<<
>>

§ 1 Constitution as basis of system of sources of the law of master and servant

At top of national system of sources of law traditionally there is a constitution which fixes not only bases of the constitutional system of the state, proclaims and guarantees fundamental laws of the person and the citizen, the competence of the supreme bodies of the government, but also establishes the constitutional bases (principles and the major norms) separate branches of the national legal system.

Is not an exception and branch of the law of master and servant. The constitutional norms create basis of branch of the law of master and servant, formulate its basic beginnings defining directions of development and perfection of the labour legislation.

Konstitutsionalizatsija the labour legislation of Armenia, Belarus, Kazakhstan, Kyrgyzstan and Russia.

The problem konstitutsionalizatsii the labour legislation is enough new and poorly investigated in a science of the law of master and servant: it it was mentioned only in separate publications of English scientists of O.Kan-Frojnda [273], J. Fadzh [274], Belarus researcher G.A.Vasilevicha [275]. G.A.Gadzhiev wrote to Russia about konstitutsionalizatsii private law [276]; social and economic development of statehood - N.S.Bondar [277], criminal trial - L. V.Golovko [278].

With reference to difficult concept «konstitutsionalizatsija the labour legislation» originally it is necessary to understand two initial concepts and a parity between them: the constitution and the labour legislation.

In legal to the literature the constitution is considered as «the legal system centre» [279], «a kernel of sources of a constitutional law» [280], «a kernel of system of sources of the law of master and servant» [281]. Higher validity of the constitution and constitutional laws in comparison with ordinary laws was underlined in beginning HH by century German scientific G.Ellinek [282], that now became an axiom in legal science and legislative activity of many states of the world.

The constitution represents the law having the higher validity both fixing basic principles and norms of legal regulation of the major public relations. We find similar definition in Law item 2 «On standard legal acts of Byelorussia». The close definition was fixed also by the Kirghiz legislator in item 1 of item 4 of the Law «On standard legal acts of the Kirghiz Republic».

With some differences similar definitions can be found out in the educational and scientific literature on a constitutional law [283]. However, some scientists (for example, E.I.Kozlova), allocating property or a sign of the higher validity, separately do not allocate it in the general concept of the constitution [284].

Unlike Belarus and Kyrgyzstan in the Republic Kazakhstan Law «On legal acts» there is no legal definition of the constitution 2016, but thus last is carried by the Kazakhstan legislator to cores NPA (item 7) and has in Kazakhstan the higher validity (item 10 item 1) [285].

In the Russian Federation though «the separate Law is not passed About standard legal acts» or «On legal acts» that it is possible to recognise as some omission from the Russian legislator, the question on the Constitution validity is solved in ч.1 item 15 of the Constitution of the Russian Federation («the Constitution...

Has the higher validity...» [286]).

Value of the higher validity of the Organic law scientist-constitutionalist O.E.Kutafin, specifying on its first place in hierarchy NPA, operating in Russia, considering it as the legal act of the higher order, and its norm - as rather precisely characterised a starting point of all legal system [287]. About the constitution as about base for all labour legislation V.I.Semenkov [288] truly wrote.

The constitution, being the politiko-legal document, urged to predetermine and direct activity of the state bodies and officials in realisation legal and state social policy. The constitution establishes legal standards, the part from which has the direct relation to work sphere.

In this connection scientific value is represented by definition of legal standards of a policy in the work sphere, offered in K.D.Krylov's thesis for a doctor's degree in which opinion, «it is set the recognised on international and interstate level of the rules of law defining activity of the states, social partners and other institutes of a civil society on working out and realisation of the purposes, problems, principles, the basic directions, priorities, forms and methods of development of labour and other relations directly connected with them» [289].

Having understood the first initial concept "constitution", now it is important to define the second term "labour legislation". We will notice, that this term or its synonym «the legislation on work» has various legal fastening in member states EAES. It is Even more distinctions in definitions of this category - in the literature.

According to ch. 1 item 4 TK of Armenia the Republic Armenia labour legislation is regulated by the Republic Armenia Constitution, the present Code, other laws and the effective as law governmental orders of Republic Armenia containing norms of the law of master and servant, decrees and orders of the President of Republic Armenia, the governmental orders of Republic Armenia and the Prime minister of Republic Armenia. Discrepancy of the given norm as the labour legislation cannot be regulated TK Armenia, other laws etc. is obvious., it can consist of these and others NPA, include them. It is obvious, that the given discrepancy is necessary for correcting, having replaced a word "is regulated" on words «consists from» or "includes" (by the way, in such informal transfer edition of the given norm on a site the SQUANDERER) is in English given. Let's pay attention, that the Armenian legislator unduly widely treats the term "labour legislation", carrying to it not only TK Armenia, laws, NPA the President of Republic Armenia, the Government and the Prime minister, but also the Constitution.

The term «the legislation on work» (it is used in Byelorussia as a labour legislation synonym) legally is defined in item 1 TK of Belarus: «the legislation on work - set of the standard legal acts regulating public relations in sphere of relations labour and connected with them». At the given definition, in our opinion, there is a tautology as the legislation on work regulates not «public relations» in sphere «... Relations», and the public relations labour and connected with them. Besides, made definition does not allow to delimit the legislation on work from local standard legal acts.

Addressing to operating TK Kazakhstan 2015, we will notice, that item 1,

Fixing a huge legal glossary from 82 legal definitions of the terms used in this Code, unlike item 1 TK of Belarus does not contain legal definition of key concept "labour legislation" that it is necessary to recognise as serious omission. Besides, the glossary is extremely inconvenient in use as concepts defined in it are located not in alphabetic order, and in raznoboj, i.e. is unsystematic (similar reproach it is possible to address and to the Belarus legislator).

