1

Legal opinion

The termination of a labour due to temporary absence of the worker

by

Henrik Karl Nielsen

Yevgeny B. Khokhlov

within

LO-TCO

Baltic Labour Project Case 32, Russia 7

December 2001 2

Summary:

The of the Russian Federation regulates as grounds for termination of a labour contract by the management of enterprise (the employer) the absence of the worker from the work place for more than 4 months in a row as a consequence of temporary disablement. This ground for termination of a labour contract is not extended to the workers whose absence at the working place depends on pregnancy and confinement, labour trauma or professional disease which was contracted at the work place and also other cases regulated by the law.

This norm gives the employer right to terminate labour contract with the worker only for the fact of his (her) disease without any dependence on the quality of labour duty. It forces the worker, regardless of their health, to fulfil their labour duty before the 4 months of illness has passed, which may influence the future treatment of the worker and the condition of his (her) health.

Trade Unions propose to liquidate this ground for termination of labour contract. They believe that dissolution of labour contract, by circumstances which do not relate with objectivity to the impossibility of continuation of labour, violates the right of citizen to protection of health.

Trade Unions also propose to give to the employer the right to demand medical examination of the worker who has been ill for a long time for determination of his capacity to make the labour duty.

EXPERT OPINION CONCLUSIONS

International expert H.K. Nielsen

1. I foresee that the bodies supervising the implementing of the European Social will leave the States Parties a wide margin of discretion in determining when illness is to constitute a “valid reason” for the termination of the employment relationship within the meaning of Article 24 of the European Social Charter.

2. There is no general prohibition in the European Social Charter, that 3 unmarried mothers with family responsibilities are dismissed. However, Article 27 of the European Social Charter prohibits such dismissal if this is made with a reference to family responsibilities. 3. In my view ILO Convention No. 158 and ILO Recommendation No. 166 do not prohibit like the relevant Russian provisions, which you have requested me to evaluate. 4. In my view there is very little in ILO Convention No. 103 and ILO Recommendation No. 95 on which the FNPR may rely when debating the proposed new legislation in Russia.

5. If national legislation contains provisions relating to the dismissal due to illness, which are less favourable to workers with family responsibilities, there is, in my view, a question of in-compatibility with ILO Convention No. 156 and the corresponding ILO Recommendation No. 165.

INTERNATIONAL EXPERT OPINION

I. National Russian legislation.

I have received certain provisions translated into English from the Labour Code of the Russian Federation.

It appears that Article 33 of the Labour Code provides for the termination of labour , which have been concluded for an indefinite period, and fixed term contracts, which are terminated before the end of the term inter alia in the following case:

“(…) absence of the worker from the working place during more than 4 months in a row because of temporary disablement except holidays for pregnancy and confinement, if legislation does not establish a longer period for upholding of work for certain diseases.”

I understand that it follows from the provision that the post is reserved for the employee, who has lost his/her capacity to work due to labour injury or professional disease before the restoration of his/her capacity to work or the recognition of the person as an invalid.

I understand from the case sheet, which I have received, that the applicable Russian legislation en-titles the employer to terminate the labour contract with reference to illness of the worker regardless of any 4 dependence on the quality of labour duty. In order to avoid that the employer invokes the right to terminate the labour contract the worker will, in practice, feel forced to resume his duty be-fore the end of the 4 months period.

I understand that the FNPR considers that the termination of labour contracts on grounds, which do not relate to the objective impossibility of continuation of the labour contract, violates the right of the worker to the protection of health.

Furthermore, I understand that it is proposed to amend the above rules and replace them with a pro-vision giving the employer the right to demand a medical examination of the worker in order to determine the capacity of the worker to resume his active labour duty.

Furthermore, I understand that a proposal is debated in Russia providing for a provision whereby unmarried mothers may be dismissed due to violation of labour discipline or failure to carry out their labour because of their condition of health.

II. Provisions of .

The FNPR has requested me to consider the following instruments of international law:

The European Social Charter, 1996 The Maternity Protection Convention (revised), 1952 (ILO Convention No. 103) The Maternity Protection Recommendation, 1952 (ILO Recommendation No. 95) The Termination of Employment Convention, 1982 (ILO Convention No. 158)

In this legal opinion I will also consider the following international instruments:

Convention on Workers with Family Responsibilities, 1981 (ILO Convention No. 156) Recommendation on Workers with Family Responsibilities, 1981 (ILO Recommendation No. 165)

III. The European Social Charter. 5

The FNPR has requested me to consider the provisions of the European Social Charter in order to verify if there are any provisions which may be relevant for the proposal to amend the above mentioned Russian statutory provisions.

