Acts of the Constitutional Court
DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
16 April 2014 № D-917/2014
On the conformity of the Law of the Republic of Belarus “On Making Alterations and Addenda to Certain Laws of the Republic of Belarus on the Minimum Wage” to the Constitution of the Republic of Belarus
The Constitutional Court of the Republic of Belarus comprising the Presiding Officer - Chairman P.P. Miklashevich, Deputy Chairwoman O.G. Sergeeva, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, V.P. Isotko, N.A. Karpovich, L.G. Kozyreva, V.V. Podgrusha, L.M. Ryabtsev, S.P. Chigrinov
 
on the basis of the Article 116.1 of the Constitution of the Republic of Belarus, Article 22.3.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges
 
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 Certain Laws of the Republic of Belarus on the Minimum Wage”.
 
Having heard the reporting judge T.S. Boiko, 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 Certain Laws of the Republic of Belarus on the Minimum Wage” 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 Certain Laws of the Republic of Belarus on the Minimum Wage” (hereinafter - the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on April 2, 2014, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on April 11, 2014 and submitted for signing to the President of the Republic of Belarus.
 
The Law sets forth a new wording of the Article 59 of the Labour Code of the Republic of Belarus defining the minimum wage, the procedure of fixing and increasing thereof as well as a new version of the Law of the Republic of Belarus of July 17, 2002 “On Fixing and the Procedure of Increasing of the Minimum Wage”.
 
1. While reviewing the constitutionality of the Law the Constitutional Court proceeds from the following.
 
According to the Constitution the Republic of Belarus is a social state based on the rule of law (Article 1.1); the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State; the State shall assume responsibility before the citizen to create the conditions for free and dignified development of his personality (Article 2); safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State; everyone has the right to a decent standard of living, including appropriate food, clothing, housing and a continuous improvement of conditions necessary to attain this (Articles 21.1 and 21.2).
 
In the Article 25.1 of the Universal Declaration of Human Rights it is prescribed that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
 
The Article 7.a of the International Covenant on Economic, Social and Cultural Rights recognises the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular, remuneration which provides all workers, as a minimum, with fair wages and equal remuneration for work of equal value without distinction of any kind; a decent living for themselves and their families in accordance with the provisions of the present Covenant.
 
The Article 1 of the Minimum Wage-Fixing Machinery Convention (ratified by the Resolution of the Supreme Council of the Republic of Belarus on June, 10 1993) stipulates that each Member of the International Labour Organisation which ratifies this Convention undertakes to create or maintain machinery whereby minimum rates of wages can be fixed for workers employed in certain of the trades or parts of trades (and in particular in home working trades) in which no arrangements exist for the effective regulation of wages by collective agreement or otherwise and wages are exceptionally low.
 
Therefore, it results from the above-mentioned provisions of the Constitution and international legal acts that a state shall be concerned about the wellbeing of its citizens, their social security, including by means of fixing the minimum amount of money that shall be secured to workers as a remuneration for fulfilling labour commitments.
 
1.1 The Article 1 of the Law sets forth a new wording of the Article 59 of the Labour Code, according to which the minimum wage (monthly and hourly) is a state minimum social standard in the sphere of remuneration of labour that an employer is obliged to apply as the lowest limit of remuneration of labour of workers for the work in normal conditions during normal working hours while fulfilling labour commitments flowing from the legislation, local normative legal acts and labour contract; the procedure of fixing and increasing of the minimum wage shall be determined by law.
 
The analogous definition of the minimum wage is enshrined in the Article 1.2 of the Law of the Republic of Belarus “On Fixing and the Procedure of Increasing of the Minimum Wage” drawn in a new version (hereinafter - the Law on the Minimum Wage) (Article 2 of the Law).
 
This legal regulation is based on the principle of the rule of law (Article 7 of the Constitution) and ensuing principle of the legal certainty. One of the elements of this principle is a consistency of normative legal acts regulating similar legal relations.
 
The Constitutional Court considers that the definition of the minimum wage established by the legislator corresponds to its understanding as the state minimum social standard, notably as the minimum level of state social security guarantees aiming at the satisfaction of human primary needs as well as the implementation of human social rights enshrined in the Constitution.
 
In addition the observance of the principle of the legal certainty providing that the law must be precise, clear and unambiguous is strengthened by a provision of the Article 6.1 of the Law on the Minimum Wage, under which the minimum wage (monthly and hourly) is used exclusively in the sphere of labour relations and ensures the social security of workers.
 
1.2. According to the Article 13.5 of the Constitution the state shall regulate economic activities in the interests of the individual and society, and shall ensure the direction and co-ordination of state and private economic activity for social purposes.
 
Taking into consideration these constitutional rules the Constitutional Court assesses the provision of the Law on the Minimum Wage, under which the rate of the monthly minimum wage shall be determined with account taken of the economic capacities of state and local budgets as well as employers, needs of workers in material goods and services, the employment rate and labour productivity, predictable index of increase in consumer prices, level of the nominal accrued average monthly wage in the Republic in whole (Article 4.2). In this regard the Article 6.3 of the Law on the Minimum Wage prescribes that in cases when the amount of the accrued wage of a worker is lower than the amount of the minimum wage (monthly and hourly), established and applied in accordance with this Law, an employer is obliged to make an additional payment to the worker till the amount of the minimum wage (monthly and hourly). While determining additional payments till the amount of the minimum wage (monthly and hourly) the amount of the accrued wage of the worker shall not include payments of the compensatory nature and payments not relating to the fulfilment of labour commitments that flow from the legislation, local normative legal acts and labour contract.
 
