Pendulum of the Labour code

What labor legislation is necessary for Ukraine today. An essence of each document, even such volume as the project of the Labour code (nine books, 444 articles), always  is possible to formulate in several words or offers. For example, some critics of this project speak absolutely short: slavery! There is such emotional and publicistic characteristic. As any emotion, it contains some exaggeration, but also to assert that the project estimation as «the legalized slavery» is full of lie, unfortunately, is impossible too.

In my opinion, an essence of the project of the Labour code if to speak without emotions, consists in such position : it legalizes those unfair advantages of employers which really , instead of on a letter of the hand-written law, have developed in Ukraine in labor relations for the last 15 – 20 years. These advantages, at first, have developed contrary to the operating Code of laws on work, and, secondly, contradict the constitutional norms about Ukraine as the socially-focused state (country ).

Is it necessary to prove presence of the mentioned advantages separately? Billions of not paid salaries, millions of labor migrants, mass unemployment, scanty salaries of overwhelming majority of Ukrainians, pensions on which it’s  impossible to live, "envelopes", deficiency of the Pension fund (official in 2010 - 26,595 billion grivnas ) – what proofs are still necessary, that the hired worker in Ukraine is feeling himself  badly ?

If to esteem and to listen to discussions round this project, especially its defenders from the Federation of trade unions of Ukraine (she takes the most active part in work on the Labour code, and the chairman of the Federation of trade unions of Ukraine Vasily Hara is the coauthor of the bill-project )  picture appears in such way : the organizations of employers have offered the project arranging only their interests , and the Federation of trade unions of Ukraine persistently struggles for elimination from the document as much as possible norms breaking legitimate rights of hired workers. Something they managed to be won (in Federation of trade unions of Ukraine someone says  that from the project have withdrawn more than 200 norms which are worsening the rights and the guarantee of workers), and something  isn't present. Thus there is a compromise search, and, certainly, in something it was necessary to concede. In Federation of trade unions of Ukraine calm: after code acceptance, it will be possible to make changes, and the vice-president of Federation of trade unions of Ukraine Grigory Osovoj refers to the Constitution of Ukraine: «Even if someone supposes that in the project of the Labour code the norm worsening the rights and narrowing sphere of powers of workers it will contradict the Constitution of Ukraine contains, and such norm has no chances of existence». (I’ll notice that nonpayment of salaries any Ukrainian law, including the Constitution doesn't allow, however this nonpayment prospers. And operating, still "Soviet", Code of laws on work hasn't prevented present rough and system infringement of the rights of hired workers at all ). And they still say to us in a consolation that the given project of the labor legislation is the best among all Post-Soviet countries.

I don't accept such argument as «it’s better, than in Kazakhstan». It’s strange to me to hear that during project working out experience of Post-Soviet or any other countries was studied, they had listened to councils of experts of the International organization of work, the international associations of trade unions and the organizations of the employers, etc. It is good and  really necessary, but the question: “have this developers considered Ukrainian experience?” –  still remained without the answer.

We had to start with simple true: labor conflicts always were and always will be. And any Labour code even if we suddenly would manage to accept its variant exemplary for the whole world, would’t deny this true. Therefore the at the first time question-requirement to the code project should be: will it help the lawful decision of inevitable labor conflicts, or not? In other words, in what entry conditions puts the code parties of the conflict – in equal or not equal? Concerning the offered project the answer, unfortunately, is unequivocal: employers receive decided advantages, and hired workers (trade unions) can win dispute with the employer only by miracle.

In real life employer has essential advantages over the worker and without the Labour code. They are : money for judicial consideration of dispute (lawyers), time and money in case dispute is tightened ( family won't starve ) and the natural fear of the hired worker to lose work at last, on its party. Isn’t it enough? Is it to poorly by our employers available possibilities to dismiss the worker undesirable by them? They extremely need also to establish videosupervision ("the bugs") behind he, aren’t they ? Is it not enough for our employers, that Ukrainians are ready to work voluntary much more than 8 hours per day? They still need the official permission to increase the working day the order, the permission not to consider is silent hours when the worker «is in the stage of expectation of work», aren’t they ? I understand that employers aspire to "ideal" and this ideal depends on such cases: everything is possible for them, and the hired worker can’t do anything. (Here whence there are emotions about the legalized slavery.) But ukrainian Deputies will accept the Labour code, and they were selected in the Supreme body of Ukraine not by only employers.

