9 June 1998 № J-65/98
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 and judges T.S. Boiko, G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, V.I. Shabailov, G.B. Shishko
with the participation of:
representative of the President of the Republic of Belarus who filed the motion on the verification of the constitutionality of the enforceable enactment: V.I. Pavlov - First Deputy Minister of Labour of the Republic of Belarus,
representative of the Supreme Court of the Republic of Belarus which passed the enforceable enactment: I.N. Mints - Judge, secretary of the Plenum of the Supreme Court of the Republic of Belarus
has considered in open Court session the materials of the case "On the conformity of point 38 of Ruling of the Plenum of the Supreme Court of the Republic of Belarus of 17 June 1994 No. 5 "On some issues of application by the courts of the legislation while settling labour disputes" with amendments made thereto by Rulings of the Plenum of the Supreme Court of the Republic of Belarus of 16 December 1994 No. 12 and of 28 June 1996 No. 8 to the Constitution and the laws of the Republic of Belarus".
The Court session was attended by:
I.N. Zhdanovich - Deputy Chairman of the Supreme Economic Court of the Republic of Belarus;
A.V. Ivanovsky - Deputy Procurator-General of the Republic of Belarus;
O.G. Sergeeva - Deputy Minister of Justice of the Republic of Belarus.
The proceedings on the case were brought of 19 May 1998 as a result of a constitutional motion of the President of the Republic of Belarus on the basis of Article 116 of the Constitution of the Republic of Belarus, Articles 5 and 6 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 43 of the Rules of Procedure of the Constitutional Court.
Point 38 of Ruling of the Plenum of the Supreme Court of the Republic of Belarus of 17 June 1994 No. 5 "On some issues of application by the courts of the legislation while settling labour disputes" with amendments made thereto by Rulings of the Plenum of the Supreme Court of the Republic of Belarus of 16 December 1994 No. 12 and of 28 June 1996 No. 8 (Sudovy Vesnik, 1994, No. 3; 1995, No. 1; 1996, No. 3) was subject to examination.
According to the specified point of the Ruling "while settling labour disputes emerging as a result of taking of disciplinary measures against the employees who refused to conclude the labour contract on the full material liability for safety of material values, the courts shall proceed from the conditions of the labour contract. If carrying out of the responsibilities on operating with material values is the main labour function for an employee that is stipulated by employing and according to the effective legislation the contract on the full liability should be concluded with him, refusal of the conclusion of such a contract without reasonable excuse shall be considered as default of the labour responsibilities with all ensuing consequences. In case an employee refuses to conclude a contract on the reasonable excuse and if formerly executed work did not require the conclusion of the contract on the full material liability and there was no possibility to transfer an employee to other work with his consent, the labour contract shall be canceled as applied to point 1 of Article 33 of the Labour Code".
The President of the Republic of Belarus in his motion on the verification of the constitutionality of Article 38 of the Ruling of the Plenum pointed out that the conclusion of the contract on full material liability - is an essential working condition. If the conclusion of the contract on full material liability have not been determined by employing, an employee, according to part 3 of Article 25 of the Labour Code shall be notified on the conclusion of such a contract one month before at the latest. If it is impossible to reserve the former essential working conditions and the worker disagrees to continue the work under new conditions, the labour contract shall be canceled under point 6 of Article 29 of the Labour Code but not under point 1 of Article 33 of the Labour Code, as it was explained in point 38 of the Ruling of the Plenum.
Having heard Mr G.B. Shishko, judge-speaker, representatives of the litigants, examined the materials of the case, analyzed the provisions of the Constitution, the Labour Code and other enforceable enactments, the Constitutional Court has found the following.
Under part 4 of Article 116 of the Constitution the Constitutional Court on the recommendation of the President shall produce rulings on the conformity of the orders of the Supreme Court to the Constitution and other instruments of international law ratified by the Republic of Belarus, laws, decrees and edicts.
According to Article 7 of the Constitution the State and all the bodies and officials thereof shall operate within the confines of the Constitution and the laws enacted in accordance therewith. Legal enactments or specific provisions thereof which are deemed under procedure specified in law to be contrary to the provisions of the Constitution shall have no legal force.
According to Article 137 of the Constitution of the Republic of Belarus the Constitution shall have the supreme legal force. Laws, decrees, ordinances, and other instruments of state bodies shall be promulgated on the basis of, and in accordance with the Constitution.
Under Article 1211 of the Labour Code the written contracts on the full material liability may be concluded by the employer with the employees (at the age of 18), who hold posts or perform the work directly connected with storage, processing, sale (release), carriage or production use of the values assigned them.
Plenum of the Supreme Court has explained in point 38 of its Ruling that while examining of the disputes emerging in connection with taking disciplinary measures against employees who refused to conclude the contract on full material liability for safety of material values, the courts should proceed from the conditions of the labour contract. If carrying out of the responsibilities on operating with material values is the main labour function for an employee, that is stipulated by employing, and according to the effective legislation the contract on full material liability shall be concluded with him, the refusal of the conclusion of such a contract without reasonable excuse shall be considered as default of the labour responsibilities with all ensuing consequences.
In case the employee refuses to conclude the contract on reasonable excuse and if formerly executed work did not require the conclusion of the contract on the full material liability and there was no possibility to transfer an employee with his consent to other work, the labour contract shall be concealed as applied to point 1 of Article 33 of the Labour Code.
