The Development of Russian Labor Law.
The economic and political reforms of the 1990s presented numerous challenges for Russian labor law. In the immediate wake of the reforms, Russian labor law preserved much of the legacy of Soviet norms, and therefore found it difficult to navigate labor relations in its transition toward a market economy. Policy makers adopted changes to the 1971 Code of Labor Laws, which marked the beginning of the movement to eliminate excessive employee protections, to promote equality, and to develop social dialogue. In particular, the special law on collective agreements was enacted to guarantee social dialogue. (1)
Following the dissolution of the USSR in 1991, new principles in industrial relations were proclaimed. This new vision for industrial relations stood in contrast to its predecessor, which was a code of labor laws adopted in 1971, during the Soviet era. The purpose of the new framework was to establish the foundation of a labor law geared toward the market economy. It introduced the right to collective bargaining and the right to strike as the basis for collective labor law. For individual labor law, the prohibition against discrimination was a cornerstone. These were important values borrowed from Western patterns of labor law with the aim of ensuring workplace democracy and equality. Along the way, adjustments have been made to the Soviet Code of Labor Laws, which was changed 17 times between 1991 and 2001. The current Labor Code (LC) has been amended 111 times since its adoption in 2001.
In this paper, I am going to consider whether these underlying principles took root in Russian labor law, and if they are indeed reflected in the resulting regulation, as was its intention. The choice of subject for this historical-legal research was driven by the desire to determine the success in implementing these principles, which were alien (or perhaps more appropriately described as hostile) to the historical legal culture of Russia.
This paper consists of three parts. The first section offers a general reflection upon Russian legal culture, which is critical to a proper understanding of the background of labor law developments. The second section is dedicated to an analysis of the right to strike in Russia as a prerequisite to the right to collective bargaining, and as an indicator of the efficiency of the social dialogue system. The final section explores the implementation of the prohibition of discrimination in Russia.
A General Background for Understanding Labor Law Development in Russia
Russia is a riddle wrapped in a mystery inside an enigma. --W. Churchill
As fairly noted by Peter de Cruz, Russia is the most complex and contradictory of countries. (2) Technically, it belongs to the Romano-German group of countries. It has adopted many international charters, conventions, and declarations. However, the rules of legal development, the influence of law on social conscience, and the implementation of international legal provisions in Russia are quite different from other European countries belonging to the same tradition.
Some scholars describe the Russian legal system as being in transition. (3) While this definition may have been accurate at the end of the 1990s, it now seems outdated. It would be an oversimplification to assume that the Russian legal system is in transition compared to other European legal systems. As Gordon B. Smith maintains, in establishing a "State of Law," Russia must over come not only three-quarters of a century of communist rule but also several hundred years of legal underdevelopment under the tsars. (4)
The numerous scholarly studies emphasizing the "apartness" of the Russian legal tradition are persuasive. (5) N. Trubetskoi, for example, surmised that Russian statehood was equally influenced by non-Slavic peoples. He especially accentuated the influence of Genghis Khan's empire. (6) Other researchers attempt to explain this "apartness" by referring to more recent factors, such as the influence of Soviet law on the modern legal system, (7) and the general weakness of the Russian legal tradition. (8)
Nevertheless, scholarly interpretations of this "apartness" leave considerable room for exposition. One thousand years of despotism and uncertainty over whether to follow the European way of development or to forge Russia's own path, and the legacy of Orthodox consciousness, are crucial yet often overlooked elements that help to explain Russia's distinctive legal culture. The body of literature related to this topic reveals three tightly connected pillars of Russian cultural originality that to this day continue to influence the perception of legal norms as well as their implementation in the field of labor regulations and in numerous other fields. These three pillars are:
1. geographical (9)--Russia's unique location in the borderlands between Europe and Asia has exposed it to a consequent diversity of influence in which its inherent Eastern collectivism clashes with the individualistic values of Western legal cultures;
2. religious (10) 11--Eastern Orthodoxy contributed to the Russian tolerance for authority by promoting the idea of the leader as one appointed by God and instilling a belief in the virtue of sacrifice for the sake of future generations or the afterlife; and
3. political (11)--Russia's long history of despotism and serfdom, which ended only in the 19th century, totalitarianism in the Soviet era, the traditional contraposition of the collective and the individual, and the widespread idea of the individual's obligations to society. The latter is cultivated both within the family and through public education. As early as the 1920s, Evgenii Zamiatin aptly described such a society and its attitude toward the rights of individuals: "Even the ancients (the most mature of them) knew that the source of right was--might! Right is a function of might. Here we have our scale: on the one side an ounce, on the other a ton. On one side "I," on the other "we," the United State. Is it not clear? To assume that I may have any "right" as far as the State is concerned is like assuming that an ounce may equilibrate a ton in a scale! Hence the natural distribution: tons--rights, grams--duties. And the natural road from nothingness to greatness is to forget that one is a gram and to feel that one is one-millionth of a ton!" (12) Indeed, Russian scholars note that under Russian absolutism, individual expressions of personality were dissolved into such concepts as "soldier," "peasant," or "official." (13) Personal existence depended mostly on belonging to one of these particular groups, and the rules of this existence were dictated by these groups. The Soviet era provides a perfect example of this phenomenon wherein individual rights were dissolved into and superseded by collective goals.