Thus, if by the working out of the new labor legislation they’ll  consider the Ukrainian experience and present real condition of labor relations in Ukraine first of all we will inevitably come to conclusion: today it is necessary to the country such Labour code which would offer certain advantages to hired workers in relations with employers. It wouldn't be durable and it isn't necessary to us the eternal Labour code. As well as any other law, it is necessary to change it in time , in time to react to changes in the labor relations, developing out of the law, in real measurement of life.

For the last two decades the pendulum of labor relations has very strongly shaken towards employers and for its returning in due course to an ideal point of balance, today is necessary its resolute course towards the hired worker.

First of all, in my opinion, it is necessary to write out essential powers of associations of hired workers( it meens about trade unions) in the Labour code. And there won’t be any division on "representative" and «not representative»! Compulsion is caused by that only trade unions can talk as equals to employers, and the account of the concrete situation which have developed in Ukraine with observance of fundamental laws of hired workers. References on the rights of trade unions are registered in the separate law I consider are wrong. In this case, at first, «porridge oil you will not spoil», secondly, there is a good occasion to correct law in force lacks about the activity of trade unions (I mean the rule that the legislative norm accepted later, has an advantage over earlier accepted).

Also , for example, it is necessary to put compulsion (not instead of possibility, as in the present project) drawing up of the written labor contract between the employer and the hired worker (or the written collective agreement). It is necessary to state as much as possible accurately positions about the written labor agreement of the concrete employer with the concrete worker – what in such agreement can be written down by a mutual consent, and what categorically can't. I understand, that very often these contracts will have the formal character or they will be made with obvious preferences for the employer and the hired worker, suffering from unemployment, will be compelled to agree with  this. But it’ll be only at first time . When the worker can't protect itself with help of such contract in court next time he will concern its drawing up differently. Besides , I am not completely sure that each employer will want to fix the working conditions discriminating the hired worker on a paper. It is better for him today because there is real discrimination , and on a paper – all is pure and lawful.

With help of the obligatory written contract it is possible to solve a problem of duration of the working day. Certainly , there are some situations when manufacture demands more than 8 working hours per day. Then fix such cases in separate labor agreements between the concrete employer and the concrete worker (or collective). Because of it is an exception –let it’s fixed under the mutual agreement between the parties. But to put such norm in the Labour code (by the order of the employer) means that the exception becomes norm and the employer wouldn’t prove that at it’s an exception of the rules, and the hired worker should prove that its case is not an exception.

The labor code isn't accepted by  consensus on any conciliatory council of trade unions and employers. It is accepted by a legislature which can and should establish not so much on pharmaceutical scales "paper" balance, how many really restores its real preferences to this or that party, that is resolutely destroy the disbalance which has developed in a society at the moment of adoption of law, in this case – the Labour code.

What we see in labor relations today ? Is it the list towards hired workers? Their unfairly big rights ruin manufacture and business, isn’t it ? It is to businessmen have run into debt the salary, isn’t it ? They, having worked all life, receive scanty pension because profits received in envelopes, isn’t it ? It doesn't suffice them on improvement and  they have underpayment  under "sick-lists", isn’t it ?

We have real disbalance in infringement of the operating labor legislation, in distribution of the rights and duties between the employer and the hired worker in favor of the first. Certainly, one statement on a paper of legislative rules this situation not be changed . But also to assert that absolutely nothing depends on what will be written down in the Labour code is incorrect. The accurate legislative norm is the most powerful argument in judicial and pre-trial disputes. It is necessary to give to the parties of labor disputes such argument. Certainly, first of all to that party which aspires to the fair, lawful permission of the labor conflict.

And today the problem of  ukrainian Deputies consists, on my belief, in an establishment of such legislative rules of labor relations which would improve these relations in real life at the given concrete stage. And if for this purpose it is necessary to give certain advantage to hired workers – it is necessary to do it.

Viacheslav Roi ,


The chairman of the  Federation of trade unions of workers of small and average enterprise  of Ukraine

Specially for the magazine "Narodniy deputat" (№ 7/8 (67-68), July-August, 2010)