According to the opinion of the Constitutional Court this legislative regulation complies with the constitutional provision defining the Republic of Belarus as a social state, conforms to the comprehensive reasonableness of fixing and applying state minimum social standards on the basis of state economic capacities and is directed at safeguarding of human social rights and interests provided for by the Constitution and international legal acts to which the Republic of Belarus is a party.
 
1.3. Under the Article 107 of the Constitution the Government of the Republic of Belarus shall elaborate the basic guidelines of domestic and foreign policy and take measures for their implementation; ensure implementation of a uniform economic, financial, credit and monetary policy, and state policy in the field of science, culture, education, health care, ecology, social security and remuneration for labour; take measures to secure human rights and freedoms.
 
Proceeding from these constitutional rules the Constitutional Court assesses provisions of the Article 4 of the Law on the Minimum Wage, under which the Council of Ministers of the Republic of Belarus with the assistance of national associations of employers and trade unions in elaborating forecasts of the socio-economic development of the Republic of Belarus shall determine the correlation between the amount of the monthly minimum wage and that of the minimum consumer budget assuring the annual approximation of their amounts (Article 4.3); the amount of the monthly minimum wage shall be fixed by the Council of Ministers yearly after the 1st day of June with regard for the Article 4.2 and correlation between the amount of the monthly minimum wage and that of the minimum consumer budget fixed in accordance with the Article 4.3 (Article 4.4).
 
The Constitutional Court considers that the specified legislative approach is directed at the reinforcement of state guarantees in the sphere of remuneration of labour with account taken of the minimum consumer budget and is based on the constitutional powers of the Government.
 
1.4 Under Article 41.3 of the Constitution individuals shall have the right to protection of their economic and social interests, including the right to conclude collective contracts (agreements).
 
The Constitutional Court notes that the legislator pursuant to this constitutional provision stipulates in the Article 4.6 of the Law on the Minimum Wage that another amount of the monthly minimum wage may be fixed by a collective contract (agreement), but not less than the amount of the monthly minimum wage fixed in accordance with this Law.
 
Setting forth of this rule confirms the establishment at the legislative level of additional social guarantees to workers with regard for economic and financial capacities of an employer and complies with the constitutional provision prescribing that a just share of remuneration for the economic results of the labour in accordance with the quantity, quality and social significance of such work shall be guaranteed to employees, but it shall not be less than the level which shall ensure an independent and dignified living for them and their families (Article 42.1 of the Constitution).
 
2. The Law on the Minimum Wage provides for the supremacy of international treaties of the Republic of Belarus in the regulated sphere. For instance, the operation of this Law extends to all workers and employers concluded a labour contract on the territory of the Republic of Belarus, unless otherwise established by legislative acts or international treaties of the Republic of Belarus (Article 2); if an international treaty of the Republic of Belarus establishes rules other than those containing in the Law, the rules of the international treaty shall be applied (Article 3.2).
 
Such an approach of the legislator corresponds to the provisions of the Article 8 of the Constitution whereby the Republic of Belarus shall recognise the supremacy of the generally recognised principles of international law and shall ensure the compliance of laws therewith (Article 8.1); conclusion of treaties that are contrary to the Constitution shall not be permitted (Article 8.3).
 
3. The Constitutional Court also notes that the observance of a constitutional right of everyone to a hearing is of the highest importance in a state governed by the rule of law. It follows from the analysis of the content of the Law on the Minimum Wage that the provisions of this Law aim at the implementation of the indicated right. Under these rules the infringement of the legislation on fixing and the procedure of increasing of the minimum wage entails the responsibility in accordance with legislative acts (Article 8); disputes on the application of the legislation on fixing and the procedure of increasing of the minimum wage shall be settled by the Commission of Labour Disputes and (or) a court (Article 9).
 
The specified legal regulation is based on constitutional principles and rules and complies with the Article 60.1 of the Constitution ensuring that everyone shall be guaranteed protection of his rights and freedoms by a competent, independent and impartial court within the time limits specified by law.
 
It results from the ascertained constitutional legal sense of provisions of the Law that it establishes the legal basis for fixing and the procedure of increasing of the minimum wage and aims at the implementation of principles and rules of the Constitution as well as rules of international legal acts on the minimum wage.
 
The Law is adopted by the House of Representatives of the National Assembly of the Republic of Belarus within the competence in accordance with the 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 the Article 98.1.1 of the Constitution. In adopting the Law the Houses of the National Assembly of the Republic of Belarus were acting with regard for the competence prescribed in Articles 97-100 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 Articles 116.1, 116.7 of the Constitution of the Republic of Belarus, Article 24.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges the Constitutional Court of the Republic of Belarus
 
 
1. To recognise the Law of the Republic of Belarus “On Making Alterations and Addenda to Certain Laws of the Republic of Belarus on the Minimum Wage” conforming to the Constitution of the Republic of Belarus.
2. The present decision shall come into force from 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