According to ch. 1 item 2 TK of Kazakhstan the Republic Kazakhstan labour legislation is based on the Constitution of Republic Kazakhstan and consists of the given Code, laws of Republic Kazakhstan and others Republic Kazakhstan NPA. The positive moment of the given norm is that the Kazakhstan legislator does not carry the Constitution to the labour legislation, but underlines that the Constitution acts as a labour legislation basis. The lack sees in the following. All laws can be carried to the labour legislation at close interpretation of the above-stated norm and others NPA in which even there are no norms of the law of master and servant besides TK Kazakhstan in general. Besides, given formulation does not allow to exclude the local certificates accepted by the employer which have is standard-legal character though and with narrower sphere of action from the term "labour legislation".

In TK the Russian Federation the legal definition of the term "labour legislation" is not present, but from regular and the grammatical interpretation ch. 1 item 5 of the given Code follows, that to the labour legislation in Russia are carried: TK the Russian Federation, other federal acts and laws of subjects of the Russian Federation, containing norms of the law of master and servant. I.K.Dmitriev has truly paid attention, that in the given edition (the Federal act from 30.06.2006 № 90-FZ) «the concept of the labour legislation is defined more narrowly», and also that «concept change« the labour legislation »has the general (through) character and is nowadays used in all TK, other certificates» [290].

As labour legislation basis in Russia the Constitution and federal constitutional laws acts. Behind labour legislation frameworks in Russia on sense ч.1 item 5 TK the Russian Federations have appeared others NPA, containing norms of the law of master and servant: decrees of the President of the Russian Federation; the governmental orders of the Russian Federation and NPA federal enforcement authorities; NPA enforcement authorities of subjects of the Russian Federation; NPA local governments.

According to ch. 1 item 3 TK of Kyrgyzstan regulation of labour relations and other relations directly connected with them, according to the Constitution of the Kirghiz Republic is carried out by the labour legislation (including the legislation on a labour safety) and others NPA, containing norms of the law of master and servant: the present Code, other laws, decrees of the President and the governmental orders of the Kirghiz Republic, certificates of local governments and the local normative acts containing norms of the law of master and servant. We will notice, that terminologically and redaktsionno the given norm is rather close to ch. 1 items 5 TK the Russian Federation (both in a regulation subject, and on inclusion in the block labour legislation «the legislation on a labour safety» and on a bulky word-combination «the standard legal acts containing norms of the law of master and servant»). A part 1 items 3 TK Kyrgyzstan does not allow to give the unequivocal answer where, according to the Kirghiz legislator, the labour legislation comes to an end and «other standard legal acts containing norms of the law of master and servant» begin. But, judging by definition of the term "legislation" in Law item 2 «On standard legal acts of the Kirghiz Republic (« set of the standard legal acts regulating public relations »), between this law and TK Kyrgyzstan is available the obvious contradiction.

Important also correctly to correlate categories "act" and «the legislation certificate». In Byelorussia the specified concepts are accurately enough defined and correlated in Law item 1 «On standard legal acts of Byelorussia». The term "act" is wider, than "law", but already, than «the legislation certificate» as covers itself the Constitution of Byelorussia, laws of Byelorussia, decrees and decrees of the President of Byelorussia. In Russia the term "legislation" is used in narrower sense: covers only the Constitution, federal acts and laws of subjects of federation that causes a defensible critical estimation from E.B.Hohlova of [291] and some other scientists-lawyers. In this connection as the proved we consider opinion And. The Island Snigirevoj which criticised understanding of the term "labour legislation" «in narrow (own) sense of a word as set only laws with reference to regulation of labour relations», including its inadequate. In its opinion it is necessary to use wide treatment of system of the labour legislation «with inclusion in it of all standard legal acts regulating the relations labour and connected hardly» [292].

Thus, it is represented, that the Belarus, Kazakhstan and Kirghiz experience with wide treatment of concept of the legislation is more proved.

For elimination of the above-stated lacks and unification of the term "labour legislation" in member states EAES the following norm - a definition which in the long term should be fixed in item 1 TK of Belarus, item 1 TK of Kazakhstan, and also in Modelling TK is offered:

«The labour legislation (the legislation on work) - set the accepted when due hereunder on republican, branch on republican, branch or local level of the standard legal acts regulating public relations labour and directly connected with them».

In case of perception of the given wide concept "labour legislation" the Russian legislator, this norm-definition should be modernised taking into account a federal state system of the Russian Federation:

«The labour legislation - set accepted when due hereunder at federal level, level of subjects of federation, branch or territorial level of the standard legal acts regulating public relations labour and directly connected with them».

Further for the present research terms "labour legislation" and «the legislation on work» will be used as synonyms in the above-stated wide sense.

Debatable in jurisprudence was and there is a question on, whether the Constitution enters into the labour legislation. If the majority of scientific - constitutionalists not without justification carry the Constitution to certificates of the constitutional legislation the majority of scientists in the field of the law of master and servant the given question in general bypass (write about the Constitution as about a source of the law of master and servant or about a source of legal regulation of the relations labour and directly connected with them, not correlating it with the labour legislation).

Belarus researcher V.I.Krivoj in one of the comments to TK Belarus carries the Constitution to certificates of the labour legislation [293]. We believe, that such interpretation of item 7 TK of Belarus is erroneous. An arrangement the Belarus legislator «other certificates of the legislation on work» in item 2, instead of item 1 ch. 1 item 7 TK of Belarus should be interpreted as scope by the term «the legislation on work» the given Code and other standard legal acts (except the Constitution). Taking into account that the quantity of the principles concerning a subject of the law of master and servant, in the Constitution (both Belarus, and other member states EAES) constitutes less than 5 % from all volume of a standard material, and the basic file corrected, containing in the Organic law, are konstitutsionno-legal instructions, we believe, to carry the Constitution to certificates of the constitutional legislation, instead of labour more correctly. Thus there is no contradiction that the Constitution is a source of regulation of the relations labour and directly connected with them, but thus is not the certificate of the legislation on work.