For a long time after the fall of the USSR, Russian society remained without an official goal. It was devoid of an official ideology. This new ideological vision could have been formed on the basis of respect for human rights--as proclaimed in the 1993 Constitution--but instead, the atmosphere of the "wild" market economy placed money on a pedestal. After the adoption of the new Constitution, the country's legislation was changed under the model of so-called "states of law," and Russia was declared to be a state of law. However, although the "market and the state of law live and die at the same time," they were not born at the same time. (14)
The principles of social dialogue and protection from discrimination are listed as inherent to the state of law. They were proclaimed both in the Constitution and in the Labor Code. Despite this official proclamation, as I will try to demonstrate, the state lacked the will to create effective norms corresponding to these principles. Further, it failed to maintain a judiciary capable of protecting them.
In the third and fourth parts, I delve deeper into this discussion. There, I consider the attempts of the state to bring labor legislation into line with these new principles and answer the question of whether a clear and precise mechanism for implementation was created.
Social Dialogue, Collective Bargaining, and the Right to Strike
The attempt to promote social dialogue and provide more room for collective bargaining was one of the main vectors of labor law reform. Much legislative work has been done toward this end. The Labor Code regulates the forms and levels of social partnership. It outlines procedures for collective bargaining and stipulates guarantees for employees who represent the interests of workers. The current legislation is equipped with a coercive mechanism for ensuring the right to collective bargaining. This right brings with it several corresponding duties imposed upon the other party. These are: to enter into collective bargaining negotiations once they have been initiated, to conduct them in accordance with the procedure established by the Labor Code of the Russian Federation, and to bargain in good faith, being respectful of and considering the interests of both parties. (15) Accordingly, thousands of collective agreements have been adopted on the different levels of social partnership. (16)
It is important to note that this has not been a complete success. An analysis of many collective agreements concluded at the local level reveals that these agreements mostly secure the guarantees which are already provided for in the Labor Code. (17) Only organizations representing the most potent sectors of the economy, such as Gazprom, Rosneft, Aeroflot, and Russian Railway, have negotiated collective agreements that enhance the level of social protection for workers by providing them with broader protection than that prescribed by the labor legislation. (18)
The observed state of collective agreements, which confer upon workers barely any more protection than that already provided by state legislation, demonstrates that workers have little bargaining power. (19) The right to strike is an instrument that provides the potential for increased bargaining power. It is effectively a guarantee for workers to be heard by their employer. As noted by Kahn-Freund, if the workers cannot in the last resort collectively refuse to work, they could not cannot bargain collectively. (20) This citation is very real for Russia, as the shortcomings in its industrial relations regulations and the ambiguity of case law prevent the practical realization of both rights.
2.1 Russian Provisions on the Right to Strike
Article 37 of the Russian Constitution proclaims the right to strike, among other basic labor rights. (21) However, as I will demonstrate, the law's provisions are rather hostile to the actual realization of this right to strike. The Labor Code--in addition to other regulations--provides a very broad list of professions and occupations where striking is prohibited due to the need to protect the public interest. (22) This approach was summarily criticized by a number of international bodies. (23) The resulting amendments to the Labor Code in 2006 and 2011 were partly in line with the conclusions of the Committee on Freedom of Association of the International Labor Organization (Cases No. 2216 and 2251). (24) It is important to note that a number of particularly important ILO concerns, among them excessive limitations on the right to strike, remained unanswered. (25)
The lack of reaction from the state to international inquiries and critiques shows that it is unwilling to narrow the borders of its interest and leave more space for the protection of the collective rights of workers. Many Constitutional Court decisions illustrate this prerogative. For example, one such decision upheld a prohibition against striking that was enforced upon railway workers and civil aviation personnel engaged in traffic control. Here, the Court ruled that this was not to be considered a violation of the constitutional right to strike. (26)
As previously stated, the success of social dialogue depends largely upon the ability of workers to access the right to strike. This notion is crucial for Russian labor law as, being very narrow, it fails to address a number of labor relations issues.
The Labor Code defines a strike as the workers' temporary and voluntary refusal to fulfil their work duties (entirely or in part), with the intention of settling a collective labor dispute. (27) Thus, it strictly frames a strike as industrial action that is in connection with a live labor dispute. A strike that occurs in cases of non-payment of wages, or to ensure better protection of occupational health, for example, cannot be found legal as it is not considered to be a matter of collective dispute.
According to the ILO Freedom of Association Committee, such a narrow interpretation does not conform to ILO Conventions N 87, 98. (28) The present legislative definition of the right to strike is yet another illustration of labor law's failure to realize its proclaimed objectives. Although legally recognizing this right, policy makers structured the framework in a manner that would impede its implementation. For instance, engaging in strike action is only possible after passing all the procedural stages of collective dispute resolution. According to the experts' calculations, the duration of all mandatory preliminary procedures might amount to 42 days. (29)
The decision to declare a strike shall be taken by a "meeting (conference) of employees of an organization (branch, representative office, or another detached structural unit)." (30) The meeting of the employees of an organization is deemed competent if it is attended by at least half of the total number of employees. Where the employees are represented by their elected delegates, such conference is deemed competent to declare the strike if attended by at least two-thirds of workers' delegates. (31)
In practice, these requirements create several problems. Firstly, they render any strike at an occupational or professional level impossible, as we can hardly imagine an organization where the half of the required employees represent the same profession, and the strike will be illegal if supported by less than the requisite number of employee attendees. The ILO Committee on Freedom of Association was concerned by these barriers to collective bargaining at the occupational or professional level, both in law and in practice. (32) The same concern arises with respect to the realization of the right to strike on these levels.