According to the case sheet the Russian Federation has not ratified the European Social Charter. I have verified this by checking the information available on the website of the Council of Europe.

However, it may be argued, that the European Social Charter generally has the of a commonly accepted European minimum level of social protection. Accordingly, I expect that the provisions of the European Social Charter will be taken due account of when the of the Russian Federation drafts future legislation. a. Article 24.

Article 24 of the European Social Charter recognises the right to protection in cases of termination of employment. The provision reads as follows:

“With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise: a) The right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service; b) The right of workers who’s employment is terminated without a valid reason to adequate compensation or other appropriate relief.

To this end the Parties undertake to ensure that a worker who considers that his employment has been terminated without a valid reason shall have the right to appeal to an impartial body.”

The central element of the provision is the requirement that the employment relationship is not terminated without “valid reasons”. However, the provision is very vaguely formulated, as there are no indications for the determination of which reasons are “valid”.

In order to ensure that the right is genuinely protected, a “valid reason” must, in my view, be a condition, which has a relevant impact on the capacity of the worker to carry out his/her obligations as an employee, cf. correspondingly below as regards ILO Convention No. 158. 6

I find that there can be little doubt that permanent illness of the worker will constitute a “valid reason” for the termination of employment. I, however, find it very difficult in practice to estimate exactly when illness may reasonably be considered permanent and in other words be considered a “valid reason” for termination of the employment relationship.

Indeed, I foresee that the bodies supervising the implementation of the European Social Charter in European law will leave the States Parties a wide margin of discretion in determining when illness constitutes a “valid reason” for the termination of the employment relationship within the meaning of Article 24 of the Social Charter.

There is, however, more detailed provisions relating to the same matter in ILO Convention No. 158, which will be dealt with below. b. Article 27.

Article 27 of the European Social Charter recognises the right of workers with family responsibilities to equal opportunities and equal treatment. The provision reads as follows:

“With a view to ensuring the exercise of the right to equality of opportunity and treatment for men and women workers with family responsibilities and between such workers and other workers, the Parties undertake: to take appropriate measures: a) to enable workers with family responsibilities to enter and remain in employment, as well as to re-enter employment after an absence due to those responsibilities, including measures in the field of vocational guidance and training; b) to take account of their needs in terms of conditions of employment and social security; c) to develop or promote services, public or private, in particular child daycares services and other childcare arrangements;

1. to provide a possibility for either parent to obtain, during a period after maternity leave, parental leave to take care of a child, the duration and conditions of which should be determined by national legislation, collective agreements or practice; 2. to ensure that family responsibilities shall not, as such, constitute a valid reason for termination of employment.”

As regards the proposal, which I understand is currently debated in 7

Russia, relating to the dismissal of unmarried mothers, it is the latter part of the provision, which is of interest.

As it appears from the wording, family responsibilities shall not as such constitute a valid reason for termination of employment.

There is, accordingly, no general prohibition that unmarried mothers with family responsibilities are dismissed. However, the provision prohibits such dismissal if this is made with reference to family responsibilities.

There are, however, more detailed rules relating to workers with family responsibilities in ILO Convention No. 156, which I will deal with in more detail below.

IV. ILO Conventions and Recommendations.

The Russian Federation is a member of The International Labour Organisation (ILO), which is a specialised organisation in the United Nations system, cf. Article 57 of the United Nations Charter.

The supreme body of the ILO is The International Labour Conference. The International Labour Conference is empowered to adopt Conventions and Recommendations, cf. Article 19 (5) and (6) of the ILO . Conventions and Recommendations may be adopted by The International Labour Conference with a majority of two thirds of the votes cast by the delegates present, cf. Article 19 (2) of the ILO Constitution.

ILO Conventions are subject to ratification by the Member States, cf. Article 19 (5) (a). When a Member State has ratified an ILO Convention, the Member State is obliged under Article 19 (5) (d) to:

“(…) take such action as may be necessary to make effective the provisions of such Convention (…)”

Recommendations, however, are not subject to ratification and apart from bringing a Recommendation before the competent authorities of the Member State, Article 19 (6) (d) of the ILO Constitution stipulates that:

“(…) no further obligation shall rest upon the Members, except that they shall report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of the law and practice in their country in regard to the matters dealt with in the Recommendation, showing the extent to which effect has been given, or 8 is proposed to be given, to the provisions of the Recommendation and such modifications of each provisions as it has been found or may be found necessary to make in adopting or applying them.”