After all, other sources concern the first (patrimonial) concept (collective agreements, agreements, local standard legal acts, employment contracts) which also are not certificates of the legislation on work also.

For comparison we will notice, that in four of five TK member states EAES (except TK Armenia) the Constitution is accurately dissolved with the labour legislation. Thus, correct it is necessary to consider the approach according to which the labour legislation is based on norms of the Constitution, but the Constitution is not included into the labour legislation. This conclusion proves to be true as well logic laws as one phenomenon cannot be based on other thus, that the second phenomenon simultaneously enters into the first.

The category "constitutionality" which was investigated Belarus (G.A.Vasilevich [294] closely adjoins to concept konstitutsionalizatsii,

And. G.Tikovenko [295], etc.) and the Russian scientists (N. V.Vitruk [296], And. V.Zinovev [297]).

So, constitutionality can be considered as one of properties or conditions of the current legislation or separate NPA, expressed in their coordination with the constitutional norms. In turn the concept "konstitutsionalizatsija" reflects dynamics as by the majority of authors it is treated as process of reduction of the current legislation in conformity with the constitutional principles and norms (G.A.Gadzhiev [298], G.A.Vasilevich [299]).

Taking into account the above-stated sights of scientists it is possible to allocate two components (element) of such difficult legal phenomenon, as «konstitutsionalizatsija the labour legislation»: first, it includes process of revealing of contradictions between norms of the Constitution and certificates of the legislation on work; secondly, activity of competent bodies on reduction of the last in conformity with the Organic law.

So, konstitutsionalizatsija the labour legislation is a purposeful process of revealing of contradictions between norms of the Constitution and certificates of the legislation on work with the subsequent reduction of the last in conformity with the Organic law.

The formulated definition is offered to be fixed and used in the legislation of member states EAES (for example, in laws about NPA).

The dialectic interrelation konstitutsionalizatsii with constitutionality is seen in the following: the means konstitutsionalizatsii the labour legislation (as process and activity of competent state bodies) provide constitutionality of the given branch of the legislation.

It is characteristic, that constitutions in the Soviet republics began to be accepted during the same historical period, as the Labour Codes. And between the constitutional norms and institutes of formed branch of the law of master and servant the accurate interrelation was traced. For example, item 18 of the Constitution of RSFSR 1918, according to which «R.S.F.S.R. Recognises work by a duty of all citizens of Republic and proclaims the slogan:« Not the worker, yes not is! »[300] has found the detailed embodiment in norms of the Labour Code of RSFSR 1918 about the labour duty; item 16 of the same Constitution about freedom of the unions, the organisations, actions and associations - in legislative regulation of activity of trade unions and the rights to the conclusion of collective (tariff) contracts (in the beginning in shape subordinate legislation NPA, and later - in the Labour Code of RSFSR 1922).

If to address to the Constitution of the USSR 1936 according to item 118 to citizens of the USSR the right to work was provided, that is the right to reception of the guaranteed work with payment of their work according to its quantity and quality. Article 122 of the same Constitution proclaimed a principle of gender equality of women and men in all areas of a life, including the equal right to work, a payment, rest, social insurance [301]. We find out similar constitutional norms and in item 122, 126 Constitutions of RSFSR 1937, item 93 and 97 Constitutions of the Armenian Soviet Socialist Republic, item 93 and 97 Constitutions BSSR of 1937, item 96 and 100 Constitutions of the Kazakh Soviet Socialist Republic 1937 and item 89 and 93 Constitutions of the Kirghiz Soviet Socialist Republic. Let's notice, that the above-stated constitutional laws to some extent have found the legislative settlement in the Soviet labour legislation though it is necessary to tell and about deviations from idea of the right to work in action of the so-called emergency legislation in the USSR with 1940 on 1956

In the Constitution of the USSR 1977 and the same constitutions (organic laws) of union republics of 1978 (including the Armenian Soviet Socialist Republic, BSSR, the Kirghiz Soviet Socialist Republic, the Kazakh Soviet Socialist Republic and RSFSR) the period of "the developed socialist society» sotsialnoekonomicheskie the rights, including the right to work, on rest, have received even more developed fastening (for example, in item 40 and 41 Constitutions of the USSR 1977, in item 38 and 39 Constitutions BSSR of 1978; similar articles were fixed and in constitutions of the Armenian, Kirghiz, Kazakh Soviet Socialist Republic and RSFSR). The constitutional norms of this period have received concrete filling in Fundamentals of legislation of USSR and union republics about work of 1970 and the Labour Codes 1971-1972 (with their subsequent updatings) [302].

Passing by the modern period of the constitutional fastening of the basic laws of master and servant and freedom concerning the social and economic rights, i.e. the second generation of human rights, we will notice, that they are fixed practically in all modern constitutions (for example, in item 12 of the Organic law of Germany 1949 [303], item 37 of the Constitution of Russia, item 43-45 of the Constitution of Ukraine, etc.).

Let's more in detail stop on modern constitutions of five compared member states EAES, we will find out, in what basic distinctions in the constitutional beginnings of the law of master and servant fixed in them are expressed and then we will estimate how much they are embodied in the national legislation (i.e. we will define degree konstitutsionalizatsii the labour legislation).

The major constitutional laws and freedom in work sphere are concentrated in item 37 of the Constitution of Russia 1993 [304], in item 41-43 of the Constitution of Byelorussia 1994 [305], item 32 and 33 Constitutions of Republic Armenia 1995 [306], item 24 of the Constitution of Republic Kazakhstan 1995 [307], item 23, 42-44 Constitutions of the Kirghiz Republic 2010 [308]. We will carry out the short comparative analysis of norms of constitutions regarding laws of master and servant.