The second problem is rooted in the quorum requirements. The lack of definition of what is deemed under "another structural unit" where the strike may be declared has led to ambiguity in the case law. As the legislation fails to define this notion, it leaves the interpretation of the criteria that determine a "structural unit" to the courts. An examination of the relevant case law does little to eliminate this confusion. The Supreme Court has stated that the structural unit should obtain such "a degree of autonomy that ensures that its activity is autonomous from the main organization and which, in the event of a strike by the employees of such a division, would ensure the continuation of the activity of the entire organization." (33)
The Supreme Court's approach demonstrates that the narrow interpretation of "structural unit" merely serves to restrict the right to strike for the majority of workers. Lower courts seem to have followed in the Supreme Court's footsteps, deciding these cases in a manner requiring an almost impossible level of autonomy from the unit in order to establish that its workers had the right to declare a strike. (34)
There is yet another problem in the strike initiation procedure. The workers must notify the employer of a forthcoming strike in writing and at least five working days in advance. The LC lists a number of procedural elements which should be present in a decision on strike. Failure to mention any of them, or any administrative errors made by the workers' representatives in this document, will result in the strike being declared illegal per se. In these cases, the courts do not investigate either the seriousness of the procedural violation nor the proportionality of the effects of declared illegality to the violation (article 413 LC). (35)
Any workers' representative body that announces a strike and fails to halt it after it has been declared unlawful must compensate the employer for the losses incurred by the unlawful strike. This norm has a chilling effect on the exercise of the right to strike, particularly considering the lack of foreseeability and the intricate procedural requirements in question.
2.2. Reflections on Statistics
In the following table I have gathered information on the number of official strikes provided by the Rosstat, information on stop-actions organized by workers gathered by the NGO "Center for Social and Labor Rights," and recent judicial statistics concerning employer applications to have strikes declared illegal.
Year Official Non-official Applications for the statistics data of declaration of strike on strikes (36) stop-actions (37) as illegal brought before the courts (38) Number of dismissed applications/number of satisfied 2005 2,575 -- -- 2010 -- 88 10/24 2012 6 95 8/19 2014 2 97 0/10 2015 5 168 -- 2016 3 158 --
These data points demonstrate that right-to-strike regulations make the legal strike almost a "mission impossible" for trade unions. The table also illustrates that there exists a great tension between labor and capital, which results in a disproportionate number of illegal protests, as the legal procedure remains far too complex and strict, for the reasons mentioned above.
2.3 The State's Inconsistency toward Trade Unions
The negative attitude of Russian authorities toward the realization of the right to strike is perhaps the most important conclusion of the statistics' analysis. This can be explained by reference to the political peculiarities of the Russian legal culture discussed in the first section of this paper. The strike is perceived by the authorities as a negative, as evidence of disobedience. These events are often silenced by the official media and/or supressed by authorities. (37) In this context Russian scholars frequently cite the words of Vladimir Putin, who once said about strikes in the form of blocking railways, "Those who will sit on rails will sit." (38) In Russian, the verb sit is also used to describe imprisonment. The message was rather clear.
Recent occurrences evidence the state's growing hostility to strikes. In 2017, a regional news program reported the following: "In the Zlatoust, law enforcement authorities/security forces held a training exercise to develop expertise in dealing with riots ... according to the scenario created for the exercise, a strike broke out in a Zlatoust transport factory whose workers hadn't been paid for several months." (39) Other manifestations of the state's attitude toward trade union rights include the criminal prosecution of trade union leaders, the declaration of their publications as extremist materials, and the prohibition of trade union leaflets addressing "Comrade workers!" and bearing the slogans "Against precarious employment" and "Let those who created the crisis pay for it." (40)
The recent dissolution of the Interregional Trade Union Workers' Association (ITUWA), a group famous for its strikes, provides further evidence of the state's hostility toward supposedly "disobedient" workers. The ITUWA was disbanded after the court determined that its receipt of financial support from abroad and engagement in political activities made it a "foreign agent." (41) The ITUWA, it should be noted, is one of the most powerful "alternative" unions in Russia.
The court in St. Petersburg affirmed the prosecutor's contention and declared the following to be political activities:
* the posting of publications on the website of the MPRA and on the social networking site Vkontakte in support of truck drivers' protests;
* the publication of materials supporting the campaign to amend the provisions of the Russian Labor Code regulating indexation of wages; and
* the publication of works criticizing public policy on import substitution, launched as a response to the sanctions. (42)
At the time of writing, the court's decision regarding the dissolution of this trade union had been repealed by the Supreme Court of the Russian Federation, which noted that the authorities might have chosen legal instruments other than liquidation for the achievement of their legitimate aim. (43) The Supreme Court's decision draws a line between justifiable and non-justifiable restrictions on trade union activities and provides a potential light at the end of the tunnel.
The dominance of traditional trade unions, which arose during the Soviet era, is another significant challenge to the effective realization of trade union rights in general, and the right to strike in particular. These "Soviet" trade unions are now united under the Federation of Independent Trade Unions of Russia (Federatsiia Nezavisimykh Profsoiuzov Rossii, FNPR), and are traditionally supported by employers and the authorities. The FNPR supported the draft Labor Code passed in 2001, which largely deprived alternative trade unions of legal protections, bargaining rights, and the right to strike. (44) The loyalty of FNPR trade unions is also expressed, as a rule, in avoiding strike actions.