Under Article 22 of the ILO Constitution the Member States are obliged to make an annual report to The International Labour Office (the Secretariat of the International Labour Organisation) on the measures, which have been taken to give effect to the provisions of ILO Conventions to which the Member State is a party. These reports shall be made in such form and shall contain such particulars as the Governing Body may request.

Under Article 23 of the ILO Constitution the Director-General shall lay before the next meeting of the Conference a summary of the information and reports communicated to him by Member States under Article 19 and 22.

As the number of ILO Conventions is now more than 180, the number of reports submitted to the organisation is very comprehensive. In order to facilitate the work of the organisation in reviewing the reports submitted by Member States, the ILO has set up a Committee of Experts on the Application of International Labour Conventions and Recommendations (The Committee of Experts).

The Committee of Experts does not derive its competence from the ILO Constitution. However, it has been in function since 1926 and the tasks entrusted to the Committee of Experts do not appear to be subject to non- acceptance on a general basis by Member States.

The annual reports of the Committee of Experts, therefore, may contain very valuable guidelines for the interpretation of ILO Conventions and Recommendations. a. ILO Convention No. 158 and ILO Recommendation No. 166.

According to the information available on the website of the ILO the Russian Federation is not a party to ILO Convention No. 158. However, in the following I will deal with the provisions of this ILO Convention and the corresponding ILO Recommendation No. 166. The Convention and Recommendation are the only generally and globally applicable international standards relating to the protection against unjustified dismissal. All members of the ILO will, therefore, presumingly take due account of these instruments when drafting national legislation. 9

The general clause relating to the protection against unjustified dismissal is contained in Article 4 of ILO Convention No. 158, which reads as follows:

“The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.”

At it appears, Article 4 of ILO Convention No. 158 makes reference to the same criteria (“valid reason”) as Article 24 of the European Social Charter, which I have dealt with in more detail above. Article 4 of ILO Convention No. 158, however, requires that the “valid reason” is connected with the capacity or conduct of the worker, or is based on the operational requirements of the undertaking, establishment or service. However, it is very difficult to derive from the provision more detailed requirements to national law as to the links of illness, which may constitute a “valid reason” for the termination of employment.

The definition of “valid reason” for termination is elaborated on in Article 5 of ILO Convention No. 158, which reads as follows:

“The following, inter alia, shall not constitute valid reasons for termination:

(a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours; (b) seeking office as, or acting or having acted in the capacity of, at worker’s representative; (c) the filing of a complainant or the participation in proceedings against an employer involving alleged violation of or or recourse to competent administrative authorities; (d) race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; (e) absence from work during maternity leave.”

Article 5 of ILO Convention No. 158 does not contain any reference to illness as a valid or non-valid reason for termination of employment. However, as it appears from the provision itself (“inter alia”) that the list of reasons is not exhaustive it may, of course, not be derived from Article 5 of ILO Convention No. 158 that illness will automatically be a valid reason for termination of the employment relationship.

The absence of the worker because of illness is, however, dealt with in 10

Article 6 of ILO Convention No. 158, which has the following wording:

“1. Temporary absence from work because of illness or injury shall not constitute a valid reason for termination. 2 .The definition of what constitutes temporary absence from work, the extent to which medical certification shall be required and possible imitations to the application of paragraph of this Article shall be determined in accordance with the message of implementation referred to in Article 1 of this Convention.”

This provision is supplemented by Section 6 of the corresponding ILO Recommendation No. 166, which reads as follows:

“(1) Temporary absence from work because of illness or injury should not constitute a valid reason for termination. (2) The definition of what constitutes temporary absence from work, the extent to which medical certifications should be required and possible limitations to the application of subparagraph (1) of this Paragraph should be determined in accordance with the methods of implementation referred to in Paragraph 1 of this Recommendation.”

It appears from Article 6 of ILO Convention No. 158 and Section 6 of ILO Recommendation No. 166 that temporary absence from work because of illness should not constitute a valid reason for termination. It may be derived from this provision that permanent absence from work because of illness or injury constitutes a valid reason for termination of employment.

However, neither of the provisions contains more precise criteria as to the determination when illness may be considered “temporary”. I, therefore, do not find that the wording of the provision prevents the national legislator from adopting rules according to which a worker may by dismissed, if he has been absent due to illness for 4 months in a row.