After disintegration of the USSR and finding of independence a number of the former Soviet republics have hastened to refuse a constitutional law on work, having replaced with its principle of freedom of work, or a free choice of work. The big contribution to a substantiation of a principle of freedom of work and employment contract freedom to the USSR, and then and to Russia (even before its fastening in Constitutions of the Russian Federation 1993) was brought by Russian scientist L.J.Bugrov312 [309].

According to ch. 1 items 37 of the Constitution of the Russian Federation work is free; everyone has the right to dispose freely of the abilities to work, to choose a sort of activity and a trade. In ch. 2 same articles are mentioned and the right to work in the conditions which are meeting the requirements of safety and hygiene. For comparison: in ch. 1 item 32 of the Constitution of Armenia is a question not of free work or the free order the abilities to work (as in Russia), and about the common right on a free choice of work. Similar with Armenian the approach it is selected willows ch. 1 items 24 of the Constitution of Kazakhstan where the common right on work freedom is proclaimed, a free choice of a sort of activity and a trade. In ch. 3 items 42 of the Constitution of Kyrgyzstan have appeared three norms-principles are consolidated at once: First, «the right to work freedom to dispose of the abilities to work, on a trade and occupation choice», secondly, the right on «protection and the working conditions which are meeting the requirements of safety and hygiene», thirdly, «the right to compensation for work not below a statutory living wage». Four above-stated Constitutions the approach selected the Belarus legislator, to the Soviet traditions which have kept some continuity and proclaimed in ch is a little distinct from. 1 items 41 of the Constitution of Belarus the right of citizens of Byelorussia to work. Thus the right to work is understood as the most worthy way of self-affirmation of the person, i.e. the right to a choice of a trade, an occupation and work according to calling, abilities, formation, vocational training and taking into account public requirements, and also on healthy and safe working conditions. Let's notice, that the granted right carries absolute, instead of obligations character, i.e. to it not korrespondiruet a state duty to give to each citizen of Byelorussia such work. According to the constitutional positions the state only conditions for the full-time job, and in a case nezanjatosti persons for the reasons not dependent on it to it training to new specialities and improvement of professional skill taking into account public requirements, and also the unemployment benefit according to the law (ch is guaranteed. 2 items 41 of the Constitution of Belarus). We will notice, that the formulation ch. 1 item 41 of the Constitution of Belarus nevertheless essentially differs from ch. 1 items 38 of Constitution BSSR of 1978 according to which citizens BSSR had the right on «reception of the guaranteed work with a payment according to its quantity and quality and not below the minimum size established by the state» [310].

The majority of operating constitutions of member states EAES (except Kyrgyzstan) in this or that formulation forbid forced labour, embodying in the norms one of the conventional principles of international law in work sphere. If Constitutions of Armenia and Russia are rather laconic in this norm-principle (establish, that forced labour is forbidden) item 1 of item 24 of the Constitution of Kazakhstan provides cases when forced labour is supposed: only on a sentence of court or in the conditions of extreme or the martial law. In turn ch. 4 items 41 of the Constitution of Belarus has combined these two approaches, having forbidden forced labour and having provided from the given principle two similar exceptions, as well as the Organic law of Kazakhstan.

Let's compare norms of five constitutions with reference to the individual law of master and servant. In item 54 of the Constitution of Kyrgyzstan guarantees in employment sphere are separately formulated: the state promotes increase of professional qualification of citizens in an order, statutory. For comparison: in the Constitution of Belarus they are fixed in item 41 together with the right to work, an interdiction of forced labour and collective laws of master and servant.

Only in the Constitution of Armenia there are the norms, concerning employment contract institute. So, it agree ch. 4 items 32 of the given Constitution are forbidden reception on a permanent job of children aged till 16 years; an order and conditions of their reception on temporary job are established by the law. The labour legislation of Belarus, Kazakhstan, Kyrgyzstan and Russia is characteristic, that, basically, do not exclude constant employment of minors, including at the age from 14 till 16 years.

In all compared constitutions there are norms-principles about the right to a fair payment (compensation for work) though in formulations there are also small differences. So, it agree ch. 2 items 32 of the Constitution of Republic Armenia each worker have the right on fair and not below the statutory minimum size a payment. According to ch. 2 items 37 of the Constitution of the Russian Federation everyone have the right to compensation for work without any discrimination and not below the minimum wage rate established by the federal act. Besides, according to ch. 2 items 7 of the same Constitution in the Russian Federation are protected work and health of people, the guaranteed minimum wage rate is established. As we see, if the Armenian legislator used in the given constitutional norm - a principle an adjective derivative of a philosophical category "justice" the Russian legislator was limited to instructions on absence of discrimination though the given principle has independent fastening and possibly here is excessive. According to ch. 1 item 42 of the Constitution of Belarus to the persons working on hiring, is guaranteed a fair share of compensation in economic results of work according to its quantity, quality and public value, but not below the level providing with it and their families free and worthy existence. The instructions on conformity of quantity and quality of work ascend all to same item 38 of Constitution BSSR, and here «not below the established minimum wage rate» (as in the Soviet Constitutions of 1970th and the Constitution of Armenia and the Russian Federation) the Belarus legislator has decided to refuse instructions. The formulation used in the item («Not below the level providing with it and their families free and worthy existence») more abstract character has 42 Constitutions of Belarus, but also obliges to much. Anyway the criterion of worthy existence of the worker and his family at the expense of wages should focus the state to an establishment of the minimum wages at least not below the budget of a living wage taking into account members of a family (including dependents). We will notice, that according to the labour standards of the Council of Europe fixed in item 1 of item 4 of the European social charter the given minimum it is established at a rate of 60 % from the average salary on the country [311]. In ch. 2 items 42 of the Constitution of Belarus in development of a principle of gender and age equality are fixed that women and men, adults and minors have the right to equal compensation for work of equal value. The same right in ch is laconically enough formulated. 2 items 24 Constitutions of Kazakhstan according to which everyone has the right to compensation for work without any discrimination and in ch. 3 items 42 of the Constitution of Kyrgyzstan - as about the right to compensation for work not below a statutory living wage. Attracts attention, that unlike the Armenian and Russian organic laws the Constitution of Kyrgyzstan connects a minimum in a payment of the citizens not with the minimum wage rate, and with a statutory living wage, that is represented de jure rather successful decision, though de facto in practice in member states EAES (including and Kyrgyzstan) the sizes of the minimum wages (minimum wage rate) do not reach not only living wage sizes, but at times and abject poverty level.

