LEGAL WARRANTS OF LABOUR RIGHT AND PROBLEMS OF THEIR REALIZATION IN GEORGIA

Lia Gazdeliani

Labour is a necessary condition for the existence of human society and an important means for the realisation of human abilities, development of personality and establishment of relations with other people. During the labour process people do not only have social relations, but also legal and labour ones.

Labour right is the only main right of humanity. According to article 23 of Human Rights Declaration, “each person has the labour right, the right to choose profession, have fair and favourable labour conditions as well as the right of protection from unemployment”.
Freedom of labour is an important achievement of democratic society. The free labour right is recognised by the “European Convention on the protection of human rights and freedom” (article 4) as well as by the International Pact on Civil and Political rights” (part 3, article 8, paragraph 3). “The Social Charter of Europe” determines in detail the rights of employed population with regards to legal working terms, fair payment, safe and hygienic conditions of labour”.
Georgia has joined international labour conventions that prohibit compulsory, obligatory labour and any discrimination in employment sphere.
The Georgian law, mainly, is based on the labour rights of international acts and conventions as well as on directions of realising the rights. Namely, according to article 30 of the Georgian constitution, “labour is free” (paragraph 1). This article implies that any citizen of Georgia has the right to dispose of his labour ability and perform any activities that are not forbidden by the Georgian law. First of all, freedom of labour means conditions for free execution of labour rights. These conditions should be equal for all people notwithstanding their social and national characteristics, beliefs, sex and political views, place of residence and other circumstances. At the same time, freedom of labour implies freedom within permissible limits, i.e. freedom within the limits permitted by the law. The law defines rules and terms for the execution of labour right.
The Labour Code of Georgia regulates labour relations between workers and employees living in Georgia and enterprise, institution and organisation regardless of their property and organisational and legal form, it defines legal and organisational grounds in labour sphere for the protection of principal human rights.
The legislature envisages for such legal means for the regulation of labour relations as conferment of legal labour right to subjects of legal labour relations. Labour agreement is the first legal act that engenders legal labour relations and makes an influence on social and labour relations. Labour agreement (contract) provides for main obligations of parties in labour relations. For instance, under article 16 of the Labour Code that determines parties of labour agreement and its content, labour agreement (contract) is an agreement between an administration of enterprise, institution, organisation and employee. Under this agreement, the first party – administration of enterprise, institution and organisation is obliged to provide an employee with necessary working conditions, pay him/her a salary in the amount specified in the labour agreement (contract); the other party – employee – is obliged to perform particular job in accordance with his qualification and position, observe conditions of labour agreement, and comply with standing order.
In reality, breaches of obligations of labour contracts by enterprise, institution and organisation administration as well as by employees are quite a rare thing in Georgia. Unfortunately, such facts are not registered though some cases become an object of attention for state labour inspection and courts. In 2000-2001, after the planned examination of organisations and institutions by labour inspection, up to 500 cases of labour contract breaches were revealed. The breaches were the following: some employees worked without labour contract. In some cases, the contract did not envisage for obligations of parties, work terms, amount of salary, etc. In 2000, up to 1460 or 83,7% of labour disputes were settled by the Georgian court. 530 cases concerned reinstatement. 117 cases were connected with the damage of employees’ life and health.
The Georgian labour law prohibits groundless refusal of concluding an employment contract with a person. After the employment contract is concluded, it is forbidden to directly or indirectly limit person’s rights or attach priority to some persons on account of their race, colour, language, sex, religion, political or other views, national and social position, birth, status and place of residence. However, in reality, mass media often informs about age, sex, language and other limitations. At the same time, the drawback of the law is that neither the Labour Code nor normative acts specify any “groundless reason” of the refusal of concluding an employment contract with a person. To a certain extent, this becomes a reason of employer’s unrestricted freedom in deciding issues of concluding an employment contract.
Under the Georgian labour law, transfer of person to another post within the same enterprise, institution, organisation as well as transfer to another enterprise, organisation or other place even together with the enterprise, institution and organisation is permitted only with employee’s consent except for cases when it is necessary for an enterprise to transfer a person temporarily to another post or to apply disciplinary punishment to him (The Georgian Labour Code; article 26, paragraph 1). However, mass unemployment and fear to lose a job makes people agree to the transfer to another post (including low grading job with worse working conditions). Factual compulsion is often concealed behind an employee’s formal agreement. In such cases the executive’s positions is: “If you do not like it, you are free to leave. There are many other applicants!”.
The Labour Code envisages for reasons and cases of cancellation of labour agreement (contract) such as initiative of administration and employees (the Georgian Labour Code, article 30, 31,32,33,34). However, notwithstanding the detailed interpretation of such cases, in reality, the rules of dismissal as well as labour rights of employees are often broken. As mentioned above, the Georgian court has settled 530 claims for reinstatement. Yet, we should suppose that cases of dismissal are rarely referred to court.
As far as we know, employees and workers can be dismissed from enterprises, institutions, organisations in case their services are not required any more or in case of redundancy. This makes it necessary to develop legal mechanisms of social protection. It is noteworthy that the Georgian labour law provides for such mechanisms when it defines warrants and rules of providing dismissed employees with jobs. Under the Labour Code, article 42,1 “the labour right of dismissed employees is guaranteed by the following: a) Provision with another job within the same enterprise, institutions, organisation; b) Provision with job in another enterprise in accordance with previous profession, speciality, and qualification. Provision with another job in accordance with personal wishes and social requirements in case a person lacks these skills; c) Giving the possibility of learning new professions (specialities) and providing employees with appropriate work.”
