Labor disputes. Attorney, lawyer in labor disputes

Most of us, going to and from work every day and complaining about it every day, do not even think about the fact that the right to work is the most important among other socio-economic human rights. Labor legislation, like no other, is limited by the harsh realities of the economic and political situation in a given society, and it is these realities that determine the level of working conditions and wages, as well as the protection of labor rights.

In today's Europe, a company's image and profits directly depend on its "social color" - the degree of tolerance for human diversity. Ordinary customers can declare a boycott of goods of a certain brand if they accidentally learn about discrimination at an enterprise that produces its products under that brand. It is as natural for the West to comply with environmental legislation as it is to comply with the terms of the International Labor Organization Convention.

However, in our country, it is in the area of labor law that legal nihilism is particularly evident on both sides - both employers who neglect the provisions of the Labor Code of Ukraine (Labor Code), especially with regard to occupational safety, and employees who do not want to know their labor rights or do not believe in the possibility of asserting them, and often simply prefer to turn a blind eye to violations in order to keep their jobs.

Although the current Labor Code, which has undergone fundamental changes over the course of more than 40 years of its existence, having been adopted during the reign of the administrative command system and state ownership in the former USSR, its main provisions undoubtedly emphasize the social orientation of labor law. Another thing is that in practice, our realities do not respect the principle of parity of the parties - employers and employees, on whose side trade unions should be, which is natural for the European culture of entrepreneurship, especially for the Scandinavian countries of "social dialogue" (Sweden, Norway, Denmark). And that is why in case of a labor conflict in Ukraine, an employee is often left alone with a "capitalist" employer, functionary trade unions, and a bureaucratized state machine in the form of a court, if he or she goes to court.

Fortunately, most of the problems can be prevented in advance, at the initial stage of employment, i.e., by concluding an employment contract with a clear definition of its terms for both parties, familiarizing oneself with the job description, joining the trade union, if it exists at the enterprise, drafting and state registration of its charter or collective agreement between the employer and the labor collective, making the necessary changes to it, etc.

Since it is the collective agreement at a particular enterprise (except for the Labor Code, which is referred to in the Law of Ukraine "On Collective Bargaining Agreements and Agreements") that acts as an effective guarantee of protection of additional rights and preferences for members of the labor collective, compared to those guaranteed by the Labor Code (their reduction is generally unacceptable by law), the development of its provisions should be treated with extreme caution by both parties - both employees and employers - in order to avoid facing unjustified actions, including in court. In the future, both parties - employees and employers - should be extremely careful in drafting collective bargaining agreements in order to avoid unpleasant violations, including in court.  The conclusion of collective agreements and contracts must be preceded by collective bargaining, so their effective conduct is far from a formal procedure.    

In addition, labor law provides for the operation of a body such as the CCC (Article 224 of the Labor Code), a specially authorized labor dispute commission, which currently exists formally only in some large organizations (15 or more people by law), but in reality does not always have the support and decent conditions for productive work, which also requires certain financial investments.

The CCC does not consider labor disputes of judges, prosecutors and investigators, employees of educational, scientific and other prosecutorial institutions, as well as labor disputes that by law (Article 232 of the Labor Code) must be considered in local courts.

In the event of a labor conflict, it is very useful to turn to a mediator - a specialist in out-of-court dispute resolution and conclude an amicable agreement between the parties, because in practice, even if a court decision is made in such a dispute in favor of the employee - for example, reinstatement - it is unlikely that the disturbed status quo regarding the psychological climate in the team and relations with management will be restored.       

We offer you to use our services in the field of labor law:

• drafting internal labor regulations, job descriptions and agreements (contracts), regulations, including those on personal data protection
• advising on the conclusion of a collective bargaining agreement;
• advising on any violations of labor laws (essential terms and conditions, dismissal, remuneration, staff reductions, etc;)
• assistance in compliance with the law in case of dismissal in connection with the reorganization of the enterprise;
• out-of-court settlement of labor conflicts (collective and individual), participation in negotiations;
• Preparation of necessary procedural documents (claims, complaints, statements, petitions, etc.);
• representation and protection of interests in court in the event of labor disputes (making changes to entries in the employment record book; recovery of wage and benefit arrears; challenging a transfer to another position or job; challenging the disciplinary or financial liability of an employee; compensation for damages; recovery of compensation for unused vacation; challenging a reduction or unlawful dismissal, etc.)

On the threshold of the European Union, it is simply impossible not to dwell on the manifestations in Ukraine of discrimination in the exercise of the right to employment and decent pay on certain grounds - gender (the first unprotected category is women, especially those with children, but men are sometimes subject to restrictions on stereotypically "female" professions: services, education, culture, art); age (ageism - both young professionals and people over 40 suffer, who are considered almost "pre-retirees", while the retirement age has been increased to 60); sometimes nationality; health status (disabled people - although the law provides for their employment, not every company can create conditions for this); sexual orientation, etc. Unfortunately, there is currently no clearly defined procedure for proving such facts and bringing the offending employer to justice. On May 13, 2014, the draft law No. 4581 "On Amendments to Certain Legislative Acts of Ukraine (on Preventing and Combating Discrimination)" was voted in the Verkhovna Rada.   

The most important novelty of this law is that "in cases of discrimination, the plaintiff is obliged to provide factual evidence that confirms that discrimination has occurred. If such data is provided, the burden of proof of its absence is on the defendant."

The second party, the employer, cannot be ignored, as the "impersonal" perception of the enterprise is often violated due to the "impersonal" perception of the company that is inherent in our minds, which is too "delayed" in society. Thus, in the event of a change of ownership of the enterprise or any reorganization, the employment contract remains in force, and termination at the initiative of the owner is possible only in the event of a real reduction in the number or staff (part 3 of Article 36 of the Labor Code), which contradicts the essence and freedom of the employment contract and clearly limits the owner's rights to hire employees independently. In order to exercise the rights of business owners, the law provides for the possibility of creating special employers' organizations along with trade unions.

Unfortunately, the new Labor Code, the draft of which has been submitted to the Verkhovna Rada, significantly narrows the rights of employees and trade unions, which directly contradicts Article 22 of the Constitution of Ukraine: the employer is allowed to increase the working week to 6 days in certain industries (Article 137); to dismiss single mothers (Article 118); disclosure of salary by an employee is equivalent to disclosure of trade secrets (Part 2 of Article 104), etc.

We hope that your labor rights will be respected, but in case of violation, we guarantee their adequate protection.

   

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