordinance by the President of the Republic of Belarus of June 26, 2008 No. 14 “On Certain Measures to Improve the Activities of the Constitutional Court of the Republic of Belarus”
in open court session in the exercise of obligatory preliminary review considered the constitutionality of the Law of the Republic of Belarus “On Making Alterations and Addenda to the Labour Code of the Republic of Belarus”.
Having heard the reporting judge V.P. Isotko, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Law of the Republic of Belarus “On Making Alterations and Addenda to the Labour Code of the Republic of Belarus” and other legislative acts of the Republic of Belarus, the Constitutional Court of the Republic of Belarus found the following:
The Law of the Republic of Belarus “On Making Alterations and Addenda to the Labour Code of the Republic of Belarus” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on December 16, 2013, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on December 19, 2013 and submitted for signing by the President of the Republic of Belarus.
The Law aims at improving regulation of labour relations and other relations in this field by the Labour Code of the Republic of Belarus (hereinafter, LC) with regard to provisions of a number of legislative acts, decisions of the Constitutional Court on specific issues of labour legislation, necessity of regulation of labour relations in the field of professional sports.
While reviewing the constitutionality of the Law the Constitutional Court proceeds from the following.
1. 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 profession, type of occupation and work in accordance with his vocation, capabilities, education and professional training, and with regard to social needs, and the right to healthy and safe working conditions (Article 41.1 of the Constitution).
The Law regulates conclusion and termination of a labour contract, guarantees and compensation granted to employees, leave and salary, settlement of collective labour disputes, labour activity of professional athletes and coaches gives additional opportunities for implementation of the constitutional right to work.
2. Article 17.2 of the LC provides that fixed-term employment contract is concluded when labour relations can not be established for an indefinite term due to the nature of forthcoming works or conditions of its performance. However, Article 1.7 of the Law enshrines the provision under which individuals who are employed by an individual entrepreneur or small-scale organisation may conclude a fixed-term employment contract without regard for the nature of works or conditions of its performance. According to the Constitutional Court, this provision extends opportunities of individual entrepreneurs and small-scale organisations when recruiting individuals because these business entities will be outside requirements for conclusion of fixed-term employment contracts. Conclusion of fixed-term employment contracts in this case will contribute to respect of labour, social rights (including pension rights) and legal interests of workers without formal labour relations as well as newly hired individuals.
3. The Law (Article 1.138) establishes additional grounds for termination of a labour contract with an athlete and a coach (Article 31411.1, 3 of the LC). Thus, grounds for termination of a labour contract with an athlete are: his disqualification for a period of six months or more; use of doping; failure to achieve certain sports results under the condition that achievement of these results was specified by the labour contract and the employer has created necessary conditions for the athlete for their achievement. An additional ground for termination of a labour contract with a coach is his disqualification for a period of six months or more as well as failure to achieve certain sports results by an athlete (a team) under the condition that responsibility of the coach for achievement of these results by an athlete (a team) is specified by the labour contract and the employer has created necessary conditions for an athlete (a team) for their achievement.
The Constitutional Court considers that these grounds for termination of a labour contract are admissible because the field of professional sports differs from other fields of labour application: sports achievements are the result of not only of the athlete's abilities and skills but also of efforts of other people putting their abilities and skills for achievement of high results by an athlete, including during international sports competitions.
Article 21.2 of the LC is stated in the new wording (amended by Article 1.9 of the Law). It enshrines the opportunity to conclude a labour contract with an individual under 14 years for doing professional sports under the condition that this activity will not be injurious to health and will not interfere with education. This provision allows athletes who achieve professional skills when they are minors (gymnastics, dance sport, etc.) to be guaranteed the constitutional right to work.
When considering above mentioned provisions of the Law the Constitutional Court confirms the legal position stated in its Decision of December 23, 2011 "On the conformity of the Law of the Republic of Belarus "On Making Alterations and Addenda to the Law of the Republic of Belarus "On Civil Service in the Republic of Belarus" to the Constitution of the Republic of Belarus". The essence of this position is that the constitutional principle of equality of everyone before the law which ensures protection against all forms of discrimination does not impede the legislator to establish distinctions, exclusions, preferences in the legal status of individuals belonging to different categories because of conditions and nature of activities if they are objectively justified, grounded and comply with constitutionally significant goals by special regulation in the field of labour. In accordance with Article 1.2 of ILO Convention No. 111 (1958) concerning discrimination in the field of employment and occupation these distinctions, exclusions or preferences related to a particular occupation are not considered as discrimination.
