CC BY
25Zokirov Sardorjon,
Senior Speciali st of the Department of Strategic Development and Entering into International Rankings of Tashkent State University
of Law
ORCID: 0000-0002-2628-6153, E-mail: [email protected]
Baybekova Zulfiya,
Ma ster's student of the direction "Business Law" of Tashkent State
University of Law, ORCID: 0000-0002-9497-5057, E-mail: [email protected]
JUDICIAL PROTECTION OF VIOLATED LABOR RIGHTS
Ab stract: The article analyzes the issues of protection of violated labor rights by the judicial authority. Special attention is paid to the peculiarities of the consideration of labor disputes in court, the negative and positive aspects of protecting labor rights in this way. The opinion of practitioners - judges, who are aimed at the attitude towards judicial protection of violated labor rights: the opinion ofjudges of the Supreme Court of the Republic of Uzbeki stan and the opinion of judges of inter-di strict courts - have been studied. A comparison was made between the norms of the current Labor Code and the Draft of the new edition of the Labor Code. The work provides a classification of labor disputes: depending on the subject of protection of violated rights, on the number of employees. The features and differences of the judicial body and the labor dispute commission are revealed. The international experience of protection of the employee's violated rights, the role of the judicial authority in this activity is considered. The stati stical data that reveal the judiciary's role in protecting the employee's violated labor rights are presented. Also, the work considered the problems which appear in protecting the rights of an employee by using examples that were taken from judicial practice.
Keywords: judicial protection, labor disputes, individual labor disputes, labor dispute commission, deadlines and their admission, state duty, judicial practice, assessment of evidence, international experience.
The right to judicial protection of labor rights and freedoms arises for the subject of labor relations at the moment when his rights or legitimate intere sts are violated and exercised regardless of any circum stances since it is an integral part of con stitutional law [1, P.50]. In fact, the Con stitution of the Republic of Uzbeki stan guarantees "to everyone judicial protection of his rights and freedoms, the right to appeal to the court again st illegal actions of state bodies, officials, public associations" [2]. Analogous protection is provided by Article 8 of the Labor Code of the Republic of Uzbeki stan (hereinafter referred to as the Labor Code): "Everyone is guaranteed protection of labor rights, which is carried out by the bodies of supervision and control over the observance of labor legislation, as well as by the bodies for consideration of labor disputes" [3].
As V.M. Tolkunova notes, "labor disputes are contradictions of subjects of labor law aimed at the consideration of the jurisdictional body on the application of labor legislation or on the e stablishment of new working conditions in partnership" [4, P.89]. At the same time, labor disputes can be classified according to the following criteria:
Fir stly, depending on the number of persons, they are divided into individual and collective. It should be noted that the Labor Code provides that both the Labor Dispute Commission (hereinafter LDC) and the court consider individual labor disputes, which are disagreements between the employer and the employee on the application of legislative and other labor regulations, working conditions stipulated by the labor contract. Collective labor disputes should be di
stinguished from these disputes, which are disagreements between the employer (association of employers) and collectives of workers (their representative bodies) regarding the e stablishment of changes in exi sting working conditions, the conclusion, amendment and implementation of collective agreements. It is important to remember that if this type of dispute concerns the intere st of employees, they are considered without going to the courts. However, if a dispute arises over the application of legislative and other normative acts on labor, including collective agreements, local acts adopted by agreement between the employer and the trade union committee or other representative body of workers are subject to judicial review.
Secondly, labor disputes can be classified based on which body will consider them. As mentioned above, there is a way to protect violated labor rights by contacting dispute resolution bodies. Such bodies are not only courts. The Labor Code includes the LDC among them. Article 269 of the Labor Code provides for a li st of cases and categories of cases that are considered directly by the court:
1. If a labor dispute commission has not been created at the employee's place of work;
2. On rein statement at work, regardless of the grounds for terminating the employment contract, on changing the date and wording of the grounds for terminating the employment contract, on payment for the time of forced absence or performance of lower-paid work;
3. On compensation by the employee for material damage to the employer;
4. On compensation by the employer for harm (including moral) caused to the employee by damage to his health during the performance of his job duties or to the employee's property;
5. On the refusal to hire in the cases provided for by the second part of Article 78 of the Labor Code;
6. On issues that were previously decided by the employer in agreement with the trade union committee or other representative body of workers.