In five compared constitutions of member states EAES the right to rest is proclaimed. Thus in organic laws of Armenia, Kazakhstan, Kyrgyzstan and Russia regarding an establishment of duration of working hours (maximum time of work), the days off and annually paid holiday (its minimum duration) with insignificant editorial differences sending to the law (federal act) is made. In turn according to item 43 of the Constitution of Belarus the right working on hiring on rest is guaranteed «by an establishment of working week no more than 40 hours, operation time reduction at night, granting of annual paid (labour) holidays and days of weekly rest».

With reference to the collective law of master and servant in constitutions of member states EAES two constitutional laws, as a rule, are fixed: the right to association, including in trade unions, and also the right to strike (ch. 2 items 32 of the Constitution of Armenia, ch. 3 items 41 of the Constitution of Belarus, ch. 1 items 30 and ch. 4 items 37 of the Constitution of the Russian Federation, item 23, item 3 of item 24 of the Constitution of Kazakhstan, item 2 of item 4 and item 43 of the Constitution of Kyrgyzstan). In the constitution of Belarus the right to the conclusion of collective agreements, agreements is specially allocated also.

In ch. 4 items 37 of the Constitution of the Russian Federation both on its sample and in item 3 of item 24 of the Constitution of Kazakhstan are proclaimed the right to individual and collective labour disputes with use statutory (federal act) of ways of their permission.

The carried out comparative analysis of norms of constitutions of member states EAES in comparison with their national TK, laws and others NPA allows to draw a conclusion that overwhelming majority of konstitutsionno-legal instructions in work sphere in Armenia, Belarus, Kazakhstan, Kyrgyzstan and Russia find detailed settlement in the branch legislation, in concrete legal institutions and norms. At the same time certain deviations from the constitutional norms still remain. We will consider examples from the legislation of the compared states.

As we have found out, in all the constitution of member states EAES the principle of prohibition of forced labour is proclaimed. According to ch. 4 items 41 of the Constitution of Belarus forced labour are forbidden, except work or the service defined by a sentence vessels or according to the law about extreme and the martial law. The given constitutional principle also is proclaimed in the Declaration the SQUANDERER about basic principles and the rights in sphere of work 1998 [312] as the conventional principle of international law in sphere of work and in more details fixed in a number of international treaties (the Convention the SQUANDERER № 29 «About forced labour abolition» 1930 and the Convention the SQUANDERER № 105 «About forced labour abolition» 1957 [313]), and also in item 13 TK of Belarus. At the same time both in most TK Belarus, and in others NPA still there are deviations from the given principle:

Disciplinary transfers of workers (so, it agree ch. 3 items 30 TK of Belarus the workers, obliged to refund expenses under the maintenance of children who are on the state maintenance, for inadequate performance of labour duties, labour discipline infringement can be translated the employer with the consent of body on work, employment and social protection for other work; there are disciplinary transfers and in separate positions and charters about discipline) [314];

Time transfers without the written approval of the worker in connection with industrial necessity which, in particular, is understood as replacement of temporarily absent worker (it it was marked by V.I.Krivym, O.S.Kurylevoj) [315];

Not limited TK or other act use by employers in Byelorussia spheres of application of contract system of hiring that serves as a barrier to dismissal at will of the worker (item 40 TK of Belarus extends only on employment contracts with uncertain term). In these purposes it is necessary to cancel the Decree of the President of Byelorussia from 26.07.1999 № 29 «About supplementary measures on perfection of labour relations, strengthening of labour and performing discipline» [316], and in TK to limit a circle of categories of workers with which the conclusion of urgent employment contracts (including contracts is supposed) and to extend item 40 TK of Belarus to any employment contracts.

Concerning a constitutional law on association freedom in the national legislation of Belarus and Kazakhstan also not all is safe. Not casually regarding observance of Conventions the SQUANDERER № 87 and № 98 Byelorussia was repeatedly discussed in bodies the SQUANDERER (Committee on investigation, Committee on association freedom, and also in Committee on application of norms of the International conference of work) [317]. Among claims from experts the SQUANDERER to Belarus were including norms of the Decree of the President of Byelorussia from 26.01.1999 № 2 «About some measures on streamlining of activity of political parties, trade unions, other public associations» [318] with high enough requirement to quantity of founders of trade union in the organisation (not less than 10), and also an establishment of a parity of workers and founders, «that essentially complicates process of creation of trade union because actually the number of founders can be much more declared 10» [319]. We will notice, that the Decree of the President of Byelorussia from 02.06.2015 № 4 [320], 104th session accepted in the first days the SQUANDERER which were passing from June, 1 till June, 13th, 2015, has a little lowered requirements to the trade-union organisations for their registration. So, in the Decree of №2 words «not less than 10 percent working (trained) from their general number at the enterprise, in establishment, the organisations, but not less than 10 persons» have been replaced by words «not less than 10 founders (members), working (trained) on the corresponding enterprise, in establishment, the organisation». It turns out, that de jure the constitutional law on association in trade unions in Belarus is fixed and even is actively enough used (more than 80 % of workers are members of trade unions), but de facto to create the trade-union organisation in practice happens inconveniently, and in the microorganizations having less of 10 hired workers, it is practically impossible.

