In addition to Russian legislation, international legal norms are of great importance for the regulation of labor relations, which are developed on the basis of study, generalization and careful selection of the most valuable and universally significant national norms. The Constitution of the Russian Federation provides that generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system. Such international treaties include the Conventions of the International Labor Organization (ILO), which express its position on a wide range of social and labor problems and are international labor standards, i.e. norms, the mandatory application of which ensures the observance of fundamental rights and freedoms of citizens in the sphere of labor and their protection.
Labor law
A number of regulations on labor issues have been adopted by the Council of Europe (CoE). The content of labor relations is objectively determined by the level of development of the economy and the productive forces of society.
Modern labor law establishes minimum and threshold, procedural and procedural standards within the framework of which subjects of labor relations can determine their rights and obligations. But different standards in different countries can significantly affect the competitiveness of entrepreneurs using hired labor in the global market.
International labor regulation is a system of standards for the legal regulation of labor enshrined in international acts and agreements.
ILO Convention No. 158 on Termination of Employment at the Initiative of the Employer
When the Employer plans to terminate an employment relationship for reasons of an economic, technological, structural or similar nature, it: a) promptly provides relevant employee representatives with relevant information, including information on the reasons for the proposed terminations, the number and categories of employees who may be affected, and the period during which they will be produced; b) provide the opportunity as early as possible, in accordance with national law and practice; relevant workers' representatives to consult on measures to prevent or minimize layoffs and on measures to mitigate the adverse effects of any layoffs on the workers concerned, in particular such as the provision of alternative employment. 2.
International Labor Organization Conventions
Attention
For example, ILO Convention No. 158 on Termination of Employment is applicable, which places the burden on the employer to prove the existence of a legal basis for dismissing employees, and also does not allow termination of employment due to temporary incapacity. It is obvious that the rules of this Convention are designed to prevent discrimination when dismissing workers, including on the basis of their temporary disability.
The provisions of ILO Convention No. 173 on the protection of workers' claims in the event of the insolvency of an employer are also subject to application, guaranteeing priority satisfaction of the claims of workers in the event of the insolvency of the employer in comparison with other privileged claims, in particular, in comparison with the requirements of the state and the social insurance system.
Part 3. conventions of the international labor organization
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Worker representatives are provided with appropriate facilities within the enterprise to enable them to perform their functions quickly and efficiently. The requirements of Convention No. 135 are taken into account in the norms of the Labor Code and Article 25 of the Federal Law “On Trade Unions, Their Rights and Guarantees of Operations,” which is called “Guarantees for employees who are members of trade union bodies and are not released from their main jobs.”
The Labor Code also establishes additional guarantees for employee representatives: during the period of collective bargaining, a special regime is established for them to face disciplinary liability, change and terminate the employment contract at the initiative of the employer. Working time A number of ILO conventions deal with working time issues.
The main ILO conventions on labor market regulation
In addition to the issues discussed, the Convention on the Protection of Wages also provides for the protection of wages in the event of bankruptcy of an enterprise or its liquidation in court (Article 11). “The workers employed in the undertaking will enjoy the position of privileged creditors, either in respect of wages which they are to receive for services rendered during the period preceding the bankruptcy or liquidation, to be determined by national law, or in respect of wages the amount of which does not exceed amount prescribed by national legislation." In furtherance of these provisions, Convention No. 173 “On the Protection of Workers' Claims in the Event of the Insolvency of an Employer” was ratified in April 2012.
ILO conventions governing labor relations
Important
Therefore, the use of conscripts to perform work on civilian installations is the use of the labor of military personnel who did not volunteer to perform the duties associated with military service as a method of using labor for economic development needs. There is a violation of the provisions of the said Convention, which has a higher legal force than domestic legislation, which allows military personnel to be recruited to work on civilian sites.
Moreover, in Part 2 of Art. 2 of the ILO Convention No. 29 on forced or compulsory labor states that the labor of persons serving a sentence by a court sentence cannot be transferred to the disposal of private individuals, companies or societies.
ILO Labor Relations Convention
The Constitutional Court indicated that this provision limits the rights of the employer and gives trade union activists unjustified advantages over other employees. In this regard, the FNPR began active work on the urgent ratification of the 135th ILO Convention in order to subsequently restore protection against dismissal of trade union leaders in primary organizations. The Convention in question provides that the term "workers' representatives" means persons who are recognized as such in accordance with national law and practice. These are representatives of trade unions appointed or elected by trade unions or members of such trade unions, or elected representatives, namely representatives freely elected by the workers of the enterprise in accordance with the provisions of national legislation.
In accordance with Article 3 of the Convention, each ILO Member State that ratifies the Convention accepts obligations that provide for the protection of workers' claims by means of a franchise (Section II), or obligations that provide for the protection of workers' claims through guarantee institutions (Section III), or obligations arising from from both sections. The choice is indicated in the statement accompanying the ratification.
In this regard, the federal law on ratification includes the corresponding text of the statement. The current legislation of the Russian Federation establishes one of the mechanisms for protecting the labor rights of workers provided for by the Convention - a privilege when satisfying the claims of creditors.
The Constitutional Court found Part 4 of Art. to be inconsistent with the Constitution of the Russian Federation. 261 of the Labor Code of the Russian Federation as amended, limiting the rights of fathers. Considering the case of compliance with the Labor Code of the Russian Federation with the Constitution (part 4 of Art.
