MODERN PROBLEMS OF SELF PROTECTION OF LABOR RIGHTS BY THE EMPLOYEES

According to Article 1 of the Constitution of the RK, Republic of Kazakhstan is a democratic, secular, legal and social state, and its highest value is a man, his life, rights and freedoms. The Article 13 of the Constitution states that everyone has the right to recognition of his legal status and has the right to defend his rights and freedom by all means not contradicting the law, including self-defense, everyone is entitled to legal protection of his rights and freedoms. [1]

The need for such protection is due to the fact that, as emphasized by a number of International Labour Organizations, the employee is the most poorly protected side of labor relations, and therefore, needs to be protected by the state and society from the arbitrariness of the employer.

Since its establishment, the ILO adopted the conventions and recommendations, covering almost all the issues in the field of employment. These are some of the basic human rights (including the right for the establishment of the organization and collective bargaining, and the elimination of discrimination in the field of employment), the labor administration, labor relations, employment policy, working conditions, social security, occupational safety and health, etc. [2] According to the

I.J .Kiseleva, "the value of such traditional areas of the ILO as the protection of workers from the tyranny of entrepreneurs in the hiring and dismissal, safety and occupational health , health and safety in the broadest sense, doesn’t decrease". [3]

For the development and specification of Art. 13 of the Constitution of the Republic of Kazakhstan, we believe that the Labor Code must contain the relevant rules, including all sorts of ways to protect workers' rights. As an example we can take the Labor Code of the Russian Federation, in where the section 13 is devoted to the theme "Protection of workers' rights and freedoms, the review and resolution of labor disputes", which provides the liability for violation of labor laws and other acts containing norms of labor rights. In particular, the Art. 352 of Labor Code provides four basic ways to protect workers' rights and freedoms:

1. Self-protection of labor rights of workers;

2. Protection of labor rights and interests of workers by Trade Unions;

3. State supervision and control over the observance of labor laws and other normative legal acts, containing norms of labor law;

4. Judicial protection.

The third and fourth methods are focused on the protection by the State, the second – by the society, represented by Trade Unions, and the first - by the worker himself. [4]

The problem of protecting labor rights and freedoms in our country in recent years is of particular relevance, since the transition to market relations, the level of protection of employees dropped significantly. It is especially true for workers with an employment relationship with the organizations of private ownership. Employers often, manipulate wages, in violation of the laws unceremoniously impose their will on employees thus infringing their labor rights.

There is a practice of unscrupulous employers who deliberately do not sign an employment contract and there are a lot of reasons. For example: the tax evasion by the employer, failure to pay wages, etc. As a result of non-observance of the form of the employment contract provided in Labour Code of the Republic of Kazakhstan, the employee is automatically deprived of the opportunity to prove the existence of the employment relationship with the employer in the event of labor disputes. As a rule, in court the worker, who didn’t sign an employment contract, hopes that former colleagues will help in the court as witnesses and testify that he had previously worked in the organization. But this is not the way out because former colleagues refuse to help the former employee – because of fear of losing their jobs.

Against to the policy of establishing civilized labor relations in modern conditions, the minimum levels of labor rights and freedoms provided by the norms of labor law are not observed. The aim of protecting labor rights and freedoms is to ensure that these workers' rights, which are set for the legislative and contractual regulation of labor relations.

It should be noted that self-defense is not a new method, because the employee in case of labor disputes between subjects of labor relations is primarily engaged in self-defense. We believe that the Labour Code should contain norms, specifically providing for the ways of protection of labor rights that workers could use in the case of infringing his employment rights and freedoms. The Labor Code needs specification of the definition of self-defense, should provide general rules of the right of workers to self-defense, forms of self-defense, etc.

But in terms of a scientific theory, self-defense is a fundamental innovation that has not been subjected to scientific research before. Such an "omission", it seems, was partly due to the absence in the law of the relevant legal concept, which would indicate the existence of this legal category to legal science (and, hence, the necessity to study it). Even if “flashes" existed in legislation, attesting to the fact that the legislature recognized and provided for the protection of labor rights by the independent actions of the employee, the scientific thought did not catch the whole legal phenomenon. Of course, there were scientists who proposed to put the term "self-defense" into a conceptual field, but the harmonious scientific theory of self-defense, at the time of development of the Labour Code of the Republic of Kazakhstan, was not created. Perhaps this circumstance caused the underdevelopment of many legislative issues of self-defense, which may now be resolved by the fact that after adopting the Labour Code of the Republic of Kazakhstan, lots of scientific publications relating to a particular problem of self-defense have appeared. There are not so many legal norms of self-defense in the labor laws, and technique of their presentation allocates laconically, that in this case does not help improve the quality of legal regulation. But the content standards set aside by law for self-defense, in our opinion, does not allow the modern worker to use self-defense fully and actively in case of violation of labor rights. But nonetheless if the employee dares to defend himself, his actions can be evaluated ambiguously: in the range of disciplinary offense to lawful acts. Such variation in the legal assessment proves the serious shortcomings in the legal framework of self-defense, which generate two kinds of problems: some refer to the worker, the other – to the employer.