If to address to the Republic Kazakhstan Law «About trade unions» from 27.07.2014, that, according to Kazakhstan scientist E.N.Nurgalievoj, in it the basic principle of international law in the work sphere, the formulated SQUANDERER as «association freedom» which is fixed and in item 23 of the Constitution of Kazakhstan is broken. Deviations from a principle of freedom of association in Kazakhstan, at a sight of the same author, are expressed, in particular, in the following: restrictions in kinds of created trade unions and profobedineny; compulsion of the introduction of local trade unions in branch trade unions and their territorial profobedinenija in republican profobedinenija; monopoly for representation at branch level of social partnership only with one kind of trade unions (branch) [321].

It is a lot of problems with konstitutsionalizatsiej the legislation on strikes it is observed in Armenia, Belarus, Kazakhstan and other member states EAES. Settled in item 388-399 TK of Belarus procedure of carrying out of lawful strike is so difficult, that last 15 years in Byelorussia has not been registered any strike though prestrike excitements nevertheless were observed. According to Armenian researcher K.S.Kazarjan «operating Labour code RA has limited the constitutional maintenance of the right to strike... According to 32nd article of Constitution RA strike is not only means of the permission of collective labour disputes, but also a protection frame of labour, social and economic interests in general» [322]. This conclusion can be extended and on TK Belarus, where legal definition of strike in ch. 1 items 388 connects the purpose of its carrying out only with the permission of the collective labour dispute though in the Constitution it is a question of protection by citizens of economic and social interests that is much wider.

About problems in the existing mechanism of the permission of collective labour disputes in Russia, including regarding constitutional law realisation on strike, convincingly wrote And. M.Kurennoj [323], E.S.Gerasimov, N.L.Ljutov [324], V.A.Safonov [325], T.A.Soshnikova [326] and other scientists, but the legislation on strikes still contains weight of restrictions, interdictions, including concerning solidarity strikes.

In conclusion of the paragraph we will formulate some conclusions:

konstitutsionalizatsiju the labour legislation it is necessary to understand as purposeful process of revealing of contradictions between norms of the constitution and certificates of the legislation on work with the subsequent reduction of the last in conformity with the organic law;

The right to work is most full formulated in the Constitution of Belarus, in the truncated variant - in the Constitution of the Russian Federation and in general is absent in Constitutions of Armenia, Kazakhstan and Kyrgyzstan;

The principle of freedom of work (free choice of work) in this or that form is fixed in constitutions of member states EAES (except Belarus);

The principle of an interdiction of forced labour is proclaimed in all constitutions of member states EAES (except Kyrgyzstan), and in Belarus and Kazakhstan are specified on two exceptions of the given interdiction;

Constitutions of member states EAES with small editorial differences guarantee the right to a payment, a right to rest healthy and safe working conditions, on association in trade unions and the right to strike;

The greatest affinity of formulations of constitutional laws of workers is observed in constitutions of the Russian Federation and Kazakhstan that testifies to essential influence in this part of the first on the second;

In the national labour legislation of member states EAES still there are many deviations from the constitutional norms pawning bases of the law of master and servant that should serve as a subject of attentive studying from the party as the legislator, and bodies of the constitutional control.

Problem of direct action of the norms-principles fixed in constitutions of member states EAES.

The questions arising at direct (direct) action of norms of the constitution, were in the centre of attention of some scientists-theorists (S.S.Alekseeva, N.S.Maleina, J.A.Tikhomirov, etc.) and experts in the field of a constitutional law (G.A.Vasilevicha, O.E.Kutafina, And. G.Tikovenko, B.S.Ebzeeva, etc.). The certain contribution to studying of the given problem was brought also by scientists in the field of the law of master and servant in which articles questions of direct application of norms of the Organic law to the relations labour and connected with them (were mentioned by E.A.Ershovoj, K.I.Kenik, O.S.Kurylevoj, E. V.Motinoj, V.I.Popova, M.S.Sagandykova, V.I.Semenkova, etc.). It is represented, that the given problem in a science up to the end is not solved and demands more steadfast attention as from scientists, and pravotvorcheskih bodies.

In ch. 1 items 15 of the Constitution of Russia it is established not only a principle of leadership of the Constitution, but also idea of its direct action and application in all territory of the Russian Federation. The similar rule is fixed and in item 2 of item 4 of the Constitution of Republic Kazakhstan according to which the Constitution has the higher validity and direct action in all territory of Republic.

In ch. 1 item 6 of the Constitution of the Kirghiz Republic is proclaimed norm-principle that the Constitution has the higher validity and direct action in the Kirghiz Republic. We will notice, as in the previous Constitution of Kyrgyzstan 1993 (in edition of 2007) the given norm also was fixed in item 12 [327]. K.S.Ramankulov does a conclusion Of interpretation of this constitutional norm that standard positions containing in the Constitution can be applied directly [328].

In ch. 1 items 6 of the Constitution of Republic of Armenia the rule about the higher validity direct action of its norms is provided. So, distinction with formulations of organic laws of the Russian Federation and Kyrgyzstan consists only in instructions on "direct", instead of "direct" action of positions of the constitution, that in itself does not change an essence.

Unique member state EAES in which Constitution the principle of direct or direct application (action) of its norms directly is not fixed, Byelorussia that it is necessary to estimate as essential omission is. At the same time from the comparative interpretation of some norms of item 112 and 137 Belarus Organic laws providing, that courts carry out justice on the basis of the Constitution and other normative acts accepted according to it, and the Constitution possesses the higher validity, it is possible to deduce a principle of direct (direct) application (action) of its norms.