19 on equal rights, freedoms and opportunities for their implementation for men and women), the Court also took into account ILO Convention No. 156 and recognized the provisions of Part 4 of Art. 261 of the Labor Code of the Russian Federation do not comply with the Constitution “... to the extent that in the system of current legal regulation it, by prohibiting the dismissal at the initiative of the employer of women with children under three years of age, and other persons raising children of the specified age without a mother, excludes the possibility of using this guarantee to the father, who is the sole breadwinner in a large family raising young children, including a child under the age of three, where the mother is not in an employment relationship and is caring for the children.”
Article 10 of the Labor Code of the Russian Federation (LC RF), developing the meaning of this constitutional norm, is slightly modified: “if an international treaty of the Russian Federation establishes rules other than those provided for by labor legislation and other acts containing labor law norms (only laws are indicated in the Constitution), the rules of the international treaty apply.” The implementation of this provision means that the norms of international law should be considered as norms of direct action, which ILO CONVENTIONS AND RUSSIAN LABOR LAW should be applied by all government bodies, including courts.
When justifying their claims, both citizens and legal entities can refer to the norms of international law. ILO conventions, like other international treaties, acquire legal force after their ratification.
It is customary to classify them on various grounds, including the body that adopted them, legal force (mandatory and advisory), and scope of action (bilateral, local, general).
UN covenants and conventions are binding on all countries that ratify them. The International Labor Organization adopts two types of acts containing standards for the legal regulation of labor: conventions and recommendations. Convention are international agreements and are binding on countries that ratify them. If the convention is ratified, the state takes the necessary measures to implement it at the national level and regularly submits reports to the Organization on the effectiveness of such measures. According to the ILO Constitution, a state's ratification of a convention cannot affect national rules that are more favorable to workers. For unratified conventions, the Governing Body may request information from the state on the state of national legislation and practice in its application, as well as on measures to improve them that are proposed to be taken. Recommendations do not require ratification. These acts contain provisions that clarify, detail the provisions of the conventions, or a model for regulating social and labor relations.
At present, it has been decided to slightly modify the ILO approach to the creation of conventions in order to ensure greater flexibility of legal regulation. Framework conventions will be adopted containing minimum guarantees of workers' rights, supplemented by relevant annexes. One of the first such acts was Convention No. 183 “Revising the Maternity Protection Convention (Revised), 1952.” A number of important provisions on maternity protection are contained in the relevant Recommendation. This approach makes it possible to encourage countries with an insufficient level of protection of social and labor rights to ratify this Convention and thereby ensure the minimum guarantees enshrined in it. Some developing countries fear that ratification of ILO conventions will place undue burden on employers. For economically more developed countries, these conventions set guidelines for increasing the level of guarantees. A study of the ILO's experience shows that states do not ratify certain conventions for various reasons, including in cases where at the national level, legislation or practice already provides a higher level of protection of workers' rights.
Main directions of international legal regulation of labor
The International Labor Organization is actively rule-making activities. During its existence, 188 conventions and 200 recommendations were adopted.
Eight ILO conventions are considered fundamental. They enshrine the basic principles of legal regulation of labor. These are the following conventions.
Convention No. 87 on Freedom of Association and Protection of the Right to Organize (1948), Convention No. 98 Concerning the Application of the Principles of the Right to Organize and Collective Bargaining (1949) establish the right of all workers and employers without prior permission create and join organizations. State authorities must not limit this right or interfere with its exercise. Measures are provided to protect the right to freedom of association, to protect trade unions from discrimination, as well as workers' and entrepreneurs' organizations from interference in each other's affairs.
Convention No. 29 Relating to Forced or Compulsory Labor (1930) requires the abolition of forced or compulsory labor in all its forms. Forced or compulsory labor means any work or service that is required of a person under threat of punishment and for which that person has not offered his or her services voluntarily. A list of works that are not included in the concept of forced or compulsory work has been determined.
Convention No. 105 “Abolition of Forced Labor” (1957) strengthens the requirements and establishes the obligations of states not to resort to any form of it as:
- means of political influence or education or as a measure of punishment for the presence or expression of political views or ideological beliefs contrary to the established political, social or economic system;
- method of mobilizing and using labor for economic development;
- means of maintaining labor discipline;
- means of punishment for participation in strikes;
- measures of discrimination based on race, social and national origin or religion.
Convention No. 111 Relating to Discrimination (Employment and Occupation) (1958) recognizes the need for national policies aimed at eliminating discrimination in employment and training on the grounds of race, colour, sex, religion, political opinion, national or social origin .
Convention No. 100 Concerning Equal Remuneration for Men and Women for Work of Equal Value (1951) requires States to promote and ensure the implementation of the principle of equal remuneration for men and women for work of equal value. This principle may be applied by national legislation, any system of determining remuneration established or recognized by law, collective agreements between employers and workers, or a combination of various methods. To this end, it is also envisaged to take measures to facilitate an objective assessment of the work performed based on the labor expended. The Convention deals with the issue of basic wages and other remuneration provided directly or indirectly in money or in kind by the employer to the worker by virtue of the latter's performance of certain work. It defines equal remuneration for work of equal value as remuneration determined without discrimination on the basis of sex.
Convention No. 138 on the Minimum Age for Admission to Employment (1973) was adopted to eliminate child labor. The minimum age for employment should not be lower than the age of completion of compulsory education.