The remaining categories of cases are considered by the LDC.
I would like to draw your attention to stati stical data which point out that in 2019, the courts of the Republic of Uzbeki stan resolved 4,233 cases on labor disputes, mo st of which were related to the collection of wages, rein statement at work and disputes arising from relations on compensation for harm caused by the employee to the employer. Such a number of cases in court sugge st that the mo st effective way to protect violated rights is protection from the judicial authority.
In fact, many practitioners - judges of civil courts point to this fact. This is evidenced by the following arguments.
Fir stly, the court is an independent body, including independent from the state and its bodies. This body cannot be put under pressure from both supervisory bodies, such as the prosecutor's office, and officials. Moreover, this interference provides for both admini strative and criminal responsibilities.
Secondly, some court decisions on some issues mu st be immediately executed by all state bodies, public organizations and citizens. According to Article 273 of the Labor Code, a court decision on the rein statement of an employee with whom an employment contract was unlawfully terminated, as well as on a change in the formulation of the grounds for termination of an employment contract, or a decision of a labor dispute resolution body to rein state an employee who was illegally transferred to another job, is subject to immediate execution. In the event of a delay in the execution of a court decision in these cases, the court may issue a ruling or a decision, respectively, to pay the employee the average earnings or the difference in earnings in full for the entire period of the delay.
Thirdly, an advantage for the employee in the judicial protection of rights is exemption from the payment of state fees and other legal co sts, in accordance with Article 277 of the Labor Code, which allows the employee to apply to this body without any ob stacles.
However, among practitioners - the judges of the Supreme Court of the Republic of Uzbeki stan, the opposite opinion has developed. They believe that the resolution of labor disputes in the framework of judicial procedures is often not the optimal means for the parties to resolve the conflict. The arguments for their state are the following:
1. Often results in high legal co sts;
2. Causes irreparable harm to interpersonal or business relationships;
3. Gives unwanted publicity to the circum stances of the dispute [5, P.7].
In this regard, one of the priority tasks in civil proceedings for the consideration of labor disputes is the goal of reducing the number of disputes submitted to the courts of general jurisdiction. Also, the que stion of the possibility of resolving cases in the process of the reconciliation procedure (mediation, negotiations, etc.) is becoming relevant. Furthermore, we cannot but agree with this, for the reconciliation of the parties in pre-trial procedures takes place in mo st countries of the world, for example, the USA, England, Spain, Italy, Switzerland, Japan, Au stralia, Czech Republic, Hungary and Bulgaria. In Germany, individual labor
dispute proceedings begin with binding attempts at conciliation. Such a conciliatory procedure can be quite effective, since according to stati stics, about 80% of labor disputes are resolved in the process of conciliation, and only about 20% of disputes are referred to a court [6, P.29].
As judicial practice shows, on the part of employees, a large number of mi stakes are made, both procedural and material, which do not make it possible to make a decision in order to protect the violated right of the employee. While conducting a survey among the judges of the interdi strict court, it was found that the mo st common cases of refusal to satisfy claims is missing the deadlines, which are provided for in article 270 of the Labor Code:
1. For disputes about rein statement at work - one month from the date of delivery to the employee of a copy of the order to terminate the employment contract with him;
2. In disputes on compensation by the employee for material damage caused to the employer - one year from the date of discovery by the employer of the damage caused;
3. For other labor disputes - three months from the day the employee found out or should have found out about the violation of his right.
I would like to draw your attention to the fact that the draft of the new edition of the Labor Code increased the period of going to court in two categories of cases:
1. In disputes about rein statement at work - three months from the date of delivery of a copy of the order to terminate the employment contract with the employee;
2. For other labor disputes - six months from the day the employee learned or should have learned about the violation of his right[7].
Increasing the term in the draft of the new edition of the Labor Code of the Republic of Uzbeki stan is a correct action since this is a chance for the employee so that the court can make a decision that could protect the employee's rights.
One of the examples of missing the deadline is civil case №. 1-1553 / 8319/20 [8], in which the state labor inspectorate for the intere sts of M.M. Vohidova, as a defendant Tashkent Specialized College for Persons with Disabilities. The plaintiff in his statement of claim demanded to re store M.M. Vohidov as a teacher of this in stitution, with whom the employment contract of clause 1 of part 2 of Article 100 was terminated. It is important to pay attention to the timing: the statement of claim was filed and adopted on November 19, 2019. on the corresponding action was adopted on Augu st 31, 2019.