The problem of realisation and direct application of the constitutional norms and principles in pravoprimenitelnoj to practice has not only theoretical, but also the important applied value. Many visible Russian scientists-lawyers paid attention to necessity of maintenance of direct action of the Constitution vessels and others pravoprimeniteljami (of V.V. Ershov [329], O.E.Kutafin [330], J.A.Tikhomirov [331], B.S.Ebzeev [332], N.S.Maleina [333], etc.). Discussions between scientists are led mainly about in what volume come under to direct (direct) application of norm of the organic law. The urgency of this problem confirms also that two dissertations rather recently defended in Russia have been devoted it And. V.Bogomolova [334] and V.M.Antonenko [335].

As truly marked O.E.Kutafin, «in the constitution of the Russian Federation it is spoken not only about direct action her (ch. 1 items 15), but also about direct action of the rights fixed in it and freedom of the person and the citizen. In a similar way, probably, the basic idea of the is natural-legal doctrine about the human rights existing irrespective of their state recognition, but as a result of such recognition and the constitutional fastening of the rights of the citizen finding quality is expressed.» [336]

Among the Belarus scientists-lawyers idea of direct action of norms of the Constitution consistently defended G.A.Vasilevich [337], A.A.Golovko [338], V.A.Kuchinsky [339].

Disputable the opinion of Kazakhstan scientist L.T.Nazarkulovoj with reference to Kazakhstan is represented: «that the positive potential of Constitution RK of 1995 has been realised, radical reforming of the current legislation and acceptance of novels» [340] is necessary. We believe, that radicalism in questions of reforming of the legislation, including labour in what good will not result.

In maintenance of direct (direct) action of the Constitution the Constitutional Court (Council) and the Supreme Court urged to play a key role.

Considerable successes in the decision of this problem, in our opinion, has reached the Constitutional Court of the Russian Federation. In its many decisions and definitions the idea of direct action of norms of the Constitution (for example, under complaints of citizens M.Tsurkana, V.K.Barabasha, A.N.Bekasovoj, A.E.Ostaeva) is realised. However, some certificates of the Constitutional Court of the Russian Federation concerning a parity with the Constitution of separate norms TK the Russian Federation are not so unequivocally perceived by scientists and legal experts [341] (for example, on K.A.Markin's business [342] and under Open Society complaint «Ship-building factory" Lotus "[343]).

Certain efforts in a direction of maintenance of direct action of norms of the Constitution are undertaken by the Constitutional Court of Byelorussia though, in our opinion, this activity it is obviously not enough.

In the Message of the Constitutional Court of Byelorussia about a condition of the constitutional legality in Byelorussia in 2016 approved by the decision from 18.01.2017 Р-1084/2017, with reference to new edition ch. 4 items 22 of the Code of Byelorussia about the judicial organisation and the status of judges are spoken about strengthening «to a role of the constitutional control in protection of the constitutional values, maintenance of leadership of the Constitution and its direct action» [344]. Unfortunately, the volume of the constitutional justice in Belarus with the subsequent constitutional control expressed in check of constitutionality of certificates of the legislation of the Constitution, from year to year practically came to naught. So, for last 10 years (since January 2007 till January, 2017) In the Constitutional Court of Belarus the authorised bodies with offers on check NPA on conformity of the Constitution addressed only two times (concerning check of some norms of the Law «About a provision of pensions» and Ugolovnoprotsessualnogo the code on conformity of the Constitution of Belarus).

It is impossible to recognise such situation normal as in the current legislation about work of Belarus there are many norms entering into the contradiction with positions of the Constitution which are necessary for eliminating, including by means of the vigorous activity of the Constitutional Court (some examples were resulted above). Introduction of institute of the constitutional complaint existing in a number of foreign countries (including the Russian Federation) could become a possible variant of the decision of this problem. Besides, raises the doubts efficiency entered into item 22 of the Code of Byelorussia about the judicial organisation and the status of judges of [345] norms about the initiative reference of citizens and the citizen, including the individual businessman, the organisation as in essence it is a question of the reference of the given persons not directly in the Constitutional Court, and in the state bodies allocated with the right of the reference in the Constitutional Court.

As to the Constitutional Council of Republic Kazakhstan, the Constitutional vessels of Armenia and Kyrgyzstan labour zakonodatelstelstvo was object of the constitutional control only in insignificant number of decisions of the given bodies which some examples we will result in § 4 these heads of work.

At the same time and in cases when general jurisdiction courts on concrete dispute find out the obvious contradiction between the certificate of the legislation on work and the Constitution, there are no obstacles to direct application of norm of the Organic law (if the Supreme Court does not count expedient to address in the Constitutional Court with the petition for check of the certificate of the legislation on conformity of the Constitution).

Despite the numerous reference of attention the Constitutional Court of Byelorussia on necessity of direct (direct) application by vessels of norms of the Constitution, the decision of vessels extremely seldom are based on references to the Organic law and when references become, the constitutional norms are quite often applied with appreciable errors. So, on one of not numerous affairs the respondent, objecting to the claim, referred to item 41 and 49 Constitutions Byelorussia, two conventions ratified by Byelorussia the SQUANDERER, but court here an obvious divergence between norms of usual laws (at that time it there were laws «About formation» and «About higher education»), subordinate legislation NPA with norms of the Organic law and the ratified conventions the SQUANDERER [346] wrongly has not seen. Certainly, such pravoprimenitelnaja practice is hardly capable to provide leadership of the Constitution and mezhdunarodnopravovyh the obligations taken on by Byelorussia. In this connection pertinently to remind, that agree ч.2 item 112 of the Constitution of Belarus if by consideration of concrete business the court comes to conclusion about discrepancy of the normative act of the Constitution, it makes the decision according to the Constitution and brings an attention to the question when due hereunder about a recognition of the given normative act the unconstitutional.