4. The Law provides for additional grounds for termination of a labour contract at the initiative of the employer: cessation of activity of an affiliated branch, agency or separate division of the organisation situated in another district (Article 1.19) with the obligation to respect the rules of termination of a labour contract (Article 1.20), to offer severance pay, other guarantee payments and compensations (Article 1.23.4, Article 1.36) which are applied in case of liquidation of an organisation. In addition, Article 1 of the Law rates cessation of activity of an affiliated branch, agency or separate division of the organisation situated in another district among cases which do not provide for guarantees to employees elected for elective office in state bodies (Article 1.52); members of labour disputes commission (Article 1.111); pregnant women and women with children (Article 1.117); workers called out for military and special camps (Article 1.145.5).
According to the Constitutional Court this approach of the legislator regulates issues of termination of labour relations, including the right to severance pay, other guarantee payments and compensations, taking into account the specific character of activities of separate divisions of an organisation (in this case – their location in a district other than the location of the parent organisation). This peculiarity provides for the necessity of legal regulation of these issues in the same manner as in case of the liquidation of an organisation because the employer can not offer another job in this district to employees subject to dismissal.
5. According to the Constitution the State shall create conditions necessary for full employment of the population (Article 41.2).
Article 1.133 of the Law specifies the definition of individuals who work at home (outworkers) and aims at expansion of flexible forms of employment. Thus, according to Article 304 of the LC stated as amended the notion of outworkers include not only individuals having concluded a labour contract with the employer for performance of work at home and using material, equipment, tools, machinery and devices allocated by the employer or purchased at the expense of the employer but also individuals performing such work and using their own material, equipment, tools, instruments and devices. At the same time the legislator provides for the possibility for outworkers of performing such work at home or at their option in premises other than the premises of the employer.
These provisions of the Law extend opportunities for employers for organisation of labor at home providing safe conditions for performance of works (services) according to a labour contract, as well as opportunities for recruiting individuals who can not implement the right to labour guaranteed by the Constitution under normal conditions (at the seat of the employer). It also complies with characteristic of the Republic of Belarus as a social state that supports individuals who can not perform works (providing services) at the seat of the employer for objective reasons (illness, disability, etc.).
6. In accordance with Article 255.1 of the LC stated in the new wording prohibition of performing paid works as part-time worker (double employment) is maintained only for heads of state organisations and organisations with the statutory fund in which 50 percent or more of shares are owned by the state (Article 1.114 of the Law). Thus, heads of private organisations, except private organisations with the statutory fund in which at least 50 percent of shares are owned by the state, have the right to part-time work. It enables these managers to fully realise the right to work granted them by the Constitution by using their abilities, knowledge, experience and skills in other positions and at the same time perform their functions on their main job.
The Law (Article 1.148) enshrines in Article 343 of the LC stated in the new wording the right of a worker to conclude labour contracts for combining jobs with more than one employer (unless otherwise is stipulated by legislative acts). In addition, Article 345 of the LC stated (amended by Article 1.150 of the Law) lifts restriction of duration of working hours when combining jobs that was set for workers on leave without pay or with partial pay provided at the initiative of the employer in case of temporary suspension of work or reduction of its volume: these workers when combining jobs can work full-time (shift).
This approach to combining jobs extends opportunities for creation of employment and contributes to a full-time employment. It ensures the right to work guaranteed by the Constitution.
7. According to the Constitution working people shall have the right to rest. For employees, this right shall be ensured by the establishment of a working week of no more than 40 hours, shorter working hours at night and the provision of an annual paid leave and weekly days off (Article 43).
The Constitution enshrines the provisions that the Republic of Belarus is a social state (Article 1.1); marriage, family, motherhood, fatherhood, and childhood shall be under the protection of the State (Article 32.1); all shall be equal before the law and have the right to equal protection of their rights and legitimate interests without any discrimination (Article 22).
Article 43 of the Constitution in correlation with Article 1.1 and Article 32.1 of the Constitution is implemented through the right of workers to social leave stipulated by the LC.
In order to strengthen social protection of workers having the right to social leave the Law modifies appropriate rules of the LC. For example, Article 266 of the LC (amended by Article 1.116 of the Law) which regulates social pregnancy and childbirth leave and also childcare leavefor the child under three years for women who have adopted a child. This Article covers all workers who have adopted children or who have been nominated as their tutors (both women and men). Requirements of Article 22 of the Constitution on equality of everyone before the law in relation to social leaves are implemented thereby ensuring application of the same approach to all individuals who have adopted children or who have been nominated as their tutors and who take appropriate care of these children.