Western researchers point to the dominance of such trade unions (representing approximately 23 million workers) (45) as a vestige of the Soviet era, determining the degree of unevenness in the playing field and the size of the gap that competing unions must close in order to overtake legacy unions. (46) It should also be noted that their dominant position can similarly be explained by the fact that many of the assets belonging to Soviet-era trade unions were transferred to them after the collapse of the USSR. These assets included not only offices but also printing houses, banks, cultural institutions, resorts, and hotels, with an estimated value of $6 billion and an annual income of $300 million. (47) The FNPR's comparatively favorable political alliances helped it to retain many of its assets. (48)
The reduced legal capacity of traditional unions contributed to their transformation into a resource for the administration, which uses them for effective personnel management (49) and as a resource for the authorities. It is an echo of Soviet-era trade unions and very far from the image of independent trade unions envisioned and articulated by the new labor legislation.
2.3. Results of State Inconsistency toward Social Dialogue
There is a direct link between the right to bargain collectively, which is the essential and most important part of the freedom of association, and the right to strike. Onerous procedural requirements, public support for loyal trade unions and repercussions for "alternative" unions, the politicization of the right to strike, and the general hostility of authorities to its implementation further exacerbate the power imbalance between labor and capital. These facts are evidenced by the state's indifference to maintaining a strong and independent system of social dialogue, rendering the enshrined principles more or less impotent.
The social dialogue in this circumstance is not merely superfluous. Collective agreements are widely used as an additional instrument for labor management, promoting the interests of employers rather than workers. In the last five years, the Labor Code has been amended in such a way as to give more space to collective agreements. In particular, the parties to social dialogue were given the right to derogate from certain state provisions in the field of working time regulations. For example, it is now possible to fix into the collective agreement provisions that permit increasing working time for workers in hazardous conditions as well as provisions for substituting compensation for additional paid leave for work in hazardous conditions. (50)
3. On the Way to Equality: The Evolution of Non-Discrimination in Labor Law
The prohibition of discrimination was an important innovation in post-Soviet labor law. The Labor Code of the RSFSR was amended in 1992 to incorporate rules prohibiting discrimination in employment and wages. More recently, the new Labor Code of the Russian Federation, adopted in 2002, prohibits discrimination in employment (the list of discriminatory grounds remains open). (51) It also allows for the possibility of claiming non-pecuniary damages where discrimination is proved.
Russian antidiscrimination laws comply, at least superficially, with the international standards adopted by the UN and ILO conventions. (52) The effectiveness of such norms depends largely on the level of respect for the rights of others throughout society and on the state's level of respect for the individual. Keeping in mind the peculiarity of Russian legal culture, its collectivist nature, and its aforementioned lack of respect for the individual, it is important to examine the effectiveness of the state's implementation of the non-discrimination principle. The questions to be answered are these: has labor legislation been reconsidered in light of this principle, and has an efficient mechanism for employee protection in the case of workplace discrimination been created?
3.1. Definition of Discrimination
The Russian Labor Code defines discrimination as the restriction of employment rights and freedoms or the receiving of any advantage on any grounds not related to the professional qualities of an employee (article 3). It does provide exceptions. These are: (1) if it is required by the nature and conditions of the work; (2) based upon the psycho-physiological characteristics of the organism; (3) climatic conditions; and (4) the presence of family responsibilities; as well as other grounds established by law for the special care of people who need enhanced social and legal protection. These definitions show that the notions of discrimination and differentiation are closely related.
Soviet labor law included a number of paternalistic norms providing special regulation of women's labor and the work of minors, perceiving the scope of differentiation in a very broad way. This approach was largely in line with international labor law as it developed in the first half of the 20th century. The 1990s brought with it a significant reconsideration of these special regulations for women's work, aimed at ensuring genuine equality. The German Constitutional Court, for example, declared unconstitutional the norms on the prohibition of night work for women, and the countries of the European Economic Community were called upon by the European Commission to denounce ILO conventions banning night work for women. (53)
In the Russian Federation, some protective norms were partly repealed, for example, the general prohibition against dissolving an employment contract with a pregnant woman, and the ban on night work. Some other protective norms were extended to fathers (e.g., the right to paternity leave, protection from dismissal on certain grounds, etc.). The role of the Constitutional Court has been crucial in this process. The Constitutional Court found, for example, that some norms providing differential treatment were unjustified. The corresponding provisions were held to be discriminatory and therefore invalid. A case in point is the abolition of norms regulating the maximum employment age for faculty deans or department heads in institutions of higher education, or the extension of protection from dismissal for fathers who have children under three years old (in cases where the mother is absent or is unemployed). (54)
However, a number of special provisions born in the Soviet era are still in force and lead to discrimination against protected groups in the labor market. This is particularly evident in the case of female workers. The list of prohibited jobs and professions for women remains in force. It was initially adopted in 1932, (55) reconsidered in 1978, (56) and finally approved by the Russian government in 2000. (57) The latest revision forbids the employment of women in 456 professions and jobs.
