DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
the 18 of September, 2014 No D-946/2014
On the Definition of “Unmarried Mother” in Labour Relations
The Constitutional Court of the Republic of Belarus comprising the Presiding OfficerChairman P.P. Miklashevich, Deputy Chairwoman O.G. Sergeeva, judges T.S. Boiko, T.V. Voronovich, V.P. Isotko, N.A. Karpovich, L.G. Kozyreva, V.V. Podgrusha, A.G. Tikovenko, S.P. Chigrinov
in open court session considered the case “On the definition of “unmarried mother” in labour relations”.
The court session was attended by:
V.V. Mitskevich, Deputy Head of the Administration of the President of the Republic of Belarus ‒ the authorised representative of the President of the Republic of Belarus in the Constitutional Court;
L.F. Moroz, Chairwoman of the Standing Committee for Legislation and State Administration of the Council of the Republic ‒ the authorised representative of the Council of the Republic of the National Assembly of the Republic of Belarus in the Constitutional Court;
A.N. Bodak, Deputy Minister of Justice of the Republic of Belarus ‒ the authorised representative of the Council of Ministers of the Republic of Belarus in the Constitutional Court;
the representatives:
of the Supreme Court of the Republic of Belarus ‒ A.A. Zabara, Deputy Chairman of the Supreme Court of the Republic of Belarus;
of the General Prosecutor's Office of the Republic of Belarus ‒ A.K. Stuk, Deputy Prosecutor General of the Republic of Belarus;
of the Ministry of Labour and Social Protection of the Republic of Belarus ‒ I.G. Starovoitov, Deputy Minister of Labour and Social Protection of the Republic of Belarus;
of the Federation of Trade Unions of Belarus ‒ V.I. Shelkovich, Head of the Main Legal Department of the Office of the Federation of Trade Unions of Belarus.
The proceedings were initiated by the Constitutional Court on 10 July 2014 according to Article 116.1 of the Constitution of the Republic of Belarus (hereinafter, the “Constitution”), Article 22.3.8 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Article 158.1 and Article 158.3 of the Law of the Republic of Belarus “On the Constitutional Proceedings” on the basis of the application of Ms. V.M. Gerashchenko on legal uncertainty of the definition of “unmarried mother” in provisions of the Labour Code of the Republic of Belarus (hereinafter, the “LC”) establishing the guarantees for unmarried mothers in case of the conclusion and termination of the labour contract.
In the application Ms. Gerashchenko notes that the court considered the case on non-conclusion of a labour contract with her. In her complaint she referred to the provision of Article 268 of the LC according to which it shall be forbidden to refuse to conclude a labour contract with unmarried mothers having a child under fourteen years (a disabled child ‒ up to eighteen years). The applicant is a divorced woman who is bringing up two minor children (one of them is under fourteen years) without any help from their father in their maintenance. But the casewas dismissed for the reason that, according to the court, the applicant can not be considered as an unmarried mother because the children wereborn in wedlock.
Disagreeing with such law enforcement practice Ms. Gerashchenko believes that she can seek guarantees provided by the LC for unmarried mothers. She grounds her opinion by the possibility of an appropriate interpretation of the definition of “unmarried mother” because the LC does not provide its definition and also by the purpose of these guarantees aimed at support of one-parent families in which the maintenance of children is carried out in fact only by one parent.
Having heard the reporting judge N.A. Karpovich, speeches of the authorised representatives of the President of the Republic of Belarus, the Council of the Republic of the National Assembly of the Republic of Belarus, the Council of Ministers of the Republic of Belarus in the Constitutional Court, representatives of the Supreme Court of the Republic of Belarus, the General Prosecutor's Office of the Republic of Belarus, the Ministry of Labour and Social Protection of the Republic of Belarus, the Federation of Trade Unions of Belarus, having analysed the provisions of the Constitution, the LC and other legislative acts of the Republic of Belarus, having examined the submitted documents and other case materials the Constitutional Court of the Republic of Belarus found the following:
1. According to the Constitution marriage, family, motherhood, fatherhood, and childhood shall be under the protection of the State (Article 32.1). This constitutional provision was developed, in particular, in provisions of the LC on features of conclusion and termination of the labour contract with unmarried mothers.