Convention No. 182 on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor (1999) obliges states to immediately take effective measures to prohibit and eliminate the worst forms of child labor. The purposeful activities of the ILO over the past two decades, as well as the adoption of the 1944 Declaration, have contributed to an increase in the number of ratifications of these conventions.
Four more conventions are considered priority by the ILO:
- No. 81 "On Labor Inspection in Industry and Commerce" (1947) - establishes the obligation of states to have a system of labor inspection in industrial enterprises to ensure the application of legal provisions relating to working conditions and the protection of workers in the course of their work. It defines the principles of organization and activities of inspections, the powers and responsibilities of inspectors;
- No. 129 “On Labor Inspection in Agriculture” (1969) - based on the provisions of Convention No. 81, formulates provisions on labor inspection taking into account the specifics of agricultural production;
- No. 122 “On Employment Policy” (1964) - provides for the implementation by ratifying states of an active policy to promote full, productive and freely chosen employment;
- No. 144, Tripartite Consultation to Promote the Application of International Labor Standards (1976), provides for tripartite consultation between representatives of government, employers and workers at the national level on the development, adoption and application of ILO conventions and recommendations.
In general, we can highlight the following main directions of legal regulation ILO:
- fundamental human rights;
- employment;
- social politics;
- regulation of labor issues;
- labor relations and working conditions;
- social Security;
- legal regulation of the labor of certain categories of workers (particular attention is paid to the prohibition of child labor, labor protection for women; a significant number of acts are devoted to the regulation of the labor of sailors, fishermen and some other categories of workers).
The adoption of new generation conventions is due to a significant number of ILO acts and the urgent need to adapt the standards they contain to modern conditions. They represent a kind of systematization of international legal regulation of labor in a certain area.
Throughout its history, the ILO has paid significant attention to the regulation of the labor of seafarers and workers in the fishing sector. This is due to the nature and working conditions of these categories of persons, which especially require the development of international standards of legal regulation. About 40 conventions and 29 recommendations are devoted to the issues of regulating the labor of seafarers. In these areas, first of all, new generation IG conventions were developed: “Labor in Maritime Shipping” (2006) and “On Labor in the Fishing Sector” (2007). These conventions should provide a qualitatively new level of protection of the social and labor rights of these categories of workers.
The same work has been carried out in relation to labor protection standards - we are talking about ILO Convention No. 187 “On the principles promoting occupational safety and health” (2006), supplemented by the corresponding Recommendation. The Convention stipulates that a state that has ratified it shall promote the continuous improvement of occupational safety and health in order to prevent cases of occupational injuries, occupational diseases and deaths at work. To this end, policies, systems and programs are developed in consultation with the most representative employers' and workers' organizations at the national level.
The National Safety and Hygiene System includes:
- regulations, collective agreements and other relevant instruments on occupational safety and health;
- activities of the body or department responsible for occupational safety and health issues;
- mechanisms to ensure compliance with national laws and regulations, including inspection systems;
- measures aimed at ensuring cooperation at the enterprise level between its management, employees and their representatives as a basic element of preventive measures at work.
The Recommendation on the Framework for Promoting Occupational Safety and Health complements the provisions of the Convention and is aimed at facilitating the development and adoption of new instruments and the international exchange of information in the field of occupational safety and health.
In the sphere of labor relations regulation, conventions on termination of employment and wage protection are of great importance. ILO Convention No. 158 on Employment Termination (1982) was adopted to protect workers from termination of employment without legal grounds. The Convention establishes the requirement of justification - there must be a legal basis related to the abilities or behavior of the worker or caused by production necessity. It also lists reasons that are not legal grounds for termination of employment, including: membership in a union or participation in union activities; intention to become a workers' representative; acting as a representative of breastfeeding women; filing a complaint or participating in a case brought against an entrepreneur on charges of violating the law; discriminatory grounds - race, color, sex, marital status, family responsibilities, pregnancy, religion, political opinion, nationality or social origin; absence from work while on maternity leave; temporary absence from work due to illness or injury.
The Convention sets out both the procedures to be followed before and during the termination of an employment relationship and the procedure for appealing a decision to dismiss. The burden of proving the existence of a legal basis for dismissal rests with the employer.
The Convention provides for the right of the employee to be given reasonable notice of the planned termination of the employment relationship or the right to monetary compensation in lieu of notice if he has not committed a serious misconduct; the right to severance pay and/or other types of income protection (benefits from the unemployment insurance fund, unemployment funds or other forms of social security). In case of unjustified dismissal, the impossibility of canceling the decision on dismissal and reinstating the worker to his previous job, payment of appropriate compensation or other benefits is expected. In the event of termination of the employment relationship for economic, technological, structural or similar reasons, the employer is obliged to inform the employees and their representatives, as well as the relevant government agency, about this. States at the national level may impose certain restrictions on mass layoffs.
ILO Convention No. 95 “On the Protection of Wages” (1949) contains a significant number of rules aimed at protecting the interests of workers: on the form of payment of wages, on the limitation of payment of wages in kind, on the prohibition of entrepreneurs from limiting the freedom to dispose of their wages according to at its discretion and a number of other important provisions. In Art. 11 of this Convention stipulates that in the event of bankruptcy of an enterprise or its liquidation in court, workers will enjoy the position of privileged creditors.
