Constitution, Labour Law and Matters of Social Justice

Aleksandr M. Kurennoi, Doctor of Law, Professor, Head of Labour Law Department of the Law Faculty, Lomonosov Moscow State University, Moscow, Russia

The article focuses on the most important aspects of such a phenomenon and such a category of law as justice that is applied to the most important sphere of life — to labour relations. The article touches upon the ‘most vulnerable’ spots and puts forward some solutions how to cope with them.

Key words: Constitution, justice, a principle of law, decent labour, legal regulation of labour relations, payment for labour, workers’ participation in management.

Russia has recently celebrated the 20^th anniversary of the current Constitution. This event gives an incentive to analyse some achievements of constitutionalism and the development of the legal system in Russia as a whole, as well as constitutional basis of labour law and social welfare. At the same time, it is necessary to determine (at least, in general terms) prospects of legal regulation development in such an important part of public life and of every person’s life as the sphere of labour and social welfare.

Recently, there has been a lot of speculation about justice – as one of the cornerstones – that provides the stability of the society and the state.

Thus, the RF President in his address to the Federal Assembly on December 12, 2012, noted in particular that

“…the responsibility for the country is formed not by slogans and words, but when people see that the government is transparent and accessible and that officials work hard for the sake of their country, the city, the region, the village and every person and take into account public opinion. Government should not be an isolated caste. Only in this case, can we speak about steady moral grounds to create and establish order and freedom, morality and civil solidarity, truth and justice, nation-oriented consciousness”[1].

At the same time, experts from different branches of knowledge understand the term ‘justice’ differently. Some of them consider that it is a term which obviously has an evaluative character, that it cannot be a strictly determined legal category, and that it mostly refers to the sphere of morality. In particular, they point out that the RF Constitution mentions such a term only once – in its preamble and in connection with “the memories of ancestors”.

In fact, a formal linguistic analysis of the text of the Constitution preamble gives grounds to make such a conclusion, because the preamble says that the multinational people of the Russian Federation, “revering the memory of ancestors who passed over to us love and respect for the home country, faith in good deeds and justice” (among other things), adopt the RF Constitution. Since this term is nowhere else used in the text of the Constitution, some experts call it “a political statement” which has no legal ground.

Thus, the authors of one of the commentaries to the RF Constitution claim that “in the domestic theory of law, the provisions of the preamble are traditionally not given any legal force”, and at the same time, the authors of the preamble mention that “in the great variety of domestic history they choose the most positive part – “faith in good deeds and justice”. Such a move defines the preamble as a political document because law can establish neither the good nature of deeds nor justice; it performs other social tasks”[2].

The scope of this article does not give enough room for deep theoretical deliberations, therefore, I will just say that I do not share such a viewpoint. Like many other authors, I think that the preamble, being an integral part of such an important document as the Constitution, “does have legal force”. The statement that the “inside” of a legal document (and the Constitution is one) has some “legal” and at the same time some “non-legal” (declarative?) parts looks rather strange.

The problem of justice in a society structure has undoubtedly been an issue always faced by the humanity. At present, the category of justice as a subject of a scholarly analysis has been studied almost by all spheres of the humanities: sociology, psychology, economics, politology, etc. Moreover, such research is more practical than purely theoretical or speculative. Special attention to problems of justice is paid by the legal doctrine and practice[3].

Any law student knows that the word ‘law’ comes from ‘justice’ and that law is the art of good deeds and justice. It is obvious that legal categories are interconnected with moral categories. If the adopted laws do not correspond to the moral principles dominant in the society, the members of such a society will never voluntarily follow such laws or, if they do, they will do it formally, without contributing to the effective functioning of such a society.

We should take into account the fact that the RF Constitution stipulates not only the faith in good deeds and justice, but provides for certain legal mechanisms of justice implementation as a regulatory principle. The principle of justice seems to permeate the normative contents of the Constitution, thus reflecting the spirit of the Supreme Law[4].

Experts from different branches of law say that this situation is reflected both in the articles of the Constitution and numerous decisions of the Constitutional Court of the Russian Federation, which regularly refers to the constitutional principle of justice while passing its decisions.

We think that this principle must be recognised as an inter-branch principle of the Russian legal system, and it must directly influence the process of the system’s formation and functioning in time and space.

Certainly, the degree of effective application of this principle in practice is far from being ideal, which this does not mean, however, that this principle should be abandoned.