The Constitutional Court considers that the explanation of the Plenum of the Supreme Court given in paragraph one of point 38 of the Ruling corresponds to the norms of the Labour Code and the explanation given in paragraph two of the specified point is contrary to the norms of the Labour Code.
According to parts three and four of Article 25 of the Labour Code in connection with the valid productive, organizational or economic reasons it is possible to change the essential working conditions in case of continuation of the work on the same speciality, qualification or post. The employee shall be informed about the change of essential working conditions - systems and rates of payment of the work, privileges, regimen, establishment or cancellation of part time work, combination of professions, change of the wage categories and titles of the posts and other conditions - one month before at the latest. If the former essential working conditions may not be reserved and the employee disagrees to continue the work under new conditions, the labour contract shall be canceled in accordance with point 6 of Article 29 of the Labour Code.
Having analyzed the norms of the labour legislation, the Constitutional Court emphasized that the change of the level of the material liability of an employee in connection with the conclusion with him of the written contract on full material liability is the change of the essential working conditions which may be carried out without the consent of the employee on the valid industrial, organizational or economic reasons. If while employing the conclusion of such a contract have not been stipulated and in case of continuation of the work such a necessity was initiated by the employer, the employee should be informed about this one month before at the latest. In this case the termination of the labour contract is possible under point 6 of Article 29 of the Labour Code if it is impossible to reserve former working conditions and the employee disagrees to continue the work under new conditions.
Motivating its position on the given issue, the Supreme Court in its written answer of 1 June 1998 has noted that "the judicial practice and the scientists proceeded from the fact that for the employees with whom it is necessary to conclude both the labour contract and the labour contract on full material liability, the responsibility on operating material values is not simply essential working condition but the performance of the main labour function". Therefore, in opinion of the Supreme Court, in default of the employee of the conclusion of the contract on full material liability on the reasonable excuse, the labour contract shall be canceled with him under point 1 of Article 33 of the Labour Code.
The Constitutional Court considers that this argument is not based on the norms of the Labour Code.
The labour legislation with the view to protect the rights of the citizens to work establishes the list of the grounds, which entitle the employer to cancel the labour contract on his own initiative, as well as conditions of their application.
The Supreme Court did not exactly explain the norms of the labour legislation in point 38 of the Ruling of the Plenum and practically has determined the law enforcing practice, which is not based on the law.
The Plenum of the Supreme Court has excluded point 38 from the Ruling of the Plenum of the Supreme Court of 17 June 1994 by its Ruling of 8 June 1998 No. 5 "On the implementation by the courts of Ruling No. 5 of the Plenum of the Supreme Court of 17 June 1994 (as amended of 28 June 1996) "On some issues of application by the courts of the legislation while settling labour disputes".
According to part four of Article 11 of the Law "On the Constitutional Court of the Republic of Belarus " the Constitutional Court may also produce a ruling concerning the enactments based on the verified enactments or reproducing its certain provisions, if they have not been mentioned in the motion on the verification of the constitutionality of the enforceable enactment.
The Constitutional Court emphasizes that the exclusion of point 38 from the Ruling of the Plenum as a whole may result in multivalued application in practice of the norms of the labour legislation while deciding the issue on dismissal of the employee in case of the refusal to conclude the written contract on the full material liability without reasonable excuse. The Constitutional Court considers that previously existing practice in this part corresponds to the law and may be reserved.
The Ruling of the Plenum of the Supreme Court of the Republic of Belarus has come into legal force after its adoption. The exclusion of point 38 from the Ruling of the Plenum of the Supreme Court of 17 June 1994 involves the rights and lawful interests of the citizens and consequently in this case the specified norm before its application in practice shall be published or promulgated by some means specified in law according to Article 7 of the Constitution.
On the basis of these facts and Article 116 of the Constitution, Articles 5, 6, 9, 34, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court
RULED:
1. To find point 38 of Ruling of the Plenum of the Supreme Court of the Republic of Belarus of 17 June 1994 No. 5 "On some issues of application by the courts of the legislation while settling labour disputes" in the part of the explanation of the right of the employer to cancel the labour contract with the employee on the ground of point 1 of Article 33 of the Labour Code in case the employee refuses to conclude the contract on the full material liability on the reasonable excuse, if formerly executed work did not require to conclude the contract on the full material liability and there was no possibility to transfer the employee to other work with his consent to be at variance with the Constitution of the Republic of Belarus and the Labour Code.
In connection with exclusion of point 38 from Ruling of the Plenum of the Supreme Court of 17 June 1994 No. 5 to find point 4 "g" of the Ruling of the Plenum of the Supreme Court of 8 June 1998 "On the implementation by the courts of Ruling No. 5 of the Plenum of the Supreme Court of 17 June 1994 (as amended of 28 June 1996) "On some issues of application by the courts of the legislation while settling labour disputes" to be invalid before its publication or promulgation by some means specified in law.
2. To publish the present Judgment in ten days time from the date of its passing in "Narodnaya Gazeta", "Zvayzda" and in those publications where the enforceable enactment under verification has been published, as well as in "Vedamastsi Natsiyanalnaga skhodu Respubliki Belarus".
3. The present Judgment shall come into force from the date of its passing shall be final and subject to no appeal or protest.
Presiding Officer —
Chairman of the
of the