The International Labor Organization also adopted Convention No. 131 “On the Establishment of Minimum Wages with Special Consideration to Developing Countries” (1970). In accordance with it, states undertake to introduce a minimum wage system covering all groups of employees whose working conditions make the application of such a system appropriate. The minimum wage under this Convention “shall have the force of law and shall not be reduced.” When determining the minimum wage, the following factors are taken into account:
- the needs of workers and their families, taking into account the general level of wages in the country, the cost of living, social benefits and the comparative standard of living of other social groups;
- economic considerations, including economic development requirements, productivity levels, and the desirability of achieving and maintaining high levels of employment. To ensure the effective implementation of all minimum wage provisions, appropriate measures such as proper inspection, supplemented by other necessary measures, are taken.
List of ILO conventions in force in the Russian Federation
1. Convention No. 11 “On the right of organization and association of workers in agriculture” (1921).
2. Convention No. 13 “On the use of white lead in painting” (1921).
3. Convention No. 14 “On weekly rest in industrial undertakings” (1921).
4. Convention No. 16 “On the compulsory medical examination of children and young people employed on board ships” (1921).
5. Convention No. 23 “On the Repatriation of Seafarers” (1926).
6. Convention No. 27 “On the Indication of the Weight of Heavy Goods Carried on Ships” (1929).
7. Convention No. 29 “Forced or Compulsory Labor” (1930).
8. Convention No. 32 “On the protection against accidents of workers engaged in loading or unloading ships” (1932).
9. Convention No. 45 “On the Employment of Women in Underground Work in Mines” (1935).
10. Convention No. 47 “On the reduction of working time to forty hours a week” (1935).
11. Convention No. 52 “On annual holidays with pay” (1936).
12. Convention No. 69 “On the issuance of certificates of competency for ship's cooks” (1946).
13. Convention No. 73 “On the Medical Examination of Seafarers” (1946).
14. Convention No. 77 “On the medical examination of children and adolescents with a view to ascertaining their suitability for work in industry” (1946).
15. Convention No. 78 “On the Medical Examination of Children and Young Persons for the Purpose of Determining Their Fitness for Non-Industrial Work” (1946).
16. Convention No. 79 “On the Medical Examination of Children and Young Persons for the Purpose of Determining Their Fitness for Work” (1946).
17. Convention No. 87 “On Freedom of Association and Protection of the Rights to Organize” (1948).
18. Convention No. 90 on Night Work by Young Persons in Industry (revised 1948).
19. Convention No. 92 on Accommodation for Crews on Board Ships (revised 1949).
20. Convention No. 95 “On the Protection of Wages” (1949).
21. Convention No. 98 “On the Application of the Principles of the Right to Organize and to Collective Bargaining” (1949).
22. Convention No. 100 “On equal remuneration for men and women for work of equal value” (1951).
23. Maternity Protection Convention No. 103 (1952).
24. Convention No. 106 “On weekly rest in commerce and institutions” (1957).
25. Convention No. 108 “National Identity Document for Seafarers” (1958).
26. Convention No. 111 on Discrimination (Employment and Occupation) (1958).
27. Convention No. 113 “Medical Examination of Seafarers” (1959).
28. Convention No. 115 “On the Protection of Workers from Ionizing Radiation” (1960).
29. Convention No. 116 “On the Partial Revision of Conventions” (1961).
30. Convention No. 119 “On the provision of protective devices for machinery” (1963).
31. Convention No. 120 “On Hygiene in Commerce and Establishments” (1964).
32. Employment Policy Convention No. 122 (1964).
33. Convention No. 124 “On the Medical Examination of Young Persons for the Purpose of Determining Their Fitness for Work in Underground Work in Mines and Mines” (1965).
34. Convention No. 126 on Crew Accommodation on Board Fishing Vessels (1966).
35. Convention No. 133 “On accommodation for crew on board ships”. Additional Provisions (1970).
36. Convention No. 134 “On the Prevention of Occupational Accidents among Seafarers” (1970).
37. Minimum Age Convention No. 138 (1973).
38. Convention No. 142 “On Vocational Guidance and Training in the Field of Human Resources Development”.
39. Convention No. 147 “Minimum Standards on Merchant Ships” (1976).
40. Convention No. 148 “On the protection of workers against occupational hazards caused by air pollution, noise and vibration at work” (1977).
41. Convention No. 149 “On the employment and working and living conditions of nursing personnel” (1977).
42. Convention No. 159 “On Vocational Rehabilitation and Employment of Persons with Disabilities” (1983).
43. Labor Statistics Convention No. 160 (1985).
The General Conference of the International Labor Organization, convened at Geneva by the Governing Body of the International Labor Office and meeting at its sixty-eighth session on 2 June 1982, Noting the existing international standards contained in the Termination of Employment Recommendation, 1963, Noting that since the adoption of the Recommendation 1963 on termination of employment relations, there have been significant changes in the legislation and practice of many Members of the Organization on the issues set out in the said Recommendation, considering that these changes made it appropriate to adopt new international standards on this subject, taking into account, in particular, the serious problems in this area , caused by economic difficulties and technological changes that have occurred in recent years in many countries, having decided to adopt a number of proposals on termination of employment at the initiative of the employer, which is the fifth item on the agenda of the session, having decided to give these proposals the form of an international convention, adopts this twenty-second day June one thousand nine hundred and eighty-two the following Convention, which may be cited as the Termination of Employment Convention, 1982.
SECTION I. METHODS, SCOPE AND DEFINITIONS
Article 1
The provisions of this Convention shall be applied by law or regulation unless they are applied by means of collective agreements, decisions of arbitral or judicial bodies or in any other manner consistent with national practice.
Article 2
1. This Convention applies to all branches of economic activity and to all employees.
2. A Member may exclude from the application of all or some of the provisions of this Convention the following categories of employees:
a) workers hired under a contract of employment for a specific period or to perform a specific job;
b) employees undergoing a probationary period or acquiring the necessary length of service, determined in advance and of a reasonable duration;
c) workers hired for a short period of time to perform casual work.
3. Adequate safeguards shall be provided against the use of fixed-term employment contracts whose purpose is to evade the protection provided for by this Convention.
4. To the extent necessary, measures may be taken by the competent authority or appropriate agency in each country, in consultation with the employers' and workers' organizations concerned, where they exist, to exclude from the application of the Convention or certain provisions thereof such categories of workers for the employment of persons whose terms of employment are governed by special agreements providing generally for protection equivalent to the protection provided for in this Convention.
5. To the extent necessary, measures may be taken by the competent authority or appropriate agency in each country, in consultation with the employers' and workers' organizations concerned, where they exist, to exclude from the application of the Convention or certain provisions thereof other limited categories of workers for the employment of persons in respect of whom particular problems arise which are of significant importance in the light of the particular conditions of employment of the workers concerned or the size or nature of the enterprise in which they are employed.
6. Each Member ratifying this Convention shall, in the first report on its application submitted under Article 22 of the Constitution of the International Labor Organization, list any categories which may have been excluded in accordance with paragraphs 4 and 5 of this Article, indicating the reasons for such exclusion, and In subsequent reports, it reports on the state of its legislation and practice relating to excluded categories and the extent to which the Convention has been implemented or is expected to be implemented in relation to such categories.
Article 3
For the purposes of this Convention, the terms “dismissal” and “termination of employment” mean the termination of an employment relationship at the initiative of the employer.
SECTION II. STANDARDS FOR GENERAL APPLICATION
Subsection A. JUSTIFICATION FOR TERMINATION OF EMPLOYMENT RELATIONS
Article 4
Labor relations with employees are not terminated unless there are legal grounds for such termination related to the abilities or behavior of the employee or caused by the production needs of the enterprise, institution or service.
Article 5
The following reasons are not, in particular, legal grounds for termination of employment:
a) membership in a trade union or participation in trade union activities outside working hours or, with the consent of the employer, during working hours;
b) intention to become a workers' representative, current or past performance of the functions of a workers' representative;
c) filing a complaint or participating in a case brought against the employer for alleged violation of laws or regulations or contacting the competent administrative authorities;
d) race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinions, nationality or social origin;
e) absence from work during maternity leave.
Article 6
1. Temporary absence from work due to illness or injury is not a legal basis for dismissal.
2. The determination of what constitutes temporary absence from work, the extent to which a medical certificate is required and possible limitations on the application of paragraph 1 of this article are determined by the methods specified in article 1 of this Convention.
SUBCHAPTER B. PROCEDURES APPLICABLE BEFORE OR DURING TERMINATION OF EMPLOYMENT
Article 7
An employee's employment does not terminate for reasons related to his conduct or performance until he is given the opportunity to defend himself in connection with the charges against him, unless the employer cannot reasonably be expected to provide the employee with such an opportunity.
Subsection C. PROCEDURE FOR APPEALING A DECISION ON TERMINATION OF EMPLOYMENT RELATIONS
Article 8
1. An employee who believes that he has been unfairly dismissed has the right to appeal the decision to an impartial body such as a court, employment tribunal, arbitration committee or arbitrator.
2. In cases where the termination of employment has been authorized by the competent authority, paragraph 1 of this article may be applied subject to national law and practice.
Article 9
1. The bodies referred to in Article 8 of this Convention are empowered to consider the reasons for dismissal and other circumstances of the case, as well as to make a decision on the justification of dismissal.
2. To ensure that the burden of proving the unjustification of dismissal does not rest solely on the employee, the methods specified in Article 1 of this Convention provide for the first or second or both of the following options:
a) the burden of proving the existence of a lawful basis for dismissal as defined in article 4 of this Convention lies with the employer;
(b) the authorities referred to in Article 8 of this Convention are empowered to decide on the reason for dismissal, taking into account the evidence presented by the parties and in accordance with the procedures provided for by national law and practice.
3. In cases of dismissal for reasons caused by the production needs of the enterprise, institution or service, the bodies referred to in Article 8 of this Convention are vested with the power to determine whether the employment relationship has been terminated for these reasons, but the limits of their power to decide whether these reasons sufficiently justified for termination of the employment relationship are determined by the methods of implementation specified in Article 1 of this Convention.
Article 10
If the authorities referred to in Article 8 of this Convention determine that the dismissal is unjustified and if, in accordance with national law and practice, they do not have the power or do not consider it practicable to reverse the decision on dismissal and/or order or propose the reinstatement of the worker to his former employment, they vested with the power to order the payment of appropriate compensation or such other benefit as may be considered appropriate.
