The FINANCIAL — According to the new version of Labor Code discrimination (gender, racial, ethnic, religious, etc.) made by the employer shall be prohibited not only during the labor relations (while the employee works), but also during the pre-contractual relations.
In such a case, if a person makes a complaint, the burden of proof shall be placed on the employer.
The current version shows that discrimination made by the employer is only prohibited during engaged labor relations.
Proposed changes were analyzed recently by Transparency International.
Another change is that the employer becomes obliged to provide the job candidate with full information about the work to be performed; the form and term of the labor contract; the working conditions; the legal position of the future employee during the labor relations; and the remuneration. Currently the employer is not obliged to provide the candidate with the said information; the candidate has the right to obtain the information on his/her initiative.
The labor contract shall be concluded for a definite or indefinite term. It shall be concluded for a definite term only in cases when it is related to: fulfilling a concrete job; seasonal work; temporary increase in the amount of work; replacing an employee during his/her temporary absence; other objective circumstances.
It is changing the duration of working time according which the working time determined by the employer during which the employee performs the obligations imposed by the contract shall not exceed 41 hours per week. The working time does not include a break and rest time. The working time for minors aged between 16 to 18 and persons employed to perform hard, harmful, or dangerous work has also been limited, and it shall not exceed 36 hours per week. Also, the working time of minors aged between 14 to 16 shall not exceed 24 hours per week.
As for the overtime work it should be remunerated if it exceeds 48 hours per week. Overtime work shall be remunerated with a rate that exceeds the average hourly rate by at least 25%.
The employee shall be entitled to a paid leave of at least 24 working days per year, according to the new changes while the old one says almost the same.
Disability is considered as temporary if its duration does not exceed 60 calendar days on succession or if the entire duration over six months does not exceed 90 calendar days. It should be noted that determining the terms of temporary disability is very important for the protection of the employee’s labor rights, since the employer does not have the right to dismiss him/her during this period. According to the current code, temporary disability shall not exceed 30 calendar days on succession or the entire duration over six months shall not exceed 50 calendar days.
The main change in termination of a contract is that the concept of “annulment of contract” (which implied termination of contract on the initiative of one of the parties) has completely disappeared, and it no longer constitutes grounds for terminating a contract. Therefore, the employer is no longer entitled to dismiss an employee without indicating the grounds (it should be noted that an employee may leave the job without naming a cause), and these grounds must be envisaged in this code.
One of the most important novelties of the draft code is included in Part 4 of Article 38. According to this norm, the employer is obliged to substantiate the grounds for terminating the contract in writing within seven calendar days of the employee’s demand. The employee has the right to appeal the substantiated decision in court within a term of 30 days, and, if the employer fails to substantiate the decision on dismissal in writing within seven days, the employee is entitled to appeal this decision of the employer within 30 days, in which case the burden of proof on factual circumstances is placed on the employer.
With a labor contract, the employer may obligate the employee not to use the knowledge and qualifications acquired while performing the terms of the contract for the benefit of another, competitor employer. This restriction may not apply after the labor relations are terminated. According to the current code, the restriction is in force not only during labor relations, but also after their termination, but no longer than for three years.
In case of labor dispute the draft code differentiates between examination of disputes that arise in individual labor relations and of those arising in collective labor relations.
The mediator shall examine the dispute in accordance with “The rule of examining and settling of disputes that arise during collective labor relations” approved by the Minister. The Minister has the right to make a decision to stop conciliatory procedures at any stage. Participation in the procedures is obligatory for the parties. The parties may also agree to transfer the dispute to an arbitration court at any stage.
According to the draft changes, the right to stage a strike or a lockout at the time of collective labor relations only arises when conciliatory procedures end without a result; it is only after this that it becomes permitted to resort to such radical measures as a strike or a lockout. It is possible to conduct conciliatory procedures both though direct negotiations of the parties and through a mediator appointed by the Ministry. The participation of a mediator depends of the will of the parties or on the Minister’s initiative to get involved in a dispute. Accordingly, the conciliatory procedures can be conducted both with and without the involvement of a mediator appointed by the Ministry.
However, the changes envisaged in the draft code relate the origin of the right to stage a strike or a lockout closely to a mediator appointed by the Ministry (it is permitted to exercise the right to stage a strike only after 21 days from the day a party sends the Minister a request to appoint a mediator or 21 days after the day the Minister appoints a mediator on his/her own initiative) and it is only permitted to stage a strike if the conciliatory procedures involved a mediator of the Ministry.
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