Article 16.1.6 of the LC establishes that ungrounded refusal to conclude a labour contract with unmarried mothers having a child under fourteen years (a disabled child ‒ up to eighteen years) shall be forbidden.
 According to Article 268.1 and Article 268.2 of the LC it shall be forbidden to refuse to conclude a labour contract and to reduce wages for unmarried mothers having a child under fourteen years (a disabled child ‒ up to eighteen years); in case of refusal to conclude a labour contract with this person the employer shall inform her about reasons in writing; refusal to conclude a labour contract may be appealed before the court. According to Article 268.3 termination of the labour contract with unmarried mothers having children from three to fourteen years (disabled children ‒ up to eighteen years) by the employer shall be not allowed, except in cases of liquidation of the organisation, shutdown of the branch, representative office or another separate unit of the organisation located in another area, cessation of activity of the individual entrepreneur as well as on the grounds specified in Article 42.2, 4, 5, 7-9 and Article 47 of the LC.
The Resolution of the Plenum of the Supreme Court of the Republic of Belarus of 29 March 2001 No. 2 “On Some Issues of Application of Labour Legislation by the Courts” (hereinafter, the “Resolution”) clarified that the definition of “unmarried mothers” who can enjoy the guarantees provided for by Article 268 of the TC should include unmarried women with children in whose birth record information about their father was introduced in accordance with established procedure by the mother, as well as not remarried widows (widowers) bringing up minor children (paragraph 22.4).
Thus, the legislator has established in the TC guarantees in case of conclusion and termination of the labour contract for unmarried mothers that comply with the constitutional provision on the protection of the family, motherhood and childhood. At the same time the issue concerning persons who can be considered as unmarried mothers has not been settled by the LC and is regulated by the Resolution of the Plenum of the Supreme Court.
2. In accordance with Article 39 of the Law “On the Constitutional Proceedings” requests were sent to the Supreme Court, the General Prosecutor's Office, the Ministry of Justice, the Ministry of Labour and Social Protection, the Federation of Trade Unions of Belarus as well as to the Department of Civil Procedure and Labour Law of the Faculty of Law of the Belarusian State University.
In the response of the Supreme Court it is noted that the labour legislation does not contain a definition of “unmarried mother”, but Article 16 and Article 268 of the LC provide for benefits and guarantees for unmarried mothers in labour relations. When settling disputes related to the practice of application of these guarantees courts use the clarification contained in paragraph 22.4 of the Resolution. According to the Supreme Court, this clarification contributes to the identification of persons belonging to the category of workers who enjoy guarantees in labour relations; in the legislation and law enforcement practice the term “unmarried mother” is clearly understood and applied in accordance with its content; there are no grounds for filling it with another content than that provided in the Resolution as well as there is no legal uncertainty on this issue.
The Prosecutor General's Office points out that the labour legislation does not contain a clear definition of “unmarried mother”. The clarification of this definition contained in the Resolution does not fully cover all situations when the mother brings up her child alone. Additional guarantees in case of conclusion and termination of the labour contract can be extended not only to unmarried mothers, but also to other individuals bringing up minor children in one-parent families. In this regard there are sufficient reasons to define the category of individuals who may enjoy additional guarantees in the field of labour relations including those provided for by Chapter 19 of the LC “Features of regulation of the labour of women and workers with family responsibilities” in normative legal acts.