In the case of Anna Klevets in 2012, the Constitutional Court considered this list in light of the provisions in the Russian Constitution that pertain to equality. (58) The applicant, Klevets, was refused entry to study courses to become an assistant train driver, as this profession was on the list of jobs prohibited to women. Klevets claimed that the relevant provisions of the Labor Code were unconstitutional and that the list of restricted occupations was discriminatory. The Constitutional Court rejected her claim, stating that such a restriction was based on the necessity of protecting women's "reproductive health," though nowhere was the age of the appellant mentioned.
The same reasoning was used by the Samara Regional Court when it considered the case of Svetlana Medvedeva, who was denied employment as a motorist-helmsman. (59) This profession is also included on the list of prohibited jobs. However, legal provisions did not preclude the possibility of training for that profession. Medvedeva had earlier graduated from the Samara River Technical College, receiving the qualification of navigational technician. This case was brought before the UN Committee on the Elimination of All Forms of Discrimination against Women, which concluded in 2016 that prohibition of employment constituted discrimination. They recommended that policy makers ensure that labor regulations do not impede women's access to employment, nor base their remuneration upon gender stereotypes. (60) It is interesting to note that the same recommendation is found in the concluding observations of the UN Committee on Economic, Social and Cultural Rights adopted in 2011, but was left without any response on the part of the Russian Government. (61) In 2018 Labor Minister Maksim Topilin promised to revise the list of prohibited occupations for women in the near future, lifting some restrictions. Therefore the question of repealing the list is not considered. (62)
The famous case of Konstantin Markin provides yet another illustration of the lack of public will to ensure equality and to repeal provisions that lead to discrimination against certain groups. (63) Markin claimed before the Constitutional Court that the provisions of the Military Service Act, according to which only women are entitled to take three years of parental leave, were incompatible with the principle of equality set forth in the Constitution. The Constitutional Court rejected his argument as "non-performance of military duties by military personnel en masse must be excluded as it might be a detriment to the public interest." The Court was vague in its finding that "public interest" is to be more important than the individual's right to respect for private and family life.
Once again, we are faced with the counterposition of the "gram" of individual rights with the "tons" of public interest. Infringement of the right to respect for one's private life and of the principle of nondiscrimination is a high price to pay for the nebulous concept of "public interest."
3.2. Evaluating the Mechanism for Protection from Discrimination
The adoption of common principles prohibiting discrimination in employment relations in Russia has not been accompanied by systematic changes in labor law and in the corresponding civil procedure legislation. As a result, there are no norms conferring protection from indirect discrimination and no corresponding case law; neither are there norms conferring protection from victimization or moral harassment. The most significant failure on the part of the authorities is their reluctance to introduce rules that shift the burden of proof in cases involving workplace discrimination.
The absence of official court statistics regarding cases of discrimination makes it difficult to demonstrate the need for change. It should be noted that judicial statistics in the USA and the United Kingdom reflect the number of such cases. A manual search for discrimination cases in the decision databases of Russian courts uncovered hundreds of such cases. It appears that the absence of figures recorded in Russian official statistics is yet another sign of the administration's nonchalance towards the problem of employment discrimination.
Research reveals that of 85 cases alleging discrimination in employment considered by Russian courts in various regions over the last two years, evidence sufficient to prove workplace discrimination was possible in only three of them. In these cases, the applicants provided the courts with written documentation in which the employer had stated the reason for refusing to hire the claimant. These reasons were blatantly discriminatory.
These cases cite the applicant's disability, distance of their place of residence, and appearance. (64) My research shows that generally speaking written evidence is required to prove discrimination in Russia. It is also evident that written proof is not available in the majority of discrimination claims. In the cases just cited, it was only the employer's ignorance that led to a finding to award compensation to the victims of discrimination. We can only imagine how many potential discrimination claims are overlooked because of the lack of "evident" proof of discrimination.
The limited number of discrimination cases reflects the shortcomings of Russian civil procedure law. According to the Code of Civil Procedure, plaintiffs in civil cases (including discrimination cases) must provide evidence justifying their claim. (65) Some exceptions to the standard rules on the burden of proof have been made by the Supreme Court of the Russian Federation. For instance, in Art. 23 of Resolution No. 2 of 17 March 2004, "On the Application of the Labor Code of the Russian Federation," the Supreme Court states that the burden of proof must shift to the employer in alleged cases of unfair dismissal. In such cases, the employer must prove the existence of a legitimate reason for dismissal and must provide evidence of its compliance with the established procedure for dismissal.
As a result, a plaintiff claiming unlawful dismissal on discriminatory grounds should be able reasonably to expect the employer to provide evidence of the nondiscriminatory reasons that led to the dismissal. However, in other cases of discrimination (e.g., concerning the employment contract, equal pay, working hours, promotions, etc.) it is up to the claimant to produce evidence of discriminatory treatment. Such an approach complicates antidiscrimination protections and undermines their efficacy.
Russia's historical juxtaposition of the "tons" with rights and the "grams" with duties cannot be overcome simply through superficial changes in the legislation. There must be a process whereby the "gram" is treated with respect, where the state clarifies the borders of its interference with the individual's space and secures the same, and where the procedure for the protection of human rights is efficient and accessible.
Ronald Dworkin once wrote, "If the Government does not take these rights seriously, then it does not take the law seriously either." (66) In my opinion, the cases discussed in this paper indeed demonstrate that the state does not take seriously the basic principles of social dialogue and antidiscrimination that are enshrined in the new labor law. The respect for these principles can only grow in a system where the state and public institutions fully recognize the value of individual rights, and wherein they consider human dignity as the boundary of the state's intervention. They must be mature enough to perceive human rights not as a challenge to public interest but as its very foundation.
St. Petersburg State University
Law Faculty, 22 liniia Vasil'evskii Ostrov, 7
St. Petersburg, Russia
(1) Law of the Russian Federation No. 2490-1 "O kollektivnyh dogovorakh i soglasheniiakh," 11 March 1992, repealed in 2006.
(2) Peter de Cruz, Comparative Law in a Changing World, 2nd ed. (London: Cavendish, 1999), 200.
(3) Oriicii Esin, Hans Ulrich Jessurun d'Oliveira, and Wendy Maria Schrama, Critical Comparative Law: Considering Paradoxes for Legal Systems in Transition, vol. 59. (Deventer: Kluwer, 1999), https://www.ejcl.org/41/abs41-1.html.
(4) Gordon B. Smith, Reforming the Russian Legal System (Cambridge: Cambridge University Press, 1996), 1-2.
(5) M. Zakharova, "Le systeme du droit russe sur la carte juridique du monde," Revue international de droit compare 61, no. 3 (2009): 634; Adhemar Esmein, "Le droit compare et 1'enseignement du droit," Nouvelle revue historique de droit franqais et etranger 24 (1900): 445; J. H. Wigmore, A Panorama of the World's Legal Systems (Chicago: Saint Paul West Publishing, 1928), cited from Csaba Varga, Comparative Legal Cultures (Budapest: Szent Istvan Tarsulat, 2010), 52.
(6) Nikolai Trubetskoi, Vzgliad na russkuiu istoriiu ne s Zapada, a s Vostoka (Moscow: Direct-Media, 2015), 21-22.
(7) Rene David and Camille Jauffret-Spinosi, Les grands systemes de droit contemporains (Paris: Dalloz, 2002), 48,184,186.
(8) Ibid., 127; Michel Fromont, Grands systemes de droit etrangers (Paris: Dalloz, 2009), 8.
(9) See Arnol'd Dzhozef Toinbi [Arnold J. Toynbee], Issledovanie istorii (Moscow: IrisPress, 2006), 1398; N. O. Losskii, Istoriia russkoi filosofii (Moscow: Vysshaia shkola, 1991), 47; N. M. Karamzin, Zapiska o drevnei i novoi Rossii v ee politicheskom i grazhdanskom otnosheniiakh (Moscow: Nauka, 1991), 35; M. M. Shcherbatov, "O povrezhdenii nravov v Rossii," Russkaia starina, no. 3 (St. Petersburg, 1870), 13-116; Petr Savitskii, Evraziistvo kak istoricheskii zamysel, available on the website Gumilevica, http://gumilevica.kulichki.net/SPN/spn12.htm.
(10) Alexander B. Murphy, Terry G. Jordan-Bychkov, and Bella Bychkova Jordan, The European Culture Area: A Systematic Geography (Lanham, MD: Rowman & Littlefield, 2009), 100; Nikolai Berdiaev, "O kharaktere russkoi religioznoi mysli v 19 veke/' Sovremennye zapiski, no. 62 (1936): 309-43, available through the Elektronnaia biblioteka Odintsovskogo blagochiniia, http://odinblago.ru/filosofiya/berdyaev/reIigiozn_misl_xix_i/; Aleksandr Motorin, Dostoevskii o nachalakh russkoi narodnoi samohytnosti, available on the website Pravoslavie.ru, http://www.pravoslavie.ru/jurnal/57345.htm; Nikolai Trubetskoi, Vzgliad na russkuiu istoriiu ne s Zapada, a s Vostoka (Moscow: Direct-Media, 2015), 67-70; N. Ia. Danilevskii, Rossiia i Evropa (Moscow: Direct-Media, 2014), 735.
(11) S. A. Drobyshevskii and T. V. Protopopova, Ideia chelovecheskogo dostoinstva v politiko-iuridicheskikh doktrinakh i prave (Krasnoiarsk: Sibirskii federal'nyi universitet, 2009), 54; V. A. Senderov, "Totalitarnoe myshlenie v Rossii i Karl Shmitt," Voprosy filosofii, no. 8 (2014): 167-75; Grigory Vainshtein, "Totalitarian Public Consciousness in a Post-Totalitarian Society: The Russian Case in the General Context of Post-Communist Developments," Communist and Post-Communist Studies 27, no. 3 (1994): 247-59.
(12) Yevgeny Zamyatin, We, trans. Gregory Zilboorg (New York: Dutton, 1924), 109, available on the website of the Mises Institute, http://mises.org/books/we_zamiatin.pdf.
(13) Drobyshevskii and Protopopova, Ideia chelovecheskogo dostoinstva, 54.
(14) Ludwig von Mises, Human Action: A Treatise on Economics (Chicago: Contemporary Books, 1966), 287.
(15) M. V. Lushnikova and D. A. Smirnov, Sotsial 'noe partnerstvo v sfere truda: Uchebnoe posobie (Iaroslavl: Iaroslavskii gosudarstvennyi universitet im. P. G. Demidova, 2018), 27.
(16) According to information provided by the Federation of Independent Trade Unions of Russia (FNPR), in 2016 there were 5 federal-level agreements, 61 branch agreements at the federal level, 1,044 branch agreements concluded at the regional level, 3,596 branch agreements at the territorial level, 80 regional tripartite agreements, 1,919 territorial tripartite agreements, and 134,745 collective agreements. Resolution of the Executive Committee of FNPR of 31 May 2017 No. 4-2, http://www. fnpr.ru/n/2/15/187/14152.html.
