For the last several years, during the current Labor Code, employees were dismissed from work without any warning and explanations. Their chances to restore their rights in courts were minimum. As confirmed by reports of ILO Committee of Experts, current Labor Code needed substantial amendments (Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), International Labour Conference, 102nd Session, 2013). In two months after coming a new authority in office, Ministry of Justice of Georgia started working on a new draft Labor Code. The elaboration of a new draft was undergoing with involvement and active participation of civil society. At the end of February the draft labor code was sent to Parliament for discussion.
The following article deals with analyzing of new Labor Code amendments, their advantages and disadvantages:
According to a draft Labor Code, grounds for termination of employment relations are amended. They are more concrete for employers not to interpret norms and violate employees’ interests. Though, among grounds for termination of labor relations, there is such a vague regulation as “termination of labor relations on the basis of “other objective circumstance” (article 37, paragraph 1, subparagraph “o” of a draft Labor Code). Such a general regulation includes a danger for violating employees’ rights.
One of the advantages of the new draft Labor Code is that, it envisages one of the banning, imperative grounds for termination of labor relations such as discrimination basis. The new draft prohibits termination of a labor contract due to a discrimination basis. Despite of the fact that the current Labor Code prohibits any kind of discrimination, it is still a general regulation which complicates for an employee to prove a discrimination fact in courts.
„As according to the new draft Labor Code, an article on groundless dismissals of employees from work without any explanation and reason is annulled (current Labor Code, article 37, paragraph 1, subparagraph ,,d” – invalidation of the employment agreement) and the new draft envisages a banning ground of termination of labor relations on the basis of discrimination. these two factors will lead to a better protection of employees from groundless dismissals”, – states an Executive Director of Human Rights Center Aleksandre Tskitishvili.
The new draft Labor Code objectively regulates the issue on giving a severance pay to an employee at the time of termination of a labor relation and its payment term. The new draft expanded grounds of giving compensation to a dismissed employee. In particular, an employer is obliged to give a compensation (not less than a month’s salary) to an employee within 30 days. The draft envisage some objective circumstances when an employee receives a compensation. Unfortunately, the new draft Labor Code does not envisage giving of severance pay for those who are dismissed from work due to commencement of liquidation of the employer being a legal entity. For example, for the last period, as a result of liquidation of public schools, many employees lost their jobs and did not receive any severance pay. That’s why some NGOs recommend to envisage those cases as well in the draft.
„In total, an expansion of cases on giving a severance pay should be positively estimated when, for example, the current Labor Code envisages compensation only in case of invalidation of the employment agreement under the initiative of the employer (current Labor Code, article 37, paragraph 1, subparagraph “d” – invalidation of the employment agreement). Besides, positively should be estimated a new regulation which deals with establishment of period of 30 days for giving a compensation. According to the amendment, an employee has a full opportunity to receive severance pay in a reasonable period and not to wait for the payment for a long time as envisaged by a current Labor Code”, – states the President of Educators and Scientists Free Trade Union of Georgia Maia Kobakhidze.
According to the new amendments, an employer is obliged to give to a dismissed employee a written reasonable argumentation of termination of a labor relation within 7 days after an employee presents a request. Otherwise, a burden of proof on factual circumstances of a dismissal relies with an employer at the court. By recent amendments, an employee will be protected from groundless decisions of an employer. According to a current Labor Code, an employer is not obliged to give any argumentation on reasons of dismissing an employee, which violates the norms of European Social Charter (ratified by Parliament of Georgia, resolution N 1876, July 1, 2005).
Among other innovations, the draft Labor Code envisages a rule of payment for overtime labor. According to a new amendment, overtime labor (labor is considered overtime when a work performance of the employee exceeds 40 hours a week) will be paid according to an increased hourly rate of wages. Besides, according to the draft, overtime work payment is considered to be an essential term of a labor contract. Current Labor Code does not duly regulate overtime payment issues, by which a constitutional principle of fair reimbursement of labor is violated. Current Labor Code implies a vague regulation of the issue, according to which terms of the overtime labor are defined upon consent of the parties.
The revised draft Labor Code envisages a regulation on giving compensation to an employee instead of not used vacation leave by him/her when a labor contract is terminated on the initiative of an employer. Current Labor Code does not envisage any regulation of such kind. There used to be cases when an employer terminated labor contract before employees’ going on a leave.
„The employees who are working during the whole year did not receive a vaction leave payment because their labor contract is terminated before going on a leave, which is an unfair approach”, – states Maia Kobakhidze.
According to the new amendments, employees are protected not only in contractual relations, but also in pre-contractual relations. According to a draft law „any type of discrimination due to race, color, ethnic and social category, nationality, origin, property and position, residence, age, gender, sexual orientation, limited capability, membership of religious or any other union, family conditions, political or other opinions are prohibited in pre-contractual and employment relations”. By the new amendments, an employer is protected during the relation with potential employer untill the conclusion of a contract.
The draft Labor Code properly regulates forms of concluding a labor contract (written and verbal). The draft determines the cases when a written labor contract should be concluded. According to the new regulation „a labor contract is concluded in the written form if a labor relation lasts more than three months.”
The draft clearly determines essential terms of a labor contract on which parties should agree and be envisaged in a labor contract. These terms are: “the date of starting a work performance and the duration of labor relations, working and holiday time, working place, position and the type of a work, the quantity of a salary and its payment, overtime work and its payment, duration of a paid and unpaid vacation leaves and a rule of giving a leave.
According to the draft, an employer is obliged to introduce operations manual to an employee. Recently, for example, among teachers there were cases when employers did not introduce operations manual to employees and amendments to it. Accordingly, teachers got acquainted with operations manual after they were dismissed from work and started a case in a court.
According to the new regulation, draft Labor Code determines an issue of an additional vacation leave for people performing hard, hazardous and dangerous labor. Such employees are granted additional paid leave at least 15 calendar days per annum.
NGOs positively estimate the fact that revised draft Labor Code clearly envisages the duration of a business day for an under age person. Business day for an under age person from 16 to 18 years old, should not exceed 36 hours per week. Business day for an under age person from 14 to 16 years old should not exceed 24 hours per week. Current Labor Code does not regulate duration of a business day of under age people which violates norms of “Convention on the Rights of the Child” (binding for Georgia since April, 21, 1994).
As for strengthening of the guarantees of protecting women’s rights, no substantial amendments are made to the Labor Code. “The problem of just and fair compensation of a maternity leave and childcare and maintaining of a workplace during the period, still remains a problem”, – states Maia Kobakhidze
According to the new regulation, termination of a labor contract during the leave for the reason of pregnancy, childbirth and childcare is prohibited except some objective circumstances. Such an imperative regulation is not envisaged in the current Labor Code which led to groundless dismissals of pregnant women being on a maternity leave by which norms of Convention on the Elimination of all Forms of Discrimination against Women was violated.
One of the innovation of the draft is a determination of banning norms of discrimination due to union membership. The new regulation prohibits interference in union activities and discrimination of an employee due to union membership.
„Recently, employees were illegally dismissed from work due to a union membership, by which ILO Convention #87 was violated”, – states the lawyer of the Georgian Trade Unions Confederation, Raisa Liparteliani.
To summarize the amendments, it should be mentioned that they will promote a better protection of employees’ rights and interests in labor relations as well as in pre-contractual relations. The draft envisages substantial guarantees for prevention of discrimination and obliges an employer to observe minimum standards of labor relations. However, the draft does not fully promote protection of employees’ rights, in particular, women’s rights and rights of people disabilities, as well as rights of public servants who have a limited right to participate in a strike.
Lawyer of the “Human Rights Center”