I share the viewpoint under which such a (non-positivist) type of understanding and such an essential description of legal principles are dominant in the RF Constitution, the preamble of which determines the value methodology of explanation and interpretation of the constitutional provisions, including those provisions of the constitutional system that have the supreme legal force. The preamble is an integral part of the RF Constitution and has both strong moral force and legal force for legislative and executive branches of power; and the courts must consider the preamble as a test to check whether the constitutional provisions in sections, chapters and articles of the RF Constitution are adequately interpreted[5].

All these theoretical approaches are critically important for Russia as a social state and for such socially significant branches of the Russian law as labour law and the social security law. The above mentioned address of the RF President to the Federal Assembly on December 12, 2012 says that the tradition of a strong state is very typical of Russia. Therefore, it is the state that has to meet such social demands: to guarantee civil rights and justice (italicised by the author – A.K.).

Justice can be considered from different angles; however, to legally analyse such a phenomenon, we should take into account the so-called “commutative justice” which includes the principle of legitimate expectations and presupposes legal definiteness of the status of participants in public relations. First, such legal definiteness is reflected in the non-contradictory nature of the legal regulation of their rights and obligations, and second, in the inadmissibility of arbitrary changes in “the established rules of the game”[6],

Then it is necessary to consider some (just some!) aspects of the Russian labour law, trying to consider them from the viewpoint of justice. Since the scope of the materials does not allow us to give a thorough analysis, we will give just a general review of “the vulnerable spots” of legal regulation of labour relations connected with hired labour which require an in-depth study by all the participants of relations (the author and his colleagues have repeatedly spoken about such a necessity).

The problems of decent pay have recently been widely discussed. The implementation of this concept is one of the main tasks of the International Labour Organization. It is extremely important because most working population in practically all countries of the world can only support themselves and their families by performing certain functions on the labour market.

In the XXI century, it is not, probably, necessary to say that people must be able to demonstrate their abilities in adequate and decent conditions. However, the practice shows a different picture. It probably least concerns countries with developed market economy (though they have their own problems to solve) but for such countries as Russia, which are still on the way to classical market economy, such problems are of primary importance.

One of the components of decent labour is the implementation of the right to labour in “adequate conditions” – adequate from the technical, technological and social viewpoint.

What do we have in this respect? A persistent desire of employers realised through legal acts at different levels, to avoid additional guarantees to employees to compensate difficult, harmful or unsafe conditions – to avoid both the pay for employees’ labour and the inclusion of such extra payments in the minimum statutory monthly pay (MSMP). At the same time, there is shortage of workforce in these spheres and unsuccessful attempts to “modernise” the system of retirement benefits for such categories of workers. But innovations are necessary not only in “the white-collar” sphere.

Specialists have long been discussing the problem of the MSMP structure, its correlation with the subsistence minimum; however, the problem is far from being solved. Yes, some regions of Russia are trying to solve these issues, but the federal level (at which the MSMP is established in most regions) provides for such a correlation which is not in favour of the subsistence level. We seem to ignore the fact that in accordance with international standards, the MSMP is a level of pay for unskilled labour. Unskilled! Russia establishes the MSMP as a “tariff” part of wages while other payments are made through stimulating incentives.

The budget sphere (for example, in educational establishments) quite often increases payments through “seeking for internal reserves” – first of all, by cutting the staff and increasing the workload for other teachers that consequently does not lead to better quality of teachers’ work because any teacher with any qualification should have time for self-improvement, preparation for classes, development of new forms of training, etc.

From the viewpoint of justice, a huge difference in pay for the work of average employees and of top-managers can hardly be justified. On the one hand, the state is not entitled to interfere with the system of pay for the work of a particular employer, but on the other hand, it should not become a bystander in the case of such disproportions. At least, the state can act when it is an employer itself or it has an opportunity to influence the decision-making process through boards of management of economic entities (let alone state corporations). “Gold parachutes” of top-managers (including the state corporations, entities with the participation of the state) have much been spoken about and have attracted the attention of legislative and executive authorities. Unfortunately, the response is too slow. In Switzerland, for example, this issue was raised at the national referendum (in March 2013) and solved not in the favour of top-managers.

This situation can be accounted for by the high degree of non-disclosure of information so typical of almost all Russian companies. Employees of such companies may protect themselves through their representatives, but the Russian legislation does not give many opportunities for that.