(17) See, for example, the collective agreements of "TMH-Service" Ltd. for 2017-19 (http://www.locotech.ru/career/sociaLguarantees/files/coldogovor_tmhs_17-19.pdf); Lenpoligraphmash Holding (www.lenpoligraphmash.spb.ru/about/trade-union/agreement/); and the "Center for Professional Training" Debut Ltd. (https://www.centrdebut.ru/ wp-content/uploads/2017/04/Kollegtivny_dogovor.pdf), all accessed 20 December 2018.
(18) Collective agreement of the Russian Railway (http://doc.rzd.ru/doc/public/ruiSTRUCTURE_ID=704&layer_id=5104&id=6745) and public company "Gazpromspetsgazavtotrans" (http://spetsgazavtotrans.gazprom.ru/d/textpage/2a/42/kd_sgat_201 7-2019.pdf), both accessed 20 December 2018.
(19) See also Iurii Baranov and Svetlana Polianskaia, "Faktory, vliiaiushchie na razvitie sotsial'nogo partnerstva v sfere oplaty truda," Rossiiskoe predprinimatel'stvo 17, no. 15 (2016): 1740-50.
(20) Otto Kahn-Freund, Labour and the Law (London: Stevens & Sons, 1977), 225.
(21) Official site of the Constitution of the Russian Federation: http://www.constitution.ru/ en/10003000-01.htm.
(22) See the decision of the Russian Constitutional Court justifying such an approach for railway workers: Decision of the Constitutional Court of the Russian Federation, 8 November 1998, N 275-O-P. Decisions of the Russian Constitutional Court are available in the Konsul'tant Plius database, http://www.consultant.ru.
(23) Ognevenko v. Russia European Court of Human Rights, (44873/09), 20 November 2018; Observation (CEACR), adopted 2016, published 106th ILC session (2017) Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87)--Russian Federation (Ratification: 1956); Concluding Observations of the Committee on Economic, Social and Cultural Rights on the sixth periodic report of the Russian Federation E/C.12/RUS/CO/6,16 October 2017.
(24) Elena Gerasimova, "The Resolution of Collective Labor Disputes and the Realization of the Right to Strike in Russia," in Labor Law in Russia: Recent Developments and New Challenges, ed. Vladimir Lebedev and Elena Radevich (Newcastle upon Tyne: Cambridge Scholars Publishing, 2014), 260-61.
(25) N. L. Liutov, Rossiiskoe trudovoe zakonodatel 'stvo i mezhdunarodnye trudovye standarty: Sootvetstvie i perspektivy sovershenstvovaniia (Moscow: Tsentr sotsial'no-trudovykh prav, 2012), 192-200.
(26) Decision of the Constitutional Court of the Russian Federation, 8 February 2007, N 275-O-P.
(27) Article 398 of the Labor Code. The English translation dated 2007 may be found on the World Trade Organization web site, https://www.wto.org/english/thewto_e/acc_e/ rus_e/wtACCrus58_LEg_363.pdf.
(28) Freedom of Association, Compilation of Decisions of the Committee on Freedom of Association, 6th ed. (Geneva: International Labour Organization, 2018), para. 758, https://www.ilo.org/wcmsp5/groups/public/--ed_norm/--normes/documents/publication/ wcms_632659.pdf.
(29) Irina Kozina, "Rabochee dvizhenie v Rossii: Anatomiia zabastovki," Zhurnal issledovanii sotsial'noi politiki 7, no. 4 (2009): 485-98.
(30) Article 398 of the Labor Code.
(31) Articles 384, 398, and 399 of the Labor Code.
(32) International Labour Office, 288th Session Governing Body, Geneva, November 2003,332nd Report of the Committee on Freedom of Association, paras. 904-12, www.ilo. org/public/english/standards/relm/gb/docs/gb288/pdf/gb-7.pdf.
(33) Ruling of the Supreme Court of the Russian Federation, 18 July 2008, N 45-G08-12.
(34) Decision of Perm' Regional Court, 26 August 2015, N 3-140/2015; decision of the Chamber of Civil Cases of the Supreme Court of the Russian Federation, 8 May 2009, N 19-G09-5; decision of the Chamber of Civil Cases of the Supreme Court of the Russian Federation, 1 December 2006, N 48-G06-20.
(35) Decision of the Novosibirsk Regional Court, 5 October 2015, N 3-139/2015; decision of the Khabarovsk Regional Court, 24 May 2012, N 3-75 /2012; decision of the Irkutsk Regional Court, 15 November 2011; decision of the Perm' Regional Court, 19 October 2011, N 3-178/2011; decision of the Krasnoiarsk Regional Court, 4 May 2011. Case numbers for the Irkutsk and Krasnoiarsk Regional Courts were not available.
(36) Rossiia v tsifrakh 2017 (Moscow: Rosstat, 2017), 76.
(37) See Ervira Goriukhina/"Krasnaiashapochka'iseryiklerk,"Noviagazetta,15 May 2008, https://www.novayagazeta.ru/articles/2008/05/15/38050-krasnaya-shapochka-i-seryy-klerk.
