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07.10.2005 | Viktor Pavlykivskiy, Kharkiv

Observance of labor rights in Ukraine today and the role of criminal law in defending these rights

   

The right to employment, as well as other labour rights, is an inherent right like the right to life. The reality of our social-economic rights depends on the reality of this right. Being the most important social-economic rights, labour rights are regulated not only by Ukraine, but also by the entire world community. Acknowledgement and guarantees of these rights are declared in such basic international documents as the Universal Declaration of human rights and the International Pact on economic, social and cultural rights. Modification of political, economic and social conditions have resulted in the radical changes in our country. These changes concern the sphere of labor relations too. Violations of elementary rights connected with labor relations have become a usual thing. According to the statistics of the International labor organization, four out of five Ukrainians consider themselves to be poor and do not hope to break loose from poverty until their death. 80% of Ukrainian citizens believe that they have no access to the satisfactory medical service, 40% of workers have not obtained their salaries during past three months. One should point to the noticeable growth of the proportion of labor conflicts in the civil proceeding. So, in 1996 the number of labor offences was about 10000, and in 2000 this number was more than 243000. Increase of the number of violations of labor rights in Ukraine is also confirmed by the following data: in 1996 one violation of labor rights occurred for 2500 workers; in 2000 this index became one violation for 90 workers. The analysis of court statistics of civil cases in the sphere of protection of labor rights allows to draw the conclusion that the majority of claims connected with labor relationships form two categories of cases:

1) not-payment of salaries – this category of cases makes, in the past years, the lion’s share of all labor conflicts;

2) illegal dismissals – although this category is not so popular as the previous one, the damage is inflicted directly to enterprises; in particular, in 2000 the damage was 5.5 million hryvnas and in 2001 it increased to 5.97 million.

It should be noted that the official statistics mainly reflects the violations of labor rights at state enterprises. Yet, this does not mean that the problem of protection of labor rights of citizens does not exist at private enterprises. The number of violations at these enterprises is much greater, although they are not so obvious. So the organs of the Ministry of Justice disclosed the facts, when the employers in small-scale and middle-scale business did not conclude not only collective, but even personal contracts with the hired workers. The workers are hired on the basis of oral agreements, no records on the job are entered into the work-books, salary is given not through a pay-roll, but personally (payment for one workday is 5-10 hryvnas in towns and up to 5 hryvnas in villages). Such workers even do not get the minimal salary envisaged by law, although they work for 10-12 hours per day.

However, even the statistical data, which we have, confirm the essential increase of the number of violations in the sphere of labor relations. So, in accordance with a report of the Minister of labor and social policy, during 2001-2002 66 thousand enterprises were checked in Ukraine, where 224 thousand violations were revealed.

This situation, dangerous for our country, is caused by a series of reasons and preconditions. One of them is the fact that the Code of laws on labor, adopted on 10 December 1972, acts already for more than 30 years. It is obvious that principal political and social-economic changes have occurred during these years. The life demanded introduction of changes and amendments to the Code of laws on labor. During the 30-year period more than 600 such changes have been introduced in the Code. The most essential alterations were made to the basic sections of this document, such as: collective agreement, labor agreement, rest period, labor protection, individual labor agreement, trade unions and participation of workers in management of enterprises, establishments and organizations.

Yet, the operating code, even with the changes and amendments, does not meet in full measure the political, economic and social realities, it does not take into consideration, and sometimes even contradicts to the norms contained in a number of new laws, in particular, the norms on remuneration of work, leaves, collective contracts and agreements, order of settling of collective and labor conflicts, insurance, employment of population, trade unions, unions of employers, etc. In this connection the question about the development and adoption of the new code of laws on labor becomes very urgent.

It is noteworthy that, along with the absence of modern legislative base and efficient control by the state over the observance of labor laws, there exists another very important reason of violation of labor rights of citizens: unwillingness of employers, especially private entrepreneurs, to obey the operating laws. The wish to obtain super-profits makes an employer to violate the rights of his workers. It is possible, first of all, because of the general economic state in Ukraine and the mass unemployment, which makes people agree to any work under any conditions. According to the official data, the registered level of unemployment among able-bodied population of Ukraine did not exceed 5% during last years, including year 2002. Yet, the official data do not give the real picture. A poll of the International labor organization evidences that at least 12% of respondents in Ukraine have no job.

One more reason of violations of labor rights is the absence of sufficient legal knowledge by workers of their rights, as well as methods of realization and protection of these rights. Serious legal education of citizens is necessary for the increase of effectiveness of the collective-contractual regulation and, as a consequence, the proper level of protection and provision of rights of hired workers. They must realize their role and place in organization of these activities, know their rights and, what is fundamentally important, be able to defend the rights in a civilized way. I want to draw attention to the latter item.

In Ukraine labor rights of citizens are traditionally defended not only by the norms of civil, labor and administrative legislation, but also by criminal law. So, every worker must know that the employer, which brutally violates the most important human rights and freedoms, can be brought to criminal responsibility.

The Criminal Code of Ukraine of 2001 envisages the responsibility for premeditative impediment to the legal activities of trade unions (Article 170 of the Criminal Code), impediment to the legal activities of journalists (Article 171 of the CC), brutal violation of labor legislation (Article 172 of the CC), brutal violation of labor agreement (Article 173), coercion to participation in a strike or hindering in participation in a strike (Article 174), non-payment of salary or other payments envisaged by law (Article 175 of the CC).