Thus, pursuant to Art.52 of the RF Labour Code, the right of employees to participate in the management of the company directly or through their representative bodies is regulated by the Labour Code, other federal laws, constituent documents of the organization, collective agreements, contracts. There seems to be  enough space to get employees involved in the management of the company, but… federal laws regulating the activities of the limited liability company (LLC) and joint company (JC) refer to the companies’ bylaws; however, you can hardly find any LLC or JC that have included such provisions in their charters.

The RF President Decree No.597 of May 7, 2012 provided for a possibility to solve this problem. The decree “On Measures to Implement the State Social Policy” asked the Government to prepare the proposals to amend the RF legislation in terms of changes concerning the creation of production councils and their powers. Among other things, the idea was to borrow the experience of Germany when employers in some cases (and such cases are quite a few) are obliged to include the employees’ representatives in the company’s management bodies.

As a result, Federal Act No.95-FZ of May 7, 2013 introduced some changes in Art.22 of the RF Labour Code. In accordance with these changes, the rights of the employer have been expanded by giving them  the  right to set up a production council – an advisory body created on the voluntary basis from the employees of the organization, who, as a rule, have certain achievements in their sphere and whose function is to prepare proposals on how to improve the production activities and particular production processes, introduce new technologies and new equipment, increase labour productivity and upgrade  employees’ skills. The scope of powers, the constitution and activities of the production council and its cooperation with the employer are established by local normative acts. The powers of the production council may not include such issues the solution of which, in accordance with the federal legislation, is the exclusive jurisdiction of the company’s management bodies. Besides, the powers of the production council may not include the issues of representation and protection of social and labour rights and interests of employees. In accordance with the Labour Code and other federal acts, the solution of such issues is within the jurisdiction of vocational unions, relevant primary trade union organizations and other employees’ representatives. The employer is obliged to inform the production council of the results of examination and implementation of  the  council’s proposals This provision of the RF Labour Code is incorporated into the article on the employer’s rights (not even in the Social Partnership Section). So, there is a logical question: who prevented competent employers from creating such councils before the introduction of changes into the Labour Code? The effectiveness of such a solution seems doubtful. It should be said that trade unions also did not demonstrate enthusiasm in the logical sequence of events – probably, they saw such councils as their competitors.

It should be noted that not only employees but employers as well often raise issues of justice in labour relations. And this is quite understandable. If a person invests his own money in his business, he must have the right to choose the staff that will contribute to the development of the business, but not interfere with it. Thus, for example, a manager unable to work with clients may not only frighten off all of them, but can also spoil the reputation of the company. How to get rid of such a manager? This may sometimes be extremely difficult. It does not mean that the problem can be solved if the employer is granted the exclusive right to rid of any employee. However, the employer may have such a right if he agrees to pay certain social benefits to the employee (for example, 2-3 average monthly payment). Naturally, such an obligation occurs if the employment contract has been terminated without the employee’s guilt. Most employers (at least, they say so) would be ready to pay. Anyway, why can a person get a divorce (for example, if the other spouse is ready to pay a significant compensation or alimony), but cannot fire an employee who he can no longer work with?

Many institutes of labour law can be analysed from the viewpoint of justice. However, that does not mean the necessity to immediately “rewrite” the RF Labour Code. The more so that the solution of many issues requires a comprehensive approach – with the involvement of other branches of law (tax, civil and others). The topic of justice is truly inexhaustible, so in this case, we have just tried to draw specialists’ attention to this issue. We hope that representatives of different branches of law will also pay their attention to this issue. Neglecting the issues of justice in the social and labour sphere can be an unexpected catalyst in the development of the society.

Bibliography:

1. B.S. Ebzeev. Kommentarii k preambule konstitutsii RF // Kommentariy k Konstitutsii Rossiyskoii Federatsii [Commentary to the RF Constitution Preamble // Commentary to the Constitution of the Russian Federation]. Edited by V.D.  Zorkin, L.V. Lazarev. Eksmo, Moscow, 2009, p. 39.
2. Konstitutsiia Rossiyskoii Federatsii. Nauchno – prakticheskii kommentarii (v stat'yakh) [Constitution of the Russian Federation. Scientific and Practical Commentary (to articles) // edited by Y.A. Dmitriev. Yustintsinform, Moscow, 2007.
3. M.V. Presnyakov. Konstitutsionnaia kontseptsiia printsypa spravedlivosti [Constitutional Concept of the Principle of Justice]. DMK Press, Moscow, 2009.