The Ministry of Labour and Social Protection believes that the legislation provides a settled understanding of the meaning of the term “unmarried mother” which is set out in paragraph 22 of the Resolution. The Ministry considers unreasonable to identify the definitions “divorced spouse” and “unmarried mother” as a divorced spouse is entitled to recover money for maintenance of the children from the father while the unmarried mother has no such right. The Ministry does not find grounds for recognition of legal uncertainty and revision of approaches to the definition of the term “unmarried mother” in the LC and in the Resolution of the Plenum of the Supreme Court.
In the response of the Ministry of Justice it is noted that the legislation does not contain the definition of the term “unmarried mother”, except the Resolution. At the same time the legislation has enshrined the one-parent family institution and therefore the relevant terminology is used in a number of legislative acts. The state provides a number of additional social guarantees for one-parent families with minor children. The Ministry of Justice draws attention to the regulation of similar public relations and law enforcement practice in the Russian Federation where the definition of “unmarried mother” covers a wider circle of individuals.
According to the Federation of Trade Unions of Belarus, the clarification about individuals who may be considered as unmarried mothers contained in the Resolution is rather concrete. However, in order to ensure the implementation of the principle of legal certainty the Federation of Trade Unions of Belarus considers that it is fair to enshrine the definition of “unmarried mother” directly in the LC.
The Department of Civil Procedure and Labour Law of the Faculty of Law of the Belarusian State University made a conclusion that the definition of the term “unmarried mother” in the laws which provide guarantees for unmarried mothers is absent. For the purposes of labour legislation, legal uncertainty in legal regulation and law enforcement practice of classification of unmarried mothers, who are entitled to enjoy the guarantees in case of conclusion and termination of the labour contract established by the LC, is eliminated by the Resolution. However, this does not create obstacles to choose another, more meaningful way to overcome law defects ‒ making clarifications to the LC.
Thus, in responses to requests of the Constitutional Court attention was drawn to the absence of  rules defining persons who may be considered as unmarried mothers in the LC and other legislative acts regulating labour relations. In addition, the clarification given in the Resolution contributed to the specification of individuals who may enjoy guarantees in case of conclusion and termination of the labour contract with unmarried mothers and there is a possibility to rate other individuals among unmarried mothers that it is provided in the said Resolution of the Supreme Court. The reasonability of elimination of legal uncertainty in the regulation of guarantees for unmarried mothers by enshrining the definition of “unmarried mother” in the LC was also pointed out.
3. According to the Constitution the Republic of Belarus is a social state based on the rule of law; 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 1.1, Article 2).
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). The constitutional right to work may be implemented by an individual by means of free utilisation of abilities and property for entrepreneurial activity as well as by wage labour (Article 13.4, Article 42.1 of the Constitution).
According to these constitutional rules the labour legislation of the Republic of Belarus enshrines legal guarantees of the implementation of the right of individuals to work by means of employment. At the same time the legal regulation of labour and related relations shall also be based on other principles and rules of the Constitution, including those stating that 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 (Article 21.2); marriage, family, motherhood, fatherhood, and childhood shall be under the protection of the State; parents or persons acting as parents have the right and are obliged to raise their children and to take care of their health, development and education (Article 32.1, Article 32.3).
The constitutional provisions on state protection of the family, motherhood and childhood comply with a number of international legal instruments mandatory for the Republic of Belarus including the International Covenant on Economic, Social and Cultural Rights (1966), according to which the widest possible protection and assistance should be accorded to thefamily, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children (Article 10.1). According to Article 2.1 each State Party to the Covenant undertakes to takesteps, to the maximum of its available resources, with a view toachieving progressively the full realisation of the rights recognised in the presentCovenant by all appropriate means, including particularly the adoption of legislativemeasures.
State protection of the family, motherhood and childhood is manifested, in particular, by the concrete measures taken by the State in order to prevent discrimination against women on the grounds of maternity and to ensure their effective right to work provided for in Article 11.2 of the UN Convention on the Elimination of All Forms of Discrimination against Women (1979). Article 5 of the ILO Convention No. 111 concerning Discrimination in Respect of Employment and Occupation (1958) allows the adoption by Member States of special measures designed to meet the needs of individuals who, for reasons such as family responsibilities, are generally recognised to require special protection or assistance.
