The Constitutional Court of the Republic of Belarus, comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, K.I. Kenik, V.V. Podgrusha, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin, has examined on the basis of Article 40 and part one of Article 116 of the Constitution of the Republic of Belarus complaint of Chairperson of trade-union committee P/A (Production Association) "Belaruskalij" on lawfulness of establishment of minimum compensation at the rate of two-week average earnings for deterioration of legal status of employees who reached pension age and who have the right to full pension, as well as of the employees who have not reached the specified age but who receive pensions.

Chairperson of trade-union committee of P/A "Belaruskalij" has pointed out in the complaint that resolution of the Council of Ministers of the Republic of Belarus of 6 January 2000 No. 19 "On making alterations in certain resolutions of the Government of the Republic of Belarus" amended resolution of the Council of Ministers of the Republic of Belarus of 2 August 1999 No. 1180 "On approval of Model form of contract of employer with employee" which shall stipulate minimum compensation for deterioration of legal status for employees who reached pension age (men - 60 years, women - 55 years) and who have the right to full pension, as well as for the employees who have not reached the specified age but who receive pensions (except for labour disability pensions, survivor's pensions and social pensions) at the rate of two-week average earnings. As for the rest of employees minimum compensation for deterioration of their legal status is fixed at the rate of six or three average monthly earnings depending on the ground of dismissal, and that is, in his opinion, discrimination against pensioners and is not in conformity with Articles 22 and 23 of the Constitution, with Article 14 of the Labour Code of the Republic of Belarus (hereinafter referred to as the LC).

The Constitutional Court, having analyzed the provisions of the Constitution, laws and other enforceable enactments of the Republic of Belarus, found the following.

The contract is a labour agreement which shall be concluded in written form for a specified in it term and which shall contain the peculiarities as compared with general norms of the labour legislation and which shall stipulate concrete minimum compensation for deterioration of legal status of an employee. Decree of the President of the Republic of Belarus of 26 July 1999 No. 29 "On additional measures on improvement of labour relations, strengthening labour and executional discipline" (hereafter - Decree No. 29) has granted for the employers the right to conclude contracts with both all employees by employment practices and with those with whom labour agreement has been concluded for an indefinite term. In fulfilment of point 9 of Decree No. 29 there have been adopted a number of resolutions of the Council of Ministers of the Republic of Belarus which shall regulate the issues of drawing up of labour relations based on the contract. In particular, point 2 of resolution of the Council of Ministers of the Republic of Belarus of 2 August 1999 No. 1180 "On approval of Model form of contract of employer with employee" has specified minimum compensation for deterioration of legal status of an employee in instances of: - pre-term cancellation of a contract because of non-fulfilment or improper fulfilment of its provisions through employer's fault - at the rate of six average monthly wages; - termination of a contract due to the expiry of its term - at the rate of three average monthly wages.

As a result of making addenda to the given point by resolution of the Council of Ministers of the Republic of Belarus of 6 January 2000 No. 19 "On making alterations in certain resolutions of the Government of the Republic of Belarus" in the specified above instances for the employees who reached pension age (men - 60 years, women - 55 years) and who have the right to full pension, as well as of the employees who have not reached the specified age but who receive pensions (except for labour disability pensions, survivor's pensions and social pensions) there have been envisaged minimum compensation for deterioration of legal status of an employee at the rate of two-week average monthly earnings.

The Constitutional Court emphasizes that the similar to the fixed amount of minimum compensation for deterioration of legal status of an employee had been already envisaged in resolution of the Cabinet of Ministers of the Republic of Belarus of 8 December 1995 No. 671 "On conclusion of contracts with employees who have the right to pension" which was found to be invalid by resolution of the Council of Ministers of the Republic of Belarus of 31 December 1999 No. 2082.

Analysis of the enforceable enactments regulating labour relations based on the contract shall signify that designated purpose minimum compensation for deterioration of legal status of employees - firstly, to compensate in minimum the peculiarities deteriorating legal status of employees with whom there have been concluded contracts as compared with general norms of the labour legislation. Those peculiarities are manifested in the fact that the contract being of terminal nature, and within its effect shall give an employee no right to be dismissed of his own accord under Article 40 of the LC, as for the employer, he shall have the right to dismiss an employee on the expiry of the term of a contract. Deterioration of legal status shall be expressed in the fact that the contract with an employee may be subject to pre-term termination also on additional grounds specified therein. Secondly, minimum compensation for deterioration of legal status of an employee shall make it possible to be materially secured for the period until his job placement at another employer, since the right to it shall be realized in the specified instances while dismissing depending on the ground for termination of a contract.

In the opinion of the Constitutional Court differentiated amount of the minimum compensation for deterioration of legal status of the given category of employees is in conformity with its designated purpose, since solution of the issue of job placement of those employees after termination of a contract shall depend, first of all, on their desires to continue labour activities and on the ability to work. Moreover, one shall bear in mind, that the employees have already receive pension or have the right to receive it.

The Constitutional Court notes that minimum compensation for deterioration of legal status of employees shall be established by the lawmaker and shall have obligatory nature and, therefore, its amount may not be cut down by the employer, for example, by reason of the absence of funds.

At the same time, in pursuance of point 10.9 of Provision on the procedure and conditions for conclusion of contracts of employers with employees, approved by resolution of the Council of Ministers of the Republic of Belarus of 25 September 1999 No. 1476 the employer at his own resources may fix more higher amount of minimum compensations for deterioration of legal status of employees who concluded the contract.

On the basis of the abovestated and guided by Articles 40, part one of Article 116 of the Constitution, Articles 11, 36, 40, 40¹ of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court

RULED:

1. To find to be in line with the Constitution, with Article 14 of the Labour Code of the Republic of Belarus and with Decree of the President of the Republic of Belarus of 26 July 1999 No. 29 "On additional measures on improvement of labour relations, strengthening labour and executional discipline" point 2 of resolution of the Council of Ministers of the Republic of Belarus of 2 August 1999 No. 1180 "On approval of Model form of contract of employer with employee" with addenda made by resolution of the Council of Ministers of the Republic of Belarus of 6 January 2000 No. 19, which shall envisage minimum compensation for deterioration of legal status of employees who reached pension age (men - 60 years, women - 55 years) and who have the right to full pension, as well as of the employees who have not reached the specified age but who receive pensions (except for labour disability pensions, survivor's pensions and social pensions) at the rate of two-week average wage. To note that the employer at his own internal funds may fix also more higher rate of minimum compensations in comparison with the rate envisaged by point 2 of the specified resolution of the Council of Ministers of the Republic of Belarus for different categories of employees.

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

3. To publish the present Decision in accordance with effective legislation.

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich