SOME QUESTIONS OF EXTENDING THE SCOPE OF LABOUR LAW

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SOME QUESTIONS OF EXTENDING THE SCOPE OF LABOUR LAW

Journal Title: «Приватне та публічне право» - Year 2017, Vol 1, Issue

Abstract

The aim of this publication is to analyze the prerequisites for extending the scope of labour law and its transformation taking into account modern concepts of protection of parties’ rights in social and labor relations. According to the author, the nature of labour relations is guided bya dual tendency: the labour relations should ensure the subordination of workers to existing atan enterprise, institution, or organization rules and directly to the employer, on the other hand, provide a degree of cooperation between employers and employees through which the optimum labour organization rules should be created. There fore, consideration of individual and collective relations in the context of the subject of the labour law exclusively according to the logic of primary and secondary actually results in the fact that secondary becomes an important component related to the social dialogue on two-parties (the employer (s), employee (s)) or three-parties (the employer (s), employee (s), the state) basis. After all, the social dialogue is a guarantee of social and labour rights and freedoms, limiting groundless encroachment on the rights of parties to the labour relations. This dispute has a reason to be associated with a certain philosophical discussion what comes first the chicken or the egg. After all, as a rule, individual employment relationships arise on the basis of already achieved results of a social dialogue. These achievements are of a direct or indirect nature. Thus, the direct nature refers to cases where an immediate employer enters into a collective agreement with the workforce representatives. In direct, when the achieved social agreements are used and indirectly affect the employer, since the latter did not participate in collective bargaining, did not enter into a collective agreement, but the society has formed certain social rules of conduct that cannot be/are difficult to break. Thus, the individual labour relations arise on the basis of the existing social and labour agreement of a collective nature, and therefore it becomes somewhat arbitrary to apply the “primary” category to the individual labour relations. From another point of view, the presence of individual labour relations is the beginning of direct relations between employer and employee. All other relations, including collective are of secondary importance, since they only provide the activity of primary relations. This approach has its own logic, but there is an important point to which we should pay attention. In particular, the contractual relations involve at least relative equality of the parties. It is hard to imagine as the arithmetic mean the equal employer and employee. The employee is the weaker party in formal relations with the employer. The legislator cannot provide complete legal regulation of labour relations, shifting part of the legal regulation on discretionary basis. In this context collective labour relations are of primary importance, since they create the legal basis, a prerequisite for an employment contract on equal terms, since they significantly strengthen the position of the employee, they encourage the employer to proper implementation of labour rights. In Ukraine, a significant part of collective relations is strained, since the latter often appeared on the initiative of the employer and his organizational advantage. There fore, the mere presence of collective relations becomes the guarantee of the protection of workers’ rights only in the case when the employees “have taken in” its main provisions, have worked out self-defense mechanisms. But unfortunately, it has not become systematic in the national legal space.

Authors and Affiliations

С. І, Запара

Keywords

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EP ID EP444010
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