We share B.S.Ebzeeva's position, that in the specified case «speech should go not about the right, and about a duty to address in the Constitutional Court with inquiry about check of constitutionality of this law» [347].

In the Belarus judiciary practice there are rare examples when general jurisdiction courts by consideration of labour disputes correctly directly apply norms

Constitutions at the permission of labour disputes [348]. At the same time till now there was no case of the reference in the Constitutional Court of Belarus through the Supreme Court with inquiry about constitutionality of this or that certificate of the legislation on work.

Positive role in maintenance of direct action of the Constitution the Decision of Plenum of the Supreme Court of the Russian Federation from 31.10.1995 № 8 «About some questions of application by vessels of the Constitution of the Russian Federation has played in due time at justice realisation» (with changes and additions) in which item 2 cases of direct application by vessels of norms the Constitutions connected with insufficiency of a regulation of the rights are explained, freedom, duties of the person and the citizen in federal acts, and also revealing or blank formation in legal regulation. In item 12 of the same Decision of Plenum of the Supreme Court some explanations concerning the application mechanism ch are made. 4 items 37 of the Constitution of the Russian Federation [349].

Interesting offers on addition TK the Russian Federation article «the Constitution of the Russian Federation containing basic principles and norms of the Russian law of master and servant» have been put forward by E.A.Ershovoj [350] though while they are not apprehended by the legislator.

According to V.I.Popova and M.S.Sagandykova, direct action of the Constitution it is possible, first, in case of the contradiction of rules of law of an equal validity when the constitutional positions are criterion for a choice of the rule of law; in - the second, at gaps in law and necessity of a concrete definition of rules of law [351].

We believe, as the Supreme Courts of Armenia, Belarus, Kazakhstan and Kyrgyzstan should develop and accept the similar standard decisions focusing courts of the general jurisdiction on possibility of direct application of norms of the Constitution first of all in cases probelnosti of those or other public relations, coming under to legal regulation (i.e. at application of analogy of the right), and also in the presence of obvious collisions TK, laws and nnyh NPA with the constitution.

In conclusion of the paragraph we will formulate the basic conclusions:

- It is necessary to specify legal definition of the legislation on work in item 1 TK of Belarus, having eliminated a tautology available in it;

- To the Russian legislator to apprehend the approach used in the national legislation of other member states EAES, concerning application of wider concept "legislation", having reflected it in the separate Federal act «On standard legal acts of the Russian Federation», and then in other laws, including and TK the Russian Federation;

- To formulate concept konstitutsionalizatsii, having fixed it in the Concept of perfection of the legislation of Byelorussia and in other program documents or others NPA member states EAES;

- To the legislator and another pravotvorcheskim to bodies to speed up work on labour legislation reduction in conformity with norms of the Constitution taking into account positions of the Constitutional Court (Council) and recommendations of scientists-lawyers (the legal doctrine);

- The majority of the constitutional norms (including norms-principles) in work sphere are the norms of the direct action which are coming under to direct application by vessels at detection of blanks and collisions in legal regulation of relations labour and directly connected with them;

- In Armenia, Belarus, Kazakhstan and Kyrgyzstan it is expedient to develop and accept decisions of Plenum of the Supreme Court «About maintenance of leadership and direct action of norms of the Constitution at justice realisation» (taking into account experience of the Russian Federation);

- General jurisdiction vessels at detection of the contradiction of norms of the legislation on work to the Organic law should address through the Supreme Court in the Constitutional Court about check of constitutionality corresponding NPA, and to a legal investigation in the Constitutional Court - directly to apply norms of the Constitution.

<< | >>
A source: TOMASHEVSKY Cyril Leonidovich. SYSTEM of SOURCES of the LAW OF MASTER AND SERVANT of MEMBER STATES EAES: the THEORY And PRACTICE. The dissertation on competition of a scientific degree of the doctor of juridical science. Moscow - 2017. 2017

More on topic § 1 Constitution as basis of system of sources of the law of master and servant:

  1. § 4 Concepts of system of sources of the law of master and servant and their classification
  2. § 1 Concepts of the international law of master and servant and system of its sources
  3. § 3. Research of questions of sources of the law of master and servant in a pre-revolutionary, Soviet and modern science of the law of master and servant
  4. § 5. The concept of triune system of sources of the law of master and servant
  5. CHAPTER 4 FORMATION NADNATSIONALNYH of SOURCES OF LAW And the WAY of HARMONIZATION of SYSTEMS of SOURCES of the LAW OF MASTER AND SERVANT To MEMBER STATES EAES
  6. Some aspects of legal influence of the state on the public relations entering into a subject of the law of master and servant, in formation of the law of master and servant in Russia
  7. § 3 Blanks in sources of the law of master and servant and the mechanism of their overcoming
  8. § 2 Collisions between sources of the law of master and servant and formation of a conflict legal mechanism in member states EAES
  9. TOMASHEVSKY Cyril Leonidovich. of SYSTEM of SOURCES of the LAW OF MASTER AND SERVANT of MEMBER STATES EAES: the THEORY And PRACTICE. The dissertation on competition of a scientific degree of the doctor of juridical science. Moscow -,
  10. CHAPTER 5 of the TENDENCY of DEVELOPMENT of SOURCES of the LAW OF MASTER AND SERVANT, the BRANCH MECHANISM of OVERCOMING of COLLISIONS And GAPS IN LAW
  11. § 1 Modern lines of development of sources of the law of master and servant of member states EAES
  12. § 4. Kinds and a parity with the national legislation nadnatsionalnyh sources of the law of master and servant in EAES
  13. § 3. Experience of harmonisation of the labour legislation and formation nadnatsionalnyh sources of the law of master and servant in the CIS and EvrAzES
  14. § 4 Certificates of the higher courts of justice as sources of the law of master and servant and a legal representation problem