SUBSECTION D. WARNING TERM OF TERMINATION
Article 11
An employee whose employment is to be terminated has the right to be given reasonable notice, or has the right to monetary compensation in lieu of notice, unless he has committed serious misconduct, that is, such misconduct for which it would be unreasonable to require the employer to continue labor relations with him during the notice period.
Subsection E. TERMINATION PAY AND OTHER TYPES OF INCOME PROTECTION
Article 12
1. A worker whose employment relationship has been terminated has the right, in accordance with national law and practice, to:
a) severance pay or other similar types of benefits in connection with the termination of employment, the amount of which depends, in particular, on length of service and the level of salary and which are paid directly by the employer or from a fund created from contributions from employers;
b) benefits from unemployment insurance funds, unemployment funds or other forms of social security such as old age or disability benefits, paid on the general basis conferring entitlement to these benefits;
c) a combination of such benefits and payments.
2. An employee who does not meet the necessary conditions for receiving benefits from the unemployment insurance fund or unemployment assistance funds on a general basis shall not be paid any of the benefits or payments specified in subparagraph 1 a of this article solely for the reason that he does not receive unemployment benefits according to subparagraph 1 b.
3. The methods of application specified in article 1 of this Convention may provide for the deprivation of the right to benefits or payments referred to in subparagraph 1 (a) of this article in the event of dismissal for serious misconduct.
SECTION III. ADDITIONAL PROVISIONS REGARDING TERMINATION OF EMPLOYMENT FOR ECONOMIC, TECHNOLOGICAL, STRUCTURAL OR SIMILAR REASONS SUB-SECTION A. CONSULTATION WITH EMPLOYER REPRESENTATIVES
Article 13
1. When the Employer plans to terminate the employment relationship for reasons of an economic, technological, structural or similar nature, he:
a) provide relevant workers' representatives with timely information regarding the matter, including information on the reasons for the proposed dismissals, the number and categories of workers who may be affected and the period within which they will take place;
b) provide the opportunity as early as possible, in accordance with national law and practice; relevant workers' representatives to consult on measures to prevent or minimize layoffs and on measures to mitigate the adverse effects of any layoffs on the workers concerned, in particular such as the provision of alternative employment.
2. By the methods provided for in Article 1 of this Convention, the application of paragraph 1 of this Article may be limited to cases where the number of employees planned to be dismissed amounts to at least a certain number or percentage of employees.
3. For the purposes of this article, the term “relevant workers' representatives” means workers' representatives recognized as such by national law or practice in accordance with the Workers' Representatives Convention 1971.
Subsection B. COMMUNICATION TO THE COMPETENT AUTHORITY
Article 14
1. When the Employer plans to effect dismissal for reasons of an economic, technological, structural or similar nature, he shall, in accordance with national law and practice, notify the competent authority as early as possible, providing it with relevant information, including a written statement of the reasons for the dismissal, the number and categories of employees, whom it may affect, and the period during which it is scheduled to be implemented.
2. National laws or regulations may limit the application of paragraph 1 of this article to cases where the number of employees planned to be dismissed amounts to at least a certain number or percentage of employees.
3. The employer shall notify the competent authority of the dismissal referred to in paragraph 1 of this article within the minimum period prior to its implementation as determined by national laws or regulations.
SECTION IV. FINAL PROVISIONS
Article 15
Official instruments of ratification of this Convention shall be sent to the Director General of the International Labor Office for registration.
Article 16
1. This Convention binds only those Members of the International Labor Organization whose instruments of ratification have been registered by the Director General.
2. It will come into force twelve months after the date of registration by the Director General of the instruments of ratification of two Members of the Organization.
3. Thereafter, this Convention shall enter into force for each Member of the Organization twelve months after the date of registration of its instrument of ratification.
Article 17
1. Each Member which has ratified this Convention may, after the expiration of ten years from the date of its initial entry into force, denounce it by means of an act of denunciation addressed to the Director-General of the International Labor Office for registration. The denunciation takes effect one year after the date of registration of the act of denunciation.
2. For each Member of the Organization which has ratified this Convention and, within the period of one year following the expiration of the ten years specified in the previous paragraph, has not exercised the right of denunciation provided for in this article, the Convention shall remain in force for a further period of ten years and thereafter it may denounce it by at the end of each decade in the manner provided for in this article.
Article 18
1. The Director General of the International Labor Office shall notify all Members of the International Labor Organization of the registration of all instruments of ratification and denunciation sent to him by Members of the Organization.
2. When notifying Members of the Organization of the registration of the second instrument of ratification received by it, the Director General shall draw their attention to the date of entry into force of this Convention.
Article 19
The Director-General of the International Labor Office shall transmit to the Secretary-General of the United Nations, for registration in accordance with Article 102 of the Charter of the United Nations, full particulars of all instruments of ratification and denunciation registered by him in accordance with the provisions of the preceding Articles.
Article 20
Whenever the Governing Body of the International Labor Office considers it necessary, it shall submit a report to the General Conference on the application of this Convention and shall consider the advisability of including on the agenda of the Conference the question of its complete or partial revision.
Article 21
1. If the Conference adopts a new convention revising this Convention in whole or in part, and unless the new convention otherwise provides, then:
(a) the ratification by any Member of the Organization of a new revising Convention shall automatically entail, notwithstanding the provisions of Article 17, the immediate denunciation of this Convention, provided that the new revising Convention has entered into force;
b) from the date of entry into force of the new, revising convention, this Convention is closed for ratification by Members of the Organization.