(38) Irina Kosina, "Rabochie protestuiut," Natsional'nyi issledovatel'skii universitet "Vyshshaia shkola ekonomiki," Nauchno-obrazovatel'nyi portal IQ, https://iq.hse. ru/news/177676301.html.
(39) "Ucheniia po razgonu zabastovki rabochikh, kotorym ne platiat zarplatu, v Zlatouste," 23 May 2016, Gosudarstvennaia televizionnaia i radioveshchatel'naia kompaniia "Iuzhnyi Ural," https://www.youtube.com/watch?v=VkUGICy2V4o.
(40) N. L. Liutov, Effektivnost' norm mezhdunarodnogo trudovogo prava: Monografiia (Moscow: Prospekt, 2013), 199-200.
(41) Decision of the St. Petersburg City Court, 10 January 2018, N 3a-31/2018. See also "International and Russian Trade Union Movement Opposes the Dissolution of ITUWA," 30 January 2018, on the website of the IndustriALL Global Union, http://www.industriall-union.org/international-and-russian-trade-union-movement-opposesthe-dissolution-of-ituwa.
(42) Tsentr sotsial'no-trudovykh prav, "Likvidatsiia profsoiuza MPRA--pravovoe zakliuchenie Tsentra sotsial'no-trudovykh prav," http://trudprava.ru/expert/analytics/ unionanalyt/1986.
(43) Decision of the Supreme Court of the Russian Federation, 22 May 2018, N 3a-31/2018.
(44) Simon Clarke and Tim Pringle, "Labor Activism and the Reform of Trade Unions in Russia, China and Vietnam" (paper presented at the NGPA Labour Workshop, 10 December 2007), https://web.warwick.ac.uk/russia/ngpa/LabourActivism.doc.
(45) Resolution of the Executive Committee of the Federation of Independent Trade Unions of Russia (FNPR), 5 April 2011, No. 2-11, http://www.fnpr.ru/n/2/ 15/187/6378.html.
(46) Teri L. Caraway, "Pathways of Dominance and Displacement: The Varying Fates of Legacy Unions in New Democracies," World Politics 64, 2 (2012): 279.
(47) Ibid., 282.
(48) Ibid., 299.
(49) Kozina, "Rabochee dvizhenie v Rossii," 490.
(50) Labor Code of the Russian Federation, articles 92 and 117.
(51) Labor Code of the Russian Federation, article 3.
(52) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the United Nations General Assembly; ILO Convention C111, Convention Concerning Discrimination in Respect of Employment and Occupation, 1958; and ILO Convention C156, Workers with Family Responsibilities Convention, 1981.
(53) Jeanne M. Stellman, Encyclopaedia of Occupational Health and Safety, 1: The Body, Health Care, Management and Policy, Tools and Approaches (Geneva: International Labor Office, 1998), 247.
(54) See, for example, the ruling of the Constitutional Court, 6 December 2012, that established the unconstitutionality of the provision allowing the dismissal of pregnant civil servants for disciplinary reasons. The rule was considered discriminatory, insofar as dismissals of pregnant women were never allowed, except in the case of civil servants. See also the ruling of the Constitutional Court of the Russian Federation, 27 December 1999, N 19-P; ruling of the Constitutional Court of the Russian Federation, 15 December 2011, N 28-P.
(55) Decree of the People's Commissariat of Labor of the USSR, 10 April 1932.
(56) Decision of the Presidium of the All-Union Central Council of Trade Unions, 25 July 1978, N P10-3, "Ob utverzhdenii spiska proizvodstv, professii i rabot s tiazhelymi i vrednymi usloviiami truda, na kotorykh zapreshchaetsia primenenie truda zhenshchin."
(57) Decree of the Government of the Russian Federation, 25 February 2000, N162, "Ob utverzhdenii perechnia tiazhelykh rabot i rabot s vrednymi ili opasnymi usloviiami truda, pri vypolnenii kotorykh zapreshchaetsia primenenie truda zhenshchin."
(58) Ruling of the Constitutional Court of the Russian Federation N 617-0-0, 22 March 2012.
(59) Ruling of Samara Regional Court, 19 November 2012, N 33-10556.
(60) Opinion of the UN CEDAW, 21 March 2016, No. 60/2013,
(61) United Nations Economic and Social Council, Committee on Economic, Social and Cultural Rights, 46th Session, Geneva, 2-20 May 2011, Consideration of reports Submitted by States Parties under Articles 16 and 17 of the Covenant: Concluding Observations of the Committee on Economic, Social and Cultural Rights, E/C.12/RUS/CO/5, 1 June 2011.
(62) "Topilin rasskazal ob izmenenii spiska zapreshchennykh dlia zhenshchin professii," Vedomosti, 21 September 2018, https://www.vedomosti.ru/economics/news/ 2018/09/21/781612-topilin.
(63) Ruling of the Constitutional Court, 25 January 2009, N 187-0-0.
(64) Decision of the Kirov District Court of Ekaterinburg (Sverdlovsk Region), 8 August 2017, N 2-4636/2017; Decision of the Moscow District Court of Tver' (Tver' Region), 1 November 2017, N 2-2132/2017; Decision of the Pervomaisk District Court of Omsk (Omsk Region), 4 August 2017, N 2-1893/2017,.
(65) Art. 56 of the Civil Procedure Code.
(66) Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), 205.
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|Publication:||Region: Regional Studies of Russia, Eastern Europe, and Central Asia|
|Date:||Jan 1, 2019|
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