 Article 185 of the LC (amended by Article 1.82 of the Law) enshrines the right to parental leave to care for a child under three years not only for working mothers but also for working fathers, other relatives, family members. The legislator took into consideration the position of the Constitutional Court of the Republic of Belarus concerning the need to respect the constitutional principles of legal equality, proportionality of restriction of rights and freedoms of individuals, norms guaranteeing the right to labour and social security, non-discrimination in the field of labour relations and other relations in connection with them and also ensuring social justice, effective mechanisms to protect the family, motherhood, fatherhood and childhood under the Decision of October 4, 2011 "On Some Issues of Legal Regulation of Parental Leave to Care for a Child".
Thus, this Article of the LC provides that parental leave to care for a child under three years can be granted to a relative, member of the family of the child who de facto cares for him in case the child's mother is occupied (work, service, studies) or exercises independent activities provided in the legislation (i.e. in cases when the mother is an individual entrepreneur, notary, lawyer, artist, artisan or works in the field of agroecotourism).
8. The procedure of settlement of collective labour disputes which eliminates settlement of a collective labour dispute in the Republican Labour Arbitration and its functions in appointment of a neutral member of the Conciliation Commission, registration of collective labour disputes is stipulated by the LC (Article 1.159–162). At the same time it establishes the procedure and conditions of labour arbitration activity, status of labour arbitrators as well as qualifying requirements to them.
Provisions according to which collective labour disputes are considered by a conciliation commission with participation of a mediator and also by a temporary body – labour arbitration which previously didn’t have time limits are established by Article 379.4,5 of the LC(amended by Article 1.159 of the Law). The phase of consideration of disputes by a conciliation commission is obligatory: the term for recourse to labour arbitration in case of failure to reach an agreed decision by a conciliation commission (with participation of a mediator) is not established (five days according to Article 383 of the LC in the current wording).
Labour arbitration is set up from among labour arbitrators by agreement between the employer (employers' association) and workers represented by their representative bodies (Article 383.1,5 of the LC (amended by Article 1.161 of the Law)). Rights and obligations of labour arbitrators when considering collective labour disputes, in particular, to be objective, to respect confidentiality (Article 384.5 of the LC) are determined by Article 1.161 of the Law.
Improving settlement of collective labour disputes by extending opportunities of workers and employers when choosing means for settlement of a dispute in order to ensure their rights and legitimate interests aims at simplifying the procedure of dispute settlement (without registration of a collective labour dispute in the Republican Labor Arbitration).
This contributes to realise the constitutional right of individuals to protection of their economic and social interests, including the right to conclude collective contracts (agreements) (Article 41.3 of the Constitution).
9. Requirements for a labour arbitrator are established by Article 384.2 of the LC (amended by Article 1.161 of the Law): an individual having, as a rule, high legal or economic education and experience according his profession not less than five years can be appointed as a labour arbitrator. The Constitutional Court considers that maintenance of requirements for qualification of labour arbitrators by the legislator and also their strengthening concerning increasing of duration of professional experience from three to five years for performing functions of a labour arbitrator complies with the aims of their establishment because individuals with special qualification, experience, which will enable them to negotiate skillfully with the parties to the dispute and will contribute to make a mutually acceptable solution should be labour arbitrators.
However, there is a number of circumstances under which individuals can not be labour arbitrators. In particular, individuals whose powers as a judge of a court, prosecutor, officer of the Investigative Committee, agent of internal affairs bodies, State Security bodies, Border Service bodies, officer of the State Control Committee of the Republic of Belarus, tax and customs bodies, other government employee, notary, lawyer, mediator were terminated according to the procedure established by legislative acts on grounds relating to commission of offenses that are incompatible with his professional activities, – within three years from the date of the appropriate decision unless otherwise is stipulated by legislative acts (Article 384.4 of the LC).
These restrictions comply with the constitutional principle of equality which is one of the elements of the principle of the rule of law. The Constitutional Court in the above mentioned Decision of December 23, 2011 noted that the constitutional principle of equality which guarantees protection from all forms of discrimination does not impede the implementation of special legal regulation of labour relations to establish in the legislation distinctions, exclusions, preferences in the legal status of individuals belonging to different categories because of conditions and their occupation, if they are objectively justified, grounded and comply with constitutionally significant goals.
10. Article 1.77 of the Law excludes from Article 168 of the LC the provision on obligation of the employer to submit the leave schedule for approval to the labour union or to the worker (in case of absence of the labour union). In accordance with this alteration the employer has to submit the leave schedule for approval to the labour union only in cases stipulated by the collective agreement. This approach does not restrict the worker's right to rest guaranteed by Article 43 of the Constitution by granting paid annual leave, because it does not deprive him of the right to leave. However, when making the leave schedule the employer takes into consideration the opinion of the worker about his period for leave, unless it interferes with normal activities of the organisation, as well as the right to leave of other workers.