Thus, the existing legal framework of self-defense of the worker’s labor rights requires a deeper legislative development, and the sooner the issue is resolved, the more workers will replicate the experience of independent claim of their labor rights, as at present, the employees are not likely to enhance self-employment in case of violation labor rights - government agencies remain the most effective means of pressure on the employer violated the workers' rights. Meanwhile, without diminishing the importance of state institutions in defending workers' rights, we notice the promising development of self-defense. Self-defense combines many positive aspects: operational impact on the offender, less expensive measures, the opportunity to plan and directly monitor the human rights activities, flexible approach to the problem situation, based on the best awareness about the employer, which is so essential in the relationship with him in conflict situations. While exercising self-defense, the employee is able as soon as possible to resolve the current problem himself, without any long walking to different instances. Thanks to self-protection the worker and the employer are able to solve disputes "then and there" without burdening more the overburdened judicial authority. In addition, the qualified legal self-defense mechanism can help professionals in case of conflict, not apply to court directly, but try the independent actions to prevent it.

Meanwhile, as a way of protecting the rights and interests of workers, self-defense implies the independent proactive actions of the worker for the protection of his labor rights, life and health, above all, without reference to any of the competent authorities or in parallel with them. According to E. E. Bogdanova, self-defense - a special form of protection, the specificity of which is manifested in the fact that the legal entity, directly through his actions can protect the violated right. [5] The reason for self-defense is a violation of the rights, for example, the timely payment of wages. No violations - no necessity for self-defense.

In our opinion, under the self-defense of the employee's labor rights, independent implementing by the employee of factual actions, should be understood, which is addressed to the elimination of violations of his rights, prescribed by law, collective agreement, contract of employment, in ways that do not contradict the law.

The use of self-defense extends workers’ chances to protect their labor rights. However, granting additional rights expands their responsibilities. First of all, it is the obligation to obey the law.

In self-defense an employee must protect himself with his own actions without applying to the state and public bodies and organizations. Accordingly, he must know the content of labor law, be able to interpret correctly its provisions to the particular situation and make a decision on the application of self-defense consciously, as he is responsible for his actions.

V.N. Tolkunova emphasizes reasonably, that the labor rights of self-defense is applicable not only to occupational safety, but also in other institutions of labor law. [6] According to M.V. Lushnikova, undertaking the interesting attempt of detailed study of the legal nature, the subject matter, and the limits of self-defense in the labor law, we should talk about methods of self-defense by means of law, as well as by the labor contract and the collective bargaining agreement. [7]

Thus, self-defense is reduced to committing actions (inaction) by the employee, which gives rise to the relationships for the protection of labor rights. These relationships occur without involving any of the bodies, and the actions committed by the employee are not officially issued. Consequently, the main feature of self-defense is an independent procedural activity of workers and employers, without interference of the state supervision and control over the observance of labor legislation and organs considering individual labor disputes. The employer may voluntarily remove a violation or without recognizing it, to reject the claim of the employee. And since the law does not preclude the ability to use self-defense and other means of protection, human rights and freedoms, at the same time, then in the second case, the conclusion about the presence or absence of a violation can be made by the authority, where the employee applied.

It should be noted that the Labour Code of the Republic of Kazakhstan, provides a form of self-defense - refusal to perform job responsibilities, herewith, there are two cases when an employee may refuse to perform the work: not provided by labor contract and directly threatening the life and health of the worker. Consequently, a form of self-defense is the employee's refusal to perform any illegal orders of the employer, such as starting the work before the vacation ends or to work overtime. Self-defense may be used in case, when employees are not provided with means of individual and collective protection, as well as in the case of ordering to work in harmful and dangerous working conditions, or hard work, not covered by the labor contract.

We believe that self-defense is the most effective way to protect workers' rights and freedoms. Self-defense should be resorted to, in the presence of gross violations of workers' rights specified in the law. However, not all the employees are willing to use this method to protect their labor rights. This is partly due to the reluctance of workers to strain relations with the employer, especially in the atmosphere inherent of many organizations where the employees not only can’t express their grievances to the employer, but have to hide their discontent from the employer.

There is another explanation for the legal passivity of workers. Among them, there is a perception that the protection measures of their labor rights must be taken by the state authorities to suppress violations regardless of the workers reaction.

The roots of such attitudes are in the past decade: during the Soviet regime, the workers are accustomed to be protected by their state, using a variety of means, including adoption of appropriate legislation. But in the present conditions, in the presence of even the strict regulation of labor relations, to eliminate violations of labor rights of workers without their active intervention is very problematic. Indeed, a present-day employer bases solely on his interests. He is reluctant to cover any economic costs (funds for health and safety, to improve the terms and conditions of work, the payment of compensation in case of delay of wages, etc.). So, the worker should not rely on the state and, especially, rely on the special care of their employer but should care about the conditions and safety of his work, his wages himself. The employee can and must personally defend his rights, guiding by art. 13 of the Constitution of the Republic of Kazakhstan.

References

1.Конституция Республики Казахстан.

2.Бекяшев Д.К. Между народное трудовое право: учеб.пособие. - М.: 2008.- 336 с.

3.Киселев И.Я. МОТ и развитие трудового права // Россия и МОТ: перспективы взаимовыгодного сотрудничества. Материалы конференции. М., 2003.

4.Комментарий официальных органов к Трудовому Кодексу Российской Федерации / Отв. ред. А.Л. Сафонов. М.: МЦФЭР, 2008.-1328 с.

5.Богданова Е.Е. Формы и способы защиты гражданских прав и интересов // Журнал российского права, 2003, № 6. С.43.

6.Комментарий к Трудовому кодексу Российской Федерации/ Под ред. К.Н. Гусова. М., 2002. (автор главы В. Н. Толкунова). - 598 с.

7.Лушникова М.В. К вопросу о самозащите в трудовом праве: Материалы Всероссийской научно-практической конференции в области трудового права и права социального обеспечения// Отв. ред. К.Н. Гусов. М., 2003