The Convention on the Rights of the Child (1989) obliges signatory States to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians or other individuals legally responsible for him or her and, to this end, to take all appropriate legislative and administrative measures (Article 3.2). The Republic of Belarus as a State Party to the Convention in accordance with national conditions and within its means shall take appropriate measures to assist parents and others responsible for the child (Article 27.3).
Thus, from the provisions of the Constitution and international legal instruments it follows that legal regulation of labour relations concerning the family, motherhood and childhood, shall provide for the heightened social and legal protection of these social institutions.
The Constitutional Court takes into account that the special role of the family, motherhood and childhood is enshrined in a number of legislative acts of the Republic of Belarus. Family is recognised as the ground of a stable society (paragraph 11.4 of the Guidelines of the Domestic and Foreign Policy of the Republic of Belarus, approved by the Program Law of the Republic of Belarus of 14 November 2005), a natural and fundamental unit of the society under protection of the State (Article 3.1 of the Code of the Republic of Belarus on Marriage and Family). According to the Code on Marriage and Family the State shall take care of the family, including by creating conditions for economic independence and improvement of the family’s well-being, combination of work and family responsibilities by the parents (Article 3.2).
In the Message of the Constitutional Court “On Constitutional Legality in the Republic of Belarus in 2013” it is noted that the implementation of the constitutional provisions on state support and protection of the family, protection of the rights and legitimate interests of children, ensuring favorable conditions for their development, education and formation by the legislator fully complies with the social character of the Belarusian state enshrined in the Constitution.
Establishment and protection of mutual rights and obligations of employees and employers as parties to the employment contract are defined in the LC as one of the goals of this Code (Article 2.3).
The Constitutional Court notes that enshrining of features of regulation of work of women and workers with family responsibilities, including guarantees and benefits for such individuals, in the LC is aimed at implementation of the constitutional provisions on the social character of the Belarusian State, support and protection of the family, motherhood and childhood as well as fulfillment of international obligations of the Republic of Belarus in the field of labour relations and complies with the rules of other legislative acts of the Republic of Belarus. At the same time the state guarantees provided for unmarried mothers by virtue of Article 268.1 and Article 268.3 of the LC are aimed at implementation of their constitutional right to work in case of need to combine professional (labour) activity with socially important function of maternity as well as at ensuring necessary conditions for protection of the constitutional right of the child to a decent standard of living because unmarried mothers bear parental responsibility for his well-being and full development without possibility to get any help from the father of the child.
4. Article 7.1 of the LC provides that labour relations are regulated by the following sources: the Constitution; this Code and other acts of labour legislation; collective agreements, agreements and other local normative legal acts concluded and adopted in accordance with the legislation; labour contracts.
According to Article 2.11 of the Law “On Normative Legal Acts of the Republic of Belarus” acts of the Supreme Court (resolutions of the Plenum of the Supreme Court) are normative legal acts adopted within its competence in order to regulate social relations established by the Constitution and other legislative acts adopted in accordance with the Constitution. The Code of Judicial System and Status of Judges states that the Plenum of the Supreme Court considers materials of generalisation of judicial practice, judicial statistics and gives according to the procedure of judicial interpretation clarifications to general courts on the application of the legislation; adopts resolutions on issues within its competence (Article 51.1.3, Article 51.2).
The Constitutional Court considers that the Resolution of the Plenum of the Supreme Court of 29 March 2001 No. 2 stating that the definition of “unmarried mothers” who can enjoy the guarantees provided for by Article 268 of the TC should include unmarried women with children in whose birth record information about their father was introduced in accordance with established procedure by the mother, as well as not remarried widows (widowers) bringing up minor children (paragraph 22.4) does not contain clarification on the application of labour legislation, but a new legal rule supplementing legislative regulation of labour relations concerning determination of the circle of individuals entitled to enjoy the guarantees enshrined in Article 268 of the LC.