2. This Convention shall remain in force in all cases in form and content for those Members of the Organization which have ratified it but have not ratified the revising convention.
Article 22
The English and French texts of this Convention are equally authentic.
ILO conventions are also sources of labor law that are directly applicable in regulating labor relations. For example, in paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” reference is made to paragraph 1 of Art. 1 of Convention No. 29 on forced or compulsory labor.
When regulating labor relations, ILO conventions that are ratified by our state are subject to application.
The following ILO conventions have currently been ratified:
1) Convention No. 10 on the minimum age for admission of children to work in agriculture;
2) Convention No. 11 on the right of association and association of workers in agriculture;
3) Convention No. 13 on the use of white in painting;
4) Convention No. 14 on weekly rest in industrial enterprises;
5) Convention No. 15 on the minimum age for admission of adolescents to work as coal loaders or stokers in the navy;
6) Convention No. 16 on compulsory medical examination of children and adolescents employed on board ships;
7) Convention No. 23 on the Repatriation of Seafarers;
8) Convention No. 27 concerning the indication of the weight of heavy cargo carried on ships;
9) Convention No. 29 on forced or compulsory labor;
10) Convention No. 32 concerning the protection against accidents of workers engaged in loading and unloading ships;
11) Convention No. 45 concerning the employment of women in underground work in mines of any kind;
12) Convention No. 47 on the reduction of working time to forty hours a week;
13) Convention No. 52 on annual paid holidays;
14) Convention No. 58 on the minimum age for admission of children to work at sea;
15) Convention No. 59 on the minimum age for the admission of children to work in industry;
16) Convention No. 60 on the age of admission of children to non-industrial work;
17) Convention No. 69 concerning the issuance of certificates of qualification to ships' cooks;
18) Convention No. 73 concerning the medical examination of seafarers;
19) Convention No. 77 on the medical examination of children and adolescents to determine their suitability for work in industry;
20) Convention No. 78 on the medical examination of children and adolescents to determine their suitability for industrial work;
21) Convention No. 79 on the limitation of night work of children and adolescents in non-industrial work;
22) Convention No. 81 concerning labor inspection in industry and commerce;
23) Convention No. 87 on freedom of association and protection of the right to organize;
24) Convention No. 90 on night work by adolescents in industry;
25) Convention No. 92 on accommodation for crew on board ships;
26) Convention No. 95 on the Protection of Wages;
27) Convention No. 98 on the Application of the Principles of the Right to Organize and to Collective Bargaining;
28) Convention No. 100 on equal remuneration for men and women for work of equal value;
29) Convention No. 103 on Maternity Protection;
30) Convention No. 105 on the Abolition of Forced Labour;
31) Convention No. 106 on weekly rest in commerce and institutions;
32) Convention No. 103 on National Identity Documents for Seafarers;
33) Convention No. 111 on discrimination in employment and occupation;
34) Convention No. 112 on the minimum age for employment of seafarers;
35) Convention No. 113 on the medical examination of fishermen;
36) Convention No. 115 for the Protection of Workers from Ionizing Radiation;
37) Convention No. 119 on the provision of protective devices for machinery;
38) Convention No. 120 on Hygiene in Commerce and Industry;
39) Convention No. 122 on Employment Policy;
40) Convention No. 123 on the minimum age of admission to underground work in mines and mines;
41) Convention No. 124 on the medical examination of young people to determine their suitability for work in underground work in mines and mines;
42) Convention No. 126 on crew accommodation on board fishing vessels;
43) Convention No. 133 on accommodation for crew on board ships;
44) Convention No. 134 for the Prevention of Occupational Accidents among Seafarers;
45) Convention No. 138 on the minimum age for employment;
46) Convention No. 142 on vocational guidance and training in the field of human resource development;
47) Convention No. 147 on minimum standards on merchant ships;
48) Convention No. 148 for the protection of workers against occupational hazards caused by air pollution, noise and vibration in the workplace;
49) Convention No. 149 on the employment and working and living conditions of nursing personnel;
50) Labor Administration Convention No. 150: role, functions and organization;
51) Convention No. 155 on occupational safety and health and the working environment;
52) Convention No. 159 on Vocational Rehabilitation and Employment of Persons with Disabilities;
53) Convention No. 160 on Labor Statistics; 54) Convention No. 156 concerning workers with family responsibilities;
55) Convention No. 116 concerning the partial revision of ILO conventions;
56) Convention No. 162 on occupational safety and health in the use of asbestos;
57) Convention No. 179 concerning the recruitment and placement of seafarers;
59) Convention No. 137 on the social consequences of new methods of cargo handling in ports;
60) Convention No. 152 on occupational safety and health in port work.
The standards of the listed ILO Conventions are subject to application in regulating labor relations. However, it should be remembered that they can only be applied to relations that arose after the entry into force of the Constitution of the Russian Federation, adopted on December 12, 1993. Until this point, the provisions of ILO conventions were not directly applied in the regulation of labor relations.
These provisions could only be applied after their inclusion in domestic legislation. Currently, on the basis of Part 4 of Art. 15 of the Constitution of the Russian Federation, the rules of ILO conventions must be directly applied when regulating relations within the scope of labor law. This does not require repetition of the provisions of ILO conventions in domestic legislation. Although, before the Constitution of the Russian Federation comes into force, only the provisions of ILO conventions that have been reproduced in the norms of Russian legislation can be applied.