Both provisions stipulate that the definition of what constitutes temporary absence from work should be determined in accordance with the methods of implementation referred to in Article 1 of ILO Convention No. 158 respectively Section 1 of ILO Recommendation No. 166. These provisions refer to the national means of implementation of the instrument.

The Committee of Experts of the ILO drafted a General Survey in 1995 relating to the implementation by the ILO Member States of ILO Convention No. 158. Article 6 of the Convention is dealt with in more detail on pages 58-60. At p. 59 the Committee of Experts expresses the following 11 view:

“The Convention does not define the concept and injury. These terms are commonly accepted ad meaning both illness and injury that are not related to work and occupational illness and injury. Nor does it define the concept of temporary absence; however, the term “temporary” implies in itself that the protection may be restricted to a certain length of absence. Moreover, the Convention does not specify what sort of restrictions might be established. One of the restrictions could be related to repeated absences as a result of illness. It should also be mentioned that breach of contract following extended leave due to illness or injury if permitted by national law should be seen as a termination that would normally give rise to severance allowances and other similar benefits and not as a breach of contract by the employed person. The concept of temporary absence seems to be defined by national methods of implementation. It is essentially defined in terms of its length, which varies considerably, and can range from some months to several years; many countries have adopted duration of six months. In practice, temporary absence generally results in a suspension of the employment contract for a specific period (with the employer continuing to pay benefits or coverage being supplied in part or in full by social security benefits) and a prohibition to terminate employment during this period or during a prescribed period. Although the Convention leaves the definition of temporary absence to national provisions, the Committee considers that where the absence is defined in terms of its duration, it should be compatible with the aim of the Article, which is to protect a worker’s employment at a time when, for reasons of force majeure, he is unable to carry out his obligations.”

As it appears from the wording of the General Survey, the Committee of Experts appears to leave with the Member States a very broad margin of discretion.

The interpretation of Article 6 of ILO Convention No. 158 given by the Committee of Experts does, accordingly, not give any support for an interpretation whereby the Russian legislation, which is proposed to be amended, is in violation of the standards laid down in the Convention.

As it appears from footnote No. 127, the Committee of Experts has noted that the legislation in the Republic of Korea defines temporary absence to absence of duration of less than 30 days. Furthermore, it appears that the Committee of Experts has taken duly account of the Russian legislation and the period of 4 months without indicating any objections as to the compatibility with the relevant ILO standards. 12

I my view, therefore, ILO Convention No. 158 and ILO Recommendation No. 166 do not prohibit legislation like the relevant Russian provisions, which you have requested me to evaluate. b. ILO Convention No. 103 and ILO Recommendation No. 95.

The Russian Federation is a party to ILO Convention No. 103 on Maternity Protection. The Convention is supplemented by ILO Recommendation No. 95.

Article 6 of ILO Convention No. 103 has the following wording:

“While a woman is absent from work on maternity leave in accordance with the provisions of Article 3 of this Convention, it shall not be lawful for her employer to give her notice of dismissal during such absence, or to give her notice of dismissal at such a time that the notice would expire during such absence.”

The provision contains a protection against dismissal during maternity leave. From the case sheet I understand, that this situation is not the central element of the proposed amendment to Russian legislation. Article 6 of ILO Convention No. 103 does not contain a prohibition against termination of employment on grounds of illness of unmarried mothers in general.

The period during which the protection against dismissal is relevant, is extended by Section 4 or ILO Recommendation No. 95 which is, as you know, not legally binding. Section 4 (1) has the following wording:

“Where ever possible the period before and after confinement during which the woman is protected from dismissal by the employer in accordance with Article 6 of the Maternity Protection Convention (Revised), 1952, should be extended to begin as from the date when the employer of the woman has been notified by medical certificate of her pregnancy and to continue until one month at least after the end of the period of maternity leave provided for in Article 3 of the Convention.”

Besides extending the period of protection against dismissal with one month at least after the end of the period of maternity I do not find Section 4 (1) of ILO Recommendation No. 95 of much help for the proposed amendment of Russian legislation. 13

I draw your attention to Article 3 (5) and (6) of ILO Convention No. 103. The provisions have the following wording:

“5. In case of illness medically certified a rising out of pregnancy, national laws or regulations shall provide for additional leave before confinement, the maximum duration of which may be fixed by the competent authority. 6. In case of illness medically certified a rising out of confinement; the woman shall be entitled to an extension of the leave after confinement, the maximum duration of which may be fixed by the competent authority.”

