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CONCLUSION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of June 9, 1998 No. Z-65/98

About Compliance of the Constitution and to the laws of the Republic of Belarus of Item 38 of the Resolution of the Plenum of the Supreme Court of the Republic of Belarus of June 17, 1994 No. 5 "About some questions of application by courts of the legislation in case of permission of employment disputes" with changes and additions made by resolutions of the Plenum of the Supreme Court of the Republic of Belarus of December 16, 1994 No. 12 and 28 of June, 1996 No. 8

Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Vasilevich G. A., vice-chairman of Court Maryskin A. V., Boyko T. S. judges., Vorobey G. A., Kenik K. I., Podgrusha V. V., Sarkisovoy E.A., Tikovenko A. G., Filipchik R. I., Shabaylova V. I., Cone G. B.

with participation:

the representative of the President of the Republic of Belarus who made the offer on check of constitutionality of the regulation: Pavlova V. I. - First Deputy Minister of work of the Republic of Belarus,

the representative of the Supreme Court of the Republic of Belarus which adopted the regulation: Mintz I. N. - judges, secretary Plenum of the Supreme Court of the Republic of Belarus

N5 "About Some Questions of Application by Courts of the Legislation in case of Permission of Employment Disputes" with changes and additions made by resolutions of the Plenum of the Supreme Court of the Republic of Belarus of December 16, 1994 N12 and of June 28, 1996 N8 considered in proceeding in open court case "About compliance of the Constitution and to the laws of the Republic of Belarus of Item 38 of the resolution of the Plenum of the Supreme Court of the Republic of Belarus of June 17, 1994."

Took part in judicial session:

Zhdanovich I. N. - vice-chairman of Supreme Economic Court of the Republic of Belarus;

Ivanovsky A. V. - deputy attorney general of the Republic of Belarus;

Sergeyev O. G. - the deputy minister of justice of the Republic of Belarus.

Proceeedings are initiated on May 19, 1998 according to the proposal of the President of the Republic of Belarus based on article 116 of the Constitution of the Republic of Belarus, articles 5 and 6 of the Law "About the Constitutional Court of the Republic of Belarus" and Article 43 of Regulations of the Constitutional Court.

Check Item 38 of the resolution of the Plenum of the Supreme Court of the Republic of Belarus of June 17, 1994 was subject to N5 "About Some Questions of Application by Courts of the Legislation in case of Permission of Employment Disputes" with changes and additions made by resolutions of the Plenum of the Supreme Court of the Republic of Belarus of December 16, 1994 N12 and of June 28, 1996 N8 (Sudova vesnik, 1994, N3; 1995, N1; 1996, N 3).

According to the specified resolution Item "by consideration of the disputes arising in connection with application of measures of authority punishment to the workers who refused the conclusion of the agreement on full financial responsibility for safety of material values, courts shall proceed from conditions of the employment contract. If accomplishment of obligations on servicing of material values constitutes its main labor function for the worker that is stipulated in case of employment, and according to the current legislation the agreement on full financial responsibility shall be signed with it, the refusal of the conclusion of such agreement without valid excuse needs to be considered as non-execution of labor obligations with all that it implies. In case of refusal the worker from the conclusion of the agreement on reasonable excuses, including if earlier performed work did not require the conclusion of the agreement on full financial responsibility and there was no opportunity to transfer the worker from its consent to other work, the employment contract is terminated in relation to Item 1 of article 33 Labour Code".

In the offer on check of constitutionality of Item 38 of the resolution of the Plenum the President of the Republic of Belarus specified that the conclusion of the agreement on complete material otvetstvennostisushchestvennoa working condition. If the conclusion of the agreement on full financial responsibility was not caused in case of employment, then the worker according to part three of article 25 Labour Code about the conclusion of such agreement shall be warned not later than one month. If former essential working conditions cannot be kept, and the worker does not agree to further work in new conditions, then the employment contract stops on Item 6 of article 29 Labour Code, but not on Item 1 of article 33 Labour Code as it is explained in Item 38 of the resolution of the Plenum.

Having heard the judge-speaker Shishko G. B., agents of the parties, having studied case papers, having analyzed provisions of the Constitution, the Labor code and other regulations, the Constitutional Court established the following.

Based on part four of article 116 of the Constitution the Constitutional Court according to the proposal of the President draws the conclusions about compliance of acts of the Supreme Court of the Constitution, to the international legal acts ratified by the Republic of Belarus, to the laws, decrees and decrees.

According to article 7 of the Constitution the state, all its bodies and officials are effective within the Constitution and acts of the legislation adopted according to it. The legal acts or their separate provisions recognized in the procedure established by the law contradicting Constitution provisions, have no legal force.

According to article 137 of the Constitution of the Republic of Belarus the Constitution has the highest legal force. The laws, decrees, decrees and other acts of state bodies are issued on basis and according to the Constitution.

According to article 121-1 Labour Code written agreements about full financial responsibility can be concluded by the employer with the workers (who reached 18-year age), holding positions or performing the works which are directly connected with storage, processing, sale (leave), transportation or application in production process of the values transferred to them.

The plenum of the Supreme Court in Item 38 of the resolution explained that by consideration of the disputes arising in connection with application of measures of authority punishment to the workers who refused the conclusion of the agreement on full financial responsibility for safety of material values, courts shall proceed from conditions of the employment contract. If accomplishment of obligations on servicing of material values constitutes its main labor function for the worker that is stipulated in case of employment, and according to the current legislation the agreement on full financial responsibility shall be signed with it, the refusal of the conclusion of such agreement without valid excuse needs to be considered as non-execution of labor obligations with all that it implies.

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