Other provisions of the ILO conventions were not applied before the specified date. For example, ILO Convention No. 47 concerning the reduction of working time to forty hours a week (1935), ratified on June 4, 1956. However, until October 7, 1992, that is, before the amendments made to the Labor Code of the Russian Federation on September 25, 1992 came into force, a working week of 41 hours was established in our state. In this regard, workers in the period from June 4, 1956 to October 7, 1992 worked in excess of the norm established by ILO Convention No. 47 on the reduction of working hours to forty hours a week, one hour each week. However, this processing did not contradict domestic legislation.
The norms of ILO conventions were not directly applied at that time, therefore, workers’ demands for increased payment for hours worked in excess of the standard hours established by the said Convention, that is, for recognition of their overtime work, cannot be satisfied.
However, after the adoption of the Constitution of the Russian Federation, the provisions of the ILO conventions are subject to direct application. In this connection, if there are contradictions between a rule included in the ILO convention and the provisions of domestic legislation, the norms of international legal regulation of labor are subject to application.
For example, currently, based on domestic legislation, the labor of military personnel is used on civilian sites. Although in Art. 1 of ILO Convention No. 105 on the Abolition of Forced Labor states that the state undertakes not to use forced or compulsory labor as a method of mobilizing and using labor for the needs of economic development.
A serviceman cannot refuse to perform the work assigned to him by his command, since while in service he performs duties for which he did not voluntarily offer his services. Therefore, the use of conscripts to perform work on civilian installations is the use of the labor of military personnel who did not volunteer to perform the duties associated with military service as a method of using labor for economic development needs.
There is a violation of the provisions of the said Convention, which has a higher legal force than domestic legislation, which allows military personnel to be recruited to work on civilian sites. Moreover, in Part 2 of Art. 2 of the ILO Convention No. 29 on forced or compulsory labor states that the labor of persons serving a sentence by a court sentence cannot be transferred to the disposal of private individuals, companies or societies.
This rule applies by analogy to the work of military personnel called up for military service, who must perform the duties of military service and not create profit for private individuals. Based on the above-mentioned ILO Conventions, persons illegally involved in forced labor may demand restoration of the violated right, as well as compensation for moral damage caused, since in the case under consideration their intangible right to freely dispose of their abilities to work and not to be involved in the performance of work is violated. whom they did not voluntarily offer their services.
Thus, the listed ratified ILO Conventions are subject to application in regulating labor relations; they are also subject to application in cases where the norms of Russian legislation conflict with their requirements.
However, not only ratified ILO conventions are subject to application on the territory of the Russian Federation. Currently, the ILO Declaration on Fundamental Principles and Rights at Work of June 18, 1998 is in force, which was published for official application (Rossiyskaya Gazeta, December 16, 1998).
Paragraph 2 of the said Declaration states that all ILO member states, even if they have not ratified the relevant ILO conventions, have obligations arising from the very fact of their membership in the ILO to observe, promote and implement the principles relating to the fundamental rights that are the subject of these conventions.
Among these principles the Declaration includes:
1) freedom of association and effective recognition of the right to collective bargaining;
2) abolition of all forms of forced or compulsory labor;
3) effective prohibition of child labor; 4) non-discrimination in the field of work and occupation.
In this connection, we can conclude that on the territory of the Russian Federation not only ratified ILO conventions should be applied, but also unratified ILO conventions that contain rules that ensure the implementation of the listed principles.
The following legally significant circumstances arise from the ILO Declaration on Fundamental Principles and Rights at Work, the presence of which entails the obligation of law enforcement officials to apply unratified ILO conventions.
Firstly, such a circumstance is the presence of an ILO convention, which contains in its content a certain rule of conduct.
Secondly, these circumstances include the presence of a direct connection between the rules of conduct contained in the convention and the implementation of the listed principles.
Thirdly, such a circumstance should be called a violation of the listed principles in labor regulation due to failure to comply with the rules of conduct contained in the content of an unratified ILO convention.
Almost every ILO convention contains provisions that are aimed at ensuring the principle of non-discrimination in employment and occupation. In this connection, they can be used in regulating labor relations. For example, ILO Convention No. 158 on termination of employment is applicable, which places the burden on the employer to prove the existence of a legal basis for dismissing employees, and also does not allow termination of employment due to temporary disability.
It is obvious that the rules of this Convention are designed to prevent discrimination when dismissing workers, including on the basis of their temporary disability. The provisions of ILO Convention No. 173 on the protection of workers' claims in the event of the insolvency of an employer are also subject to application, guaranteeing priority satisfaction of the claims of workers in the event of the insolvency of the employer in comparison with other privileged claims, in particular, in comparison with the requirements of the state and the social insurance system.
The rules of this Convention are also intended to prevent discrimination in the rights of employees compared to other creditors of the employer in the event of its insolvency.
Thus, on the territory of the Russian Federation, the norms of not only ratified ILO conventions should be applied, but also the provisions of unratified ILO conventions, which are aimed at implementing the fundamental principles and rights at work, which are defined as such by the ILO Declaration on Fundamental Principles and Rights at Work .
Textbook "Labor Law of Russia" Mironov V.I.
- Labor law