The Constitutional Court notes that in this case there is a reasonable balance between the interests of workers and employers because workers are hired in order to ensure the functioning of the organisation. At the same time each worker has the right to rest, that’s why the employer has to respect guarantees established by the LC, including for certain categories of workers, to grant leaves in summer or at another convenient time.
11. One of the elements of the constitutional principle of the rule of law (Article 7 of the Constitution) is legal certainty. As it is noted in a number of decisions of the Constitutional Court, legal certainty presupposes clarity, accuracy, consistency, logical coherence of rules, possibility of their uniform application in practice. Obligatory combining of normative legal acts into a united system which is characterised by internal consistency is stipulated by the Law of the Republic of Belarus "On Normative Legal Acts of the Republic of Belarus".
Practical implementation of mentioned requirements also means the necessity for opportune coordination of legislative acts with the acts adopted later, and also for clarifying a rule taking into account legal positions contained in other Decisions of the Constitutional Court.
Provisions of the LC are harmonized by the Law with certain provisions of the Tax Code of the Republic of Belarus, the Code of the Republic of Belarus on Education, the Law "On Trade Unions", Decrees by the President of the Republic of Belarus "On Improvement of the Control (Supervision) Activity in the Republic of Belarus" (October 16, 2009 No. 510); "On Administrative Procedures carried out by Public Bodies and Other Organisations on the Applications of Citizens" (April 26, 2010 No. 200); "On Realization of Public Control by Trade Unions" (May 6, 2010 No. 240); "On Certain Issues of Regulation of Labour Relations" (April 5, 2012 No. 156) and "On Certain Issues of Settlement of Collective Labour Disputes" (July 23, 2013 No. 320).
The collision revealed by the Constitutional Court (Decision of December 16, 2009 "On the Necessity to Resolve Collisions between the Norms of the Legislative Acts, Envisaging Additional Ground for the Termination of a Labour Contract under the Article 47.5 of the Labour Code") between the LC and the Law of the Republic of Belarus "On Combating Corruption" regarding an additional ground for termination of the labour contract with officials in cases of non-signing or violation of the written commitment to respect restrictions set by the legislation on combating corruption is eliminated by Article 47.5 of the LC (amended by Article 1.22.3 of the Law). The principle of legal certainty is implemented thereby and also uniform understanding and application of legislation is ensured.
Article 1.18,23 of the Law aims at achievement of legal certainty and clarity of legal regulation, ensuring uniformity of law enforcement practice. These provisions are to be applied when determining amount of severance pay to workers who are granted minimum compensation for termination of fixed-term labour contract by legislative acts. This complies with the proposals of the Constitutional Court stated in its Decision of March 5, 2009 "On Legal Regulation of Severance Pay".
Harmonization of the Law with international legal acts, in particular of such acts of the International Labour Organisation as the Recommendation No. 92 "On Voluntary Conciliation and Arbitration", the Convention No. 156 "On Equal Treatment and Equal Opportunities for Men and Women: Workers with Family Responsibilities", the Convention No. 177 "On the Home Work", also contributes to legal certainty.
The Law is adopted by the House of Representatives of the National Assembly of the Republic of Belarus within competence in accordance with Article 97.1.2 of the Constitution, approved by the Council of the Republic of the National Assembly of the Republic of Belarus in accordance with Article 98.1.1 of the Constitution. 
In view of the foregoing the Constitutional Court concludes that the Law is in conformity with the Constitution as to the content of its rules, form of the act and procedure of its adoption.
Guided by Article 116.1,7 of the Constitution of the Republic of Belarus, Article 24.8,13,14 of the Code of the Republic of Belarus on Judicial System and Status of Judges, subpoint 1.1 of point 1 and point 3 of the Ordinance by the President of the Republic of Belarus of June 26, 2008 No. 14 “On Certain Measures to Improve the Activities of the Constitutional Court of the Republic of Belarus”, the Constitutional Court of the Republic of Belarus
 
RULED:
1. To recognise the Law of the Republic of Belarus “On Making Alterations and Addenda to the Labour Code of the Republic of Belarus” to be conforming to the Constitution of the Republic of Belarus.
2. The present Decision shall come into force since the date of its adoption.
3. To publish the present Decision in accordance with the legislation.
 
Presiding Officer –
Petr P. Miklashevich,

Chairman of the Constitutional Court
of the Republic of Belarus