The provisions provide for additional periods of maternity leave and not as such a protection against dismissal on grounds of illness of unmarried mothers.

Accordingly it is my view that there is very little in ILO Convention No. 103 and ILO Recommendation No. 95 on which the FNPR may rely when debating the proposed new legislation in Russia. c. ILO Convention No. 156 and ILO Recommendation No. 165.

It appears from the information available on the website of the ILO that the Russian Federation is not a party to ILO Convention No. 156 on Workers with Family Responsibilities.

However, this Convention may be of potential interest as a guideline for the proposed new legislation, and I will therefore in the following examine the relevant provisions of ILO Convention No. 156 and the corresponding ILO Recommendation No. 165.

ILO Convention No. 156 aims at the protection of workers with family responsibilities against discrimination. Article 3 (1) of the Convention stipulates:

“With a view to creating effective equality of opportunity and treatment for men and women workers, each Member shall make it an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subject to discrimination and, to the extent possible, without conflict between their employment and family responsibilities.”

The non-discrimination policy is similarly laid down in Section 6 of ILO Recommendation No.165. 14

If the national legislation contains provisions relating to the dismissal due to illness, which are less favourable to workers with family responsibilities, there is in my view a question of incompatibility with ILO Convention No. 156 and the corresponding ILO Recommendation No. 165.

NATIONAL EXPERT OPINION

Colleague H.K. Nielsen made an elaborate and detailed evaluation of international legal covenants connected with the of the above issue so there is no need for me to do any further research in this field. I would rather limit myself to evaluating the regulation of this issue by today’s national Russian . As far as one can see there are two aspects to the problem under discussion: firstly, it is the grounds and procedures for terminating a labour contract with a worker caused by his absence from work due to temporary disability; and second, legal protection of single mothers from dismissal.

When considering the above two aspects one should primarily take into account the following provisions of the exiting Russian labour law. It is possible to terminate a labour contract both at the joint and unilateral initiative of the worker and the employer, persons that are not parties to the labour contract as well due to circumstances occurring regardless of the will of any of the above subjects (particularly, due to the expiry of the contract validity).

The regulation of procedures for labour contract termination at the worker’s initiative is based on the principle of human being’s free disposal of his labour capacity. Accordingly, as a general rule, the worker may terminate the labour contract at any time and is not obliged to give any reasons for his resignation.

Just the opposite, in accordance with the existing Russian labour law the termination of the labour contract at the worker’s initiative is only possible on the grounds listed exhaustively in the law and in compliance with the dismissal procedures provided by law (in particular, in certain cases it is required to give notice to the worker regarding the proposed dismissal, to get consent from the duly authorized organization (such as for instance the trade union etc.). Dismissal on any grounds not provided by law or failing to comply with the dismissal procedures is considered a gross breach of 15 law; consequently the worker is to be rehabilitated at his former workplace with the payment effected for the time of forced absence from work. It should be noted that the existence of grounds for dismissal gives the employer the right to terminate the labour contract but does not oblige him to do it.

In accordance with paragraph 5 of Article 33 of the Labour Code of the Russian Federation the employer has the right to dismiss a worker who has been absent from his workplace for a long time due to temporary disability. At this the above paragraph differentiates maximum time for absence from workplace depending on the reasons for temporary disability.

Firstly, the employer gets the right to terminate the labour contract in the case of the worker’s absence from the workplace for more than for months due to temporary disability resulting from a general disease or ordinary injury. For this right to emerge it is necessary for the worker to have been absent from the workplace for more than four consecutive months. If during this period of time the worker came to the workplace and then fell ill again for a long time there are no grounds for his dismissal on the grounds in question.

Secondly, the workplace is retained for the worker for a period longer than four months if the temporary disability was caused by a certain disease. For example, in case of tuberculosis the workplace is reserved for the worker for a year according to the labour legislation.

Thirdly, it is absolutely unacceptable to apply the grounds in question for dismissing a worker absent from his workplace due to the loss of ability to work resulting from an occupational disease or work injury. In this case the job is retained for the worker for the whole period of the loss of ability to work until this ability is restored or the worker is qualified disable according to the established procedures. In the latter case the termination of the labour contract at the employer’s initiative is only possible if the worker does not conform to the work given to him under the labour contract due to his health condition that prevents him from doing the work (paragraph 2 Article 33, Labour Code of the Russian Federation). However it is allowed to dismiss a worker on the above ground provided it is impossible to transfer him with his consent to another work not contra- indicated for him on health grounds.