The responsibility for violation of labor rights is still envisaged by the norm of Article 172, which establishes responsibility for illegal dismissal because of personal motives and other brutal violations of labor laws. Thus, the law envisages only two alternative forms of criminal deed of this type: 1) illegal dismissal and 2) other brutal violation of labor laws. As to the first form, it should be noted that the right for job is one of the most important human rights and freedoms, so deprivation of this right is regarded as one of most brutal violations of rights and freedoms of a worker. At the same time, the analysis of court practices evidences about the complexity of application of this norm, since the law acknowledges a dismissal to be criminal only in the presence of personal motives in the actions of the guilty. The law does not contain any explanations on the personal motives. At the same time, reasoning from the law, one should realize that the legislators recognize, in some cases, the possibility of existence of a not-personal motive of dismissal. Yet, it should be pointed out that science interprets the personal motive as an inducement, which is peculiar to certain person at commitment of concrete crime and is a ground of its commitment. So, any conscious motive, which induces a concrete person to the commitment of socially dangerous deed, may be regarded as a personal motive.

I want to point out one more contradiction at consideration of personal motive as a necessary feature of illegal dismissal. The majority of scientists have the opinion that illegal dismissal is one of the most brutal violations of labor legislation, which is also confirmed by the direct analysis of the law. The loss of job in most cases deprives a person of the possibility to protect his/her rights, in contrast to other labor violations. Besides, the loss of job results in arduous search of some other job, absence of means for living, troubles in family, etc. Thus, the question arises, why criminal responsibility for the most socially dangerous violation of worker’s rights (illegal dismissal) is restricted by the obligatory ascertainment of certain (personal) motive of these actions, unlike other (less serious) violations of labor rights, where it is sufficient to establish only the level of seriousness of the violation.

Secondly, the appearance of different forms of property, including the ownership of the means of production, caused the appearance of enterprises, establishments and organizations of various forms of property. Besides, the operating legislation allows a businessman to hire workers without registration of a juridical person. Nobody doubts that the illegal dismissal of a worker at private enterprises or by employer-businessman is always accompanied with personal motives (either personal dislike or the wish to improve the work of the enterprise), because the only purpose of such employers is guaranteeing of normal work of their enterprises and obtainment of profit. Yet, this approach is absolutely ignored by court practices.

So, one should realize that any illegal dismissal, that is dismissal of a worker with the obvious violation of grounds or procedure of dismissal, must be regarded as criminal.

As to the other form of criminal violation of legislation on labor, the law stipulates that violation of labor rights of a citizen is a crime, if this violation has been acknowledged as brutal. Court practice relates to labor legislation the laws on labor, which directly determine the labor rights of citizens, and the subordinate laws. In practice, violation of any right of a worker, envisaged by either a law or a subordinate law, can be recognized as criminal in the presence of other factors. The main problem, which hampers, to certain extent, the law-enforcing organs and courts in application of this legal norm, is the demand of legislators to determine the violation of labor rights of a citizen in compliance with an appraisal category. So, according to part 1 of Article 41 of the Code of Ukraine on administrative offences, a person guilty of violation of the demands of labor legislation is brought to administrative responsibility. Part 2 of Article 172 of the Criminal Code of Ukraine envisages responsibility for brutal violation of labor legislation. The only distinction of criminal violation of labor legislation from an administrative delict is recognition of this offence as “brutal”. Only a “brutal violation of labor legislation” is considered to be criminal. The analysis of legislation and court practices shows that a violation is regarded as brutal on the basis of the following criteria, each of which has independent meaning.

1. Nature of the violated labor rights. Undoubtedly, violation of basic human rights stipulated by the Constitution of Ukraine or independent legal acts is regarded as brutal. Such basic rights are: the right to work, right for leave, right for remuneration of labor not less than the minimal wage established by law and the right for rest. On the other part, non-fulfillment by an employer of the demands of Article 23 of the Code of laws on labor (obligation to explain the worker’s rights during conclusion of labor contract) would not be a brutal violation, if to base on this criterion.

2. Victim. The law reads that a victim of such crime is a worker, that is a physical person, which works in accordance with labor contract at an enterprise, establishment or organization, in their associations or for a physical person. Our legislation focuses especial attention on guaranteeing and protection of rights of most vulnerable categories of citizen, such as youth, women (including mothers) and invalids. So, violation of rights of these categories of workers must, in most cases, be considered as brutal violation of the laws on labor. Moreover, the assessment is also influenced by the number of workers, regarding to which the violation is committed. So, the social danger of an act connected with violation of rights of a group of workers of an enterprise is much more than danger of violation of the rights of one worker.

3. Objective features. During the solution of the question on brutal violation of labor legislation, the analysis of the offence, its consequences, ways and conditions, under which it is committed, is very important too. Brutal violation of rights of workers can be confirmed by systematic character of such violations, serious consequences in the form of physical, material and moral damage, certain way of violation of labor rights connected with physical or psychical coercion, as well as the conditions, which do not give the worker the opportunity to decide on his behavior. So, according to the Resolution of the Plenum of the Supreme Court of Ukraine on the practice of solution of labor controversies, a court, solving the question about brutality of a violation, must ground on the character of the offence, conditions, under which it has been committed, and the damage, which has been inflicted (or could be inflicted) by it.

4. Subjective features. All criminal violations of labor rights are committed only premeditatedly. Yet, the motives and purpose of an offence are important for solution of the question about criminal responsibility. In practice, sufficient attention is not given to the motives of commitment of the considered crimes. Yet, without doubt, just these characteristics can determine a brutal violation of legislation on labor. For example, personal enmity and other malicious motives noticeably increase the level of social danger of such offences.

Summing up the above-said, I want to point out that the norms on criminal responsibility for violation of labor rights of citizens demand improvement.
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