Labour Law Reforms in Georgia towards Achieving Decent Work:
Challenges and Perspectives
Zakaria Shvelidze4th Conference of the Regulating
for Decent Work Network8-10 July 2015
International Labour Office, Geneva
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Labour Legislation in Georgia
- 1973, Soviet Labour Code;
- 1997, Amendments to the (Soviet) Labour Code.
• Shvelidze Z., Transition from Soviet to Liberal Labour Law: Labour Standards in Georgia, 2012;
• Muller A., "Employment protection legislation (EPL) of Georgia: A review based on ILO standards, OECD indicators and comparative labour law", 2013.
2006, the new Labour Code
labeled as ultra-liberal law
• Shvelidze Z., The Europeanisation Level of Labour Regulations in Trans Caucasian Region: A Comparative Study of Labour Standards in Armenia, Azerbaijan and Georgia, 2014.
2013, amendments to the Labour Code
more balanced regulatory framework
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Labour Code Amendments (2013)
• Limitation of parties’ contractual freedom;
• The regulation of forms and term of the employment contracts;
• Working hours;
• Dismissal;
• Collective labour law.
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Limitation of parties’ contractual freedom
Labour Code (2006)
unless otherwise addressed by the
employment agreement
Labour Code (2013)
Provision of the employment contract contradicting to the Labour Code shall be considered null and
void
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Employment ContractsForm
Labour Code (2006)
No restriction
Labour Code (2013)
written form if the employment relations continue for more than 3 months
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Term
Labour Code (2006)
No restriction
Labour Code (2013)
Restrictions are introduced
(i) limiting recourse to contracts for a specified period of time;
(ii) deeming contracts for a specified period of time, to be contracts of employment of
indeterminate duration
Working Hours Maximum work-week
Labour Code (2006)
41 hours per week
parties were free to increase weekly working time under the employment contract.
Labour Code (2013)
40 hours per week
48 hours per week in industries with specific work regimes
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Overtime Work
Labour Code (2006)
- Employer was not obliged to remunerate overtime work
-The law did not set a limit to the maximum number of overtime hours
Labour Code (2013)
- employer shall remunerate the overtime work at an increased rate of the
normal hourly wage
- no limit to the maximum number of overtime hours
Dismissal
Labour Code (2006)
employer was free to dismiss employee without prior
notification for good cause or bad cause, for any reason or for
no reason.
Labour Code (2013)
- exhaustive list of grounds for dismissal
- employer shall notify an employee in advance and
strictly comply with grounds for termination by providing
reasons for dismissal
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Right to Organize
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Employees’ association or trade union
Labour Code (2006)
Employees’ association
Labour Code (2013)
Employees’ association
ILO Conventions No. 87 and No. 98
Minimum membership requirement
Law on Trade Unions
100 persons
Amendments to the Law on Trade Unions (2012)
50 persons
Right to Strike
Prerequisites for organizing the strike
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- violation of human rights and freedoms;
- violation of an individual (collective) agreement;
- disagreement regarding the essential terms of the
individual employment contract and/or the conditions
of a collective agreement.
Collective Labour Dispute
Mediation Strike
Right to Strike
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prohibition of the right to
strike
services connected with the safety of human life and
health
activity that can not be suspended due to
the type of technological
process
public service
Presidential Decree under the state of
emergency or martial law
municipal cleaning service;
the services in the system of oil and gas extraction, generation, processing
CEACR 2015 Direct Request:
to establish a system of minimum services
According to Article 50 of the Labour Code, court is authorized to postpone or suspend a strike for no more than 30 days if there exists a danger to a third party’s property.
CEACR 2015 Direct Request:
to review the provision
Anti-union Discrimination
Labour Code (2013)It is prohibited to discriminate employees because of employees’ activity in
an association and/or due to other actions aimed at:
a) hiring employees or maintaining their jobs under the conditions that these employees refuse to become the members of an association or leave an
association;
b) terminating employment relations with employees or enacting some other restrictions against employees because of their participation in the activities
of such association.
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Burden of Proof
Labour Code (2013)
- If the employee provides a prima-facie case that the employer has violated anti-discrimination norms, then the burden of proof is imposed
on the employer to prove that no such discrimination took place.
- The shifting of burden of proof applies only to discriminatorydismissals.
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Burden of Proof
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LabourCode (2013)
-It does not recognize employer’s burden to prove that the discrimination was not the basis for denial of employment;
ILO CEACR
legislation should provide ways to remedy such difficulties:-reversing the burden of proof;- grounds for the decision not to hire the applicant could be made available upon request.
-Article 5(8):employer is not required to prove its decision for not recruiting an applicant.-Employer is not obligated to provide the reason for non-renewal of the fixed term contracts.
Remedies (anti-union dismissal)
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Georgian legislation
Civil Procedure Code:• Civil matters shall be adjudicated - 2 months;• In the cases of a particular complexity - 5 months;• labour relations disputes – one month.
Case law on anti-union dismissal - 23 months
ILO CEACR
Cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective.
Lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned
Remedies (anti-union dismissal)
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LabourCode (2013)
Alternative Sanctions:• Reinstatement in his/her previous position;• Reinstatement in an equivalent position;• Compensation in the amount defined by the Court.
Case Law - lost income shall be awarded to an unlawfully dismissed employee
ILO CEACR
The reinstatement of a worker dismissed by reason of trade union membership or legitimate trade union activities constitutes the most effective remedy for acts of anti-union discrimination.
Remedies (anti-union discrimination at the recruitment stage)
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compensation for the costs of the
application
reimbursement of material damages
AMOUNT?
reimbursement of moral damages
(if proved)
Remedies (anti-union discrimination at the recruitment stage)
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can victim of discrimination obtain the job and claim to be employed ?
• Article 30.2 of the Constitution – the concept of free enterprise - the right of an entrepreneur at its discretion to choose a contractor and based on his free will to employ an individual
• concept of freedom of contract - parties conclude a contract on the basis of free expression of will.
no
Remedies (anti-union discrimination at the recruitment stage)
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Civil Code-free will shall not violate the law;- the concept of good faith;- participants in civil relations may exercise any action not prohibited by law;- imperative rules protect the freedom of others from abuse of their civil rights.
Constitution
Labour Code- Prohibition of discrimination
ILO No. 111 Convention
-The concept of elimination of discrimination- Jacques Charles Hoffman v. South African Airways, the Constitutional Court of South Africa
ILO supervisory
bodies
- discrimination must be eliminated - suitable remedies - remedies should have dissuasive effect on potential perpetrators of discrimination
Remedies (anti-union discrimination at the recruitment stage)
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• Parties commit to respecting, promoting and realising in their law and practice the internationally recognised core labour standards, as embodied in the fundamental ILO conventions, and in particular:
(a) the freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation.
• Party shall not, through a sustained or recurring course of action or inaction, fail to effectively enforce its labour law, as an encouragement for trade or investment.
EU-Georgia Association Agreement
Remedies (anti-union discrimination at the recruitment stage)
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-applicant disfavored should have a right to claim appointment and formation of an employment relationship;
- the judge should be authorized to order the hiring of the discriminated person.
Constitution
Labour Code
ILO No. 111 Convention, supervisory
bodies
EU-Georgia Association Agreement
Civil Code
Thank you for your attention
Zakaria ShvelidzeTbilisi State University, Georgia
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