Fourthly, the labour law provides for preservation of the work or a woman who left her work due to pregnancy. In this event the work is preserved fro the female worker during her pregnancy and maternity leave as well as 16 during the child-care leave.

When considering this ground for terminating the labour contract at the employer’s initiative it is necessary to take into account the procedure for such termination established by law. According to Article 35 of the Labour Code of the Russian Federation termination of the labour contract on the grounds provided by paragraph 5 of Article 33, Labour Code of the Russian Federation is carried out with preliminary consent of the corresponding elected trade union body. As it follows from the existing practice trade union organization have an extremely negative attitude to workers’ dismissals on the grounds in question and been granting their consent only when it was impossible to transfer the worker with his consent to another work while his retention in his former position has a substantially negative impact on the state of affairs in the entity.

Thus it can be stated that practically from the very beginning of the application of the Labour Code of the Russian Federation (1972) and up to now paragraph 5, Article 33 of the Code has been actually invalid provision.

As regards the legal regulation of the working women’s labour, the Russian legislator provides for additional guarantees and bonuses for them, in particular, those provided in a special section (XI) of the existing Russian Federation Labour Code. These provisions include among others those restricting the employer’s capability to terminate the labour contract at his own initiative. In accordance with Part 2, article 170 of the Russian Federation Labour Code it is not permitted to dismiss pregnant women, those having children under three years of age (for single mothers – if they have a child under 14 years of age or a disabled child under 16 years of age) unless in a situation when an undertaking, institution or organization is liquidated completely. In such a case dismissal is acceptable if employment is provided without fail. It is also obligatory for the management to provide employment to the above women in the event of their dismissal upon the completion of the fixed-term contract. During the recruiting period their average salary is preserved for them but not for more than three months from the termination of the labour contract.

Hence the existing labour law absolutely prohibits the dismissal of the above categories of working women (including in the event of absence from work and other violations of labour discipline). The only case of termination of the labour contract treated as dismissal initiated by the employer is the termination of the labour contract due to the complete liquidation of an undertaking, institution or organization. However in this 17 case similarly to the termination of the labour contract due to the expiry of its validity (evidently not considered to be a case of worker’s dismissal initiated by the employer) the employer is obliged to provide employment to the female worker at another company.

Thus when characterizing the existing Russian procedures for terminating the labour contract at the employer’s initiative one can ascertain a high degree of the state’s paternalism in labour relationships. At the same time the state has been trying to provide for special protection of certain categories of the workers, particularly working women. Accordingly the employer’s degree of freedom is considerably restricted including his abilities to terminate the labour contract.

In real life the state’s desire to use law for guaranteeing the protection of the worker’s interests in his relationships with the employer as well as to resolve, more often than not at the employer’s cost, general social problems has been by and large binging about negative results. Thus currently the employer has been either trying not to admit to work women of reproductive age or enter into agreements with them or not to legalize labour relations with their participation. It should be noted that similar practice has been typical of different countries in different periods of time. Thus, for instance, in the mid 19th century the granting of special benefits to working women caused protest manifestations by Paris female inhabitants; similar actions gave rise to factory workers disturbances in Russia at the end of the 19th century.

Thus it follows that at present in Russia the problem is not the lack of state interference with labour relations but rather the excessive state’s patronage in the labour sphere. A solution to this problem can be found above all through relieving the employers of the responsibility to address general social issues concerning the support of certain categories of workers who need it (pregnant women, women bringing up children, minors, disabled persons, those getting education at colleges and universities while working at a workplace etc.). Accordingly, this kind of care should be taken by society and the state.

As regards liberalization of the termination of the labor contract, particularly, giving up the practice of establishing by law of an exhaustive list of grounds for dismissing workers at the employer’s initiative (as it is proposed in one of the draft labor codes of the Russian Federation) it is not deemed possible under the circumstances existing today. First it should be necessary to set up an efficient system, to raise the efficiency of the federal labor inspectorate and possibly to establish bodies of labor 18 administrative justice. Thus the problem of liberalization of the instrument of legal regulation of public labor is part of a more general problem dealing with the reforming of the Russian legal system.

National Trade Union Contact RUSSIAN FNPR ST. PETERSBURG

Valery Safonov Legal Responsible Tel: +7-812-117 7267 [email protected]

INTERNATIONAL EXPERT Henrik Karl Nielsen Norsker & Jacoy Law firm Denmark [email protected]

NATIONAL EXPERT Yevgeny B. Khokhlov St. Petersburg State University

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