Based on the fact that the one-month deadline was missed (the statement of claim had to be filed before September 31, 2019) and there were no applications to re store the missed deadline in the case, the court decided to dismiss the claim.
The Labor Code and Resolution of the Plenum of the Supreme Court of the Republic of Uzbeki stan "On the application by courts of legislation governing the termination of an employment agreement (contract)" indicate that the terms specified in Article 270 can be re stored due to the presence of only valid reasons. At the same time, in the current labor legislation of the Republic of Uzbeki stan and in the current Resolutions of the Plenum of the Supreme Court of the Republic of Uzbeki stan, there are no circum stances that can be regarded as valid.
For example, in accordance with the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 № 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation", circum stances that prevented this employee from timely filing a claim with the court for resolution of an individual labor dispute (for example, the plaintiff's illness, his being on a business trip, the impossibility of going to court due to force majeure, the need to take care of seriously ill family members) [9].
In this regard, it is necessary to display these valid reasons for missing the deadline either in the labor legislation of the Republic of Uzbeki stan or in the Resolution of the Plenum of the Supreme Court of the Republic of Uzbeki stan, so that the court, when considering cases on the re storation of the deadline, could know which circum stances are valid, as well as to make fewer mi stakes, when making decisions.
Today, the judiciary is not the only sy stem that can protect workers' labor rights, since in the Republic of Uzbeki stan, several state bodies' authorities include taking protective measures in case of violation of the rights of an employee. For example, supervision and control bodies are represented by the prosecutor's office, the State Labor Inspectorate.
However, it is important to note that the current legislation does not differentiate when it is necessary to apply to the supervisory and control body, for example, to the state labor inspectorate in case of violation of labor rights, and when to the judicial authority. Therefore, the correct solution to this problem would be to amend the Regulations on the State Labor Inspection in the form of an explanation that the State Labor Inspectorate can take the measures provided for by the Regulations (issue a warning, etc.) in the event of a clear violation of labor legislation (for example, upon termination
labor legislation with a pregnant woman, etc.). If illegal actions require an assessment of evidence, then a person needs to go to court.
Based on the foregoing, it can be concluded that, being a right enshrined in the Con stitution of the
Republic of Uzbeki stan, the right to judicial protection is fundamental in the human rights sy stem, and therefore the duties of the judiciary should be performed based on the principles and tasks enshrined in the legislation on the judiciary authority.
References:
1. Amaglobeli N.D., Labor law. Textbook. Amaglobeli N.D., Hasanov K.K., Rassolov I.M. - M .: UNITY-DANA. 2014. - 563p; Available at: https://www.cyberleninka.ru;
2. Con stitution of the Republic of Uzbeki stan dated December 8, 1992, Narodnoye Slovo, 12/15/1992, № 247 (438), National legislation database, 05.09.2019№ 03/19/563/3685. Available at: https://www.lex.uz/acts/35869/ ;
3. Labor Code of the Republic of Uzbeki stan dated December 21, 1995, Bulletin of the Oliy Majlis of the Republic of Uzbeki stan, 1996; National database of legislation, 04.12.2019^, № 03/19/586/4106 Available at: https://lex.uz/docs/145261/ ;
4. Tolkunova V.N., Labor law: a course of lectures. - M: LLC, TK Welby, 2003. - 262p;
5. Yodgorov H., Ziganshina G., Akhatova Sh., Disputes arising from labor relations - a practical guide /. -T .: Baktria press, 2017.- 192p.;
6. Ko styan I.A., Piskarev I.K., Shelomov B.A., On specialized courts for labor cases and the Labor Procedure Code, Economy and Law. - 2003. - No. 8., 29- 31p Available at: https://cyberleninka.ru/;
7. The draft of the new edition of the Labor Code of the Republic of Uzbeki stan ID-7609. Available at: https:// regulation.gov.uz;
8. The archive of Mirzo Ulugbek Interdi strict Court for Civil Cases of Tashkent for 2019;
9. Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation, LRS Consultant Plus. Available at: http://www.consultant.ru/.