The absence of provisions defining the circle of individuals considered as unmarried mothers concerning guarantees provided for in Article 268 of the LC creates conditions for ambiguous understanding of its provisions and, consequently, can lead to violation of the constitutional requirements to guarantee the rights and freedoms of citizens of Belarus enshrined in the Constitution, laws and provided by the state's international obligations, as well as to prevent from using benefits and privileges that are contrary to the law (Article 21.3, Article 23.2).
5. According to the Constitution safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State; the State shall guarantee the rights and freedoms of citizens of Belarus that are enshrined in the Constitution and laws, and specified by the State's international obligations; the State shall take all measures at its disposal to establish the domestic and international order necessary for the full exercise of the rights and freedoms of the citizens of the Republic of Belarus that are specified by the Constitution (Article 21.1, Article 21.3, Article 59.1).
The Republic of Belarus shall be bound by the principle of supremacy of law; the State and all the bodies and officials thereof shall operate within the confines of the Constitution and acts of legislation adopted in accordance therewith; state bodies, officials and other persons who have been entrusted to exercise state functions shall, within their competence, take necessary measures to implement and protect personal rights and freedoms (parts one and two of Article 7, second part of Article 59 of the Constitution).
In decisions of the Constitutional Court it has been repeatedly stated that one of the elements of the constitutional principle of the rule of law is the principle of legal certainty which requires clarity, precision, consistency, logical coherence of legal rules, possibility of their uniform application in practice.
The Constitutional Court notes that the clear and precise definition of the circle of individuals who may enjoy the guarantees provided by the LC, i.e. circle of individuals covered by the definition of “unmarried mother”, is very important for implementation of these guarantees. However, the LC and other legislative acts do not contain rules on the circle of individuals who may be recognised as unmarried mothers in order to extend guarantees in case of conclusion and termination of the labour contract to them.
In view of the foregoing the Constitutional Court concluded that the LC contains a legal uncertainty represented in impossibility to define clearly the circle of individuals who may enjoy the guarantees provided for unmarried mothers. The presence of this uncertainty impedes the implementation of these guarantees, and therefore can lead to violations of the constitutional rights and legitimate interests of individuals. In order to ensure the principle of the rule of law, guarantee the protection of the constitutional rights of individuals in labour relations legal uncertainty caused by the absence in the LC of a clear and precise definition of the circle of individuals who may enjoy the guarantees provided for unmarried mothers in case of conclusion and termination of the labour contract shall be excluded by the legislator by making an addition to the LC defining individuals who may be recognised as unmarried mothers.
In view of the foregoing, guided by Article 116.1, Article 22.3.8 and Article 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 74.2, 75, 77, 80, 84, 85.17 and 160 of the Law of the Republic of Belarus “On the Constitutional Proceedings”, the Constitutional Court of the Republic of Belarus
 
RULED:
 
1. In order to ensure the constitutional principle of the rule of law, guarantees of the protection of the constitutional rights of individuals having family obligations in labour relations the Constitutional Court recognised it necessary to eliminate legal uncertainty in the Labour Code of the Republic of Belarus caused by the absence of a clear and precise definition of the circle of individuals having the right to the guarantees prescribed for unmarried mothers in case of the conclusion and termination of the labour contract on the basis of the requirements of the Constitution and taking into account the legal positions of the Constitutional Court of the Republic of Belarus stated in this Decision.
2. To make a proposal to the Council of Ministers of the Republic of Belarus to prepare a draft law on supplementing the Labour Code of the Republic of Belarus with a provision defining a circle of individuals considered among unmarried mothers and submit it to the House of Representatives of the National Assembly of the Republic of Belarus according to the established procedure.
3. The present Decision shall come into force from the date of its adoption.
4. 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

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