An employee should be given a notice of dismissal no later than two months earlier. Notice about expected dismissal should be confirmed by employee’s signature.
Under the law, in case of liquidation and re-organisation of an enterprise, institution, organisation, dismissed workers have a right to compensations and benefits. Namely, under the Georgian Labour Code, article 42,3, after the termination of agreement (contract), employees have a right to the following: a) Gratuity on discharge amounting to an average salary per month; b) Preservation of average salary before employment, but for no more than two months from the date of dismissal without the consideration of the gratuity on discharge; c) Continuous length of service does not exceed three months from the date of stoppage of work. Unfortunately, dismissed employees often do not receive compensations and benefits because of the insolvency of an enterprise or unrestricted freedom of employers (especially in private sector).
Under the international and Georgian labour law, one of the means of realising people’s labour right in accordance with fair legal conditions is normal duration of working period. According to the Georgian Labour Code, “normal working hours must not exceed 41 hours per week”. Given the necessity of creating favourable economic and other conditions, It is necessary to establish a shorter working week. State regulates working hours by means of trade unions. Working hours must not change on the basis of agreement between administration of enterprises, institutions, organisation and trade unionists or workers, if not provided otherwise by the labour agreement.
Reduced working hours ? 36 hours per week – are envisaged for 16-18 years old employees, 15-16 years old employees must not work for more than 24 hours per week, employees working in harmful conditions must not work more than 36 hours per week (article 44). Duration of working hours before days off is reduced to one hour with both five or six working days (article 46);
The research results of the Georgian state department about labour force for 1998-1999 have revealed the fact that working hours of employees in Georgian national economy made up 33.4 hours per week in average, which is much different from normal working hours specified in the law. Employees of hotels and restaurants (47.7 hours), international organisations ( 45.1 hours), technical service of trade and household goods (44.5 hours), public and defence departments (43,2), transport, storage facilities and communication (43.1 hours) work for more hours than set out by the law on normal working hours (41 hours per week). The research results have shown that in reality the law on reduced working hours of under-aged and pregnant employees is often not observed (especially in private sector).
According to the research of labour inspection, overtime work and work at days-off is usual, too. In 2001, employees were not paid for overtime work in a larger part of enterprises: in educational institution of Mtatsminda-Krtsanisi region in Tbilisi, in JSC “Mercury-92”, in nursery school N206, “Dionise” ltd, JSC “Kutaisi motor-car factory”, etc.
Under international legal acts, one of the means of realising a right in accordance with fair labour conditions is annual paid leave. “The European social charter” (changed). obliges member-countries of the European Council to provide minimum 4-week annual paid leave (part 2, article 11, paragraph III). This requirement is set out in article 67 of the Georgian labour law. According to it, each employee has the right to annual leave with the preservation of workplace and salary. Employees’ leave should be no less than 24 working days, if not provided otherwise by the labour agreement.
The research of Georgian labour inspection has also confirmed the fact that despite the requirements of the law, the right of Georgian citizens to annual paid leave is often broken. Such breaches are usual in a private sector of economy where employers behave on their own and do not provide employees with annual paid leave. Employees often refuse paid leave with fear of losing their jobs.
One of people’s main labour right is equal payment for equal work. The amount of salary should be enough for the normal existence of an employee and his family (Human Rights declaration, article 23). These requirements of Human Rights Declaration are set out in the Georgian labour law as follows:
1. Employee’s pay depends on work duration and qualification;
2. The amount of employee’s salary should not depend on his race, colour, sex, religion, political and other views, national, ethnic and social position, place of birth, status and place of residence.
3. Employee’s salary is based on the rules and conditions of labour agreement (contract) (article 75).
4. The minimum monthly wage should not be less than the minimum subsistence level. Minimal salary requirements must be observed by all institutions, enterprises, organisations notwithstanding their private property, organisational and legal form (article 76).
Compared with other terms of realisation of labour right that are specified in the Labour Code, these requirements are broken very often. First of all, we should note that an average salary of employees in Georgia is much behind the minimum wage determined by the Statistics Department of the country. For instance, in 1997 average monthly nominal wages amounted to 45.5 GEL, the living cost for able-bodied men made up 105.3 GEL, in 2000 this index equalled 72.3 and 116.6 GEL up from 67.5 and 115.8 GEL in 1998. Thus, the minimal average salary of employees makes up approximately 50-60%, which is, certainly, illogical and unacceptable. Besides, salaries in both private and budget sector are not paid in due time or sometimes delayed for an indefinite period of time. According to the data of the Finance Ministry of Georgia, unpaid salaries in budget sector made up 100 million GEL.
Despite the existing drawback, we would say there is an appropriate legal framework in Georgia for the realisation of citizens’ labour rights, and a particular mechanism has been developed for the protection of these rights. The Georgian Code of administrative breaches envisages for particular sanctions for the breach of labour law and rules. According to article 42 of the Code, “in case of breach of labour rights and rules by enterprise, institution, organisation (notwithstanding the property, organisational and legal form) executives must pay a penalty in the amount of hundred minimal wages; if the person breaks the labour law within 1 year after the administrative punishment, he must pay a penalty in the amount of 200 minimal wages”. Unfortunately, neither labour law nor the Civil Code envisages for any other responsibilities for the breach of labour law, which does not make it possible to react adequately to the breach of citizen’s labour rights. We think that a new edition of Labour Code should provide for such responsibilities that would practically express cases of breaches of citizen’s labour rights. For instance, in case of groundless refusal of concluding an employment contract or in case of dismissal, a law should provide for moral damages apart from compensations. With the purpose of eliminating cases of salary delay, an employer should be obliged to make overdue payments with interest for each delayed day. A sanction system for other breaches of labour law should become more tough.