DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of July 9, 1998 No. 12-rp/98

On case on the constitutional appeal of the Kiev city council of labor unions on official interpretation of part three of Article 21 of the Labor code of Ukraine (case on interpretation of the term "legislation")

Case No. 17/81-97 No. 1-1/98

NAME OF UKRAINE

Constitutional court of Ukraine as a part of judges of the Constitutional Court of Ukraine:

Timchenk Ivan Artemyevich - the chairman,

Voznyuk Vladimir Denisovich,

Evgrafov Pavel Borisovich,

Kozyubra Nikolay Ivanovich,

Korniyenko Nikolay Ivanovich,

Kostitsky Mikhail Vasilyevich,

Malinnikova Lyudmila Fiodorovna,

Martynenko Pyotr Fedorovich,

Mironenko Alexander Nikolaevich,

Nemchenko Vasily Ivanovich,

Rozenko Vitaly Ivanovich,

Savenko Nikolay Dmitriyevich,

Selivon Nikolay Fedosovich - the judge-speaker,

Victor Egorovich's buffoons,

Silent Vladimir Pavlovich,

Chubar Lyudmila Panteleevna,

considered at plenary meeting in written hearing case on official interpretation of provision of part three of Article 21 of the Labor code of Ukraine by which scope of contractual form of the employment contract is determined by the legislation.

The constitutional appeal of the Kiev city council of labor unions became pretext for consideration of the case according to articles 42 and 43 of the Law of Ukraine "About the Constitutional Court of Ukraine".

The basis for consideration of the case according to article 94 of the Law of Ukraine "About the Constitutional Court of Ukraine" is availability of ambiguous understanding in case of application by separate public authorities, and also companies, organizations and organizations of provision of part three of Article 21 of the Labor code of Ukraine by which scope of the contract is determined by the legislation.

Having heard the judge-speaker Selivon Nikolay Fedosovich and having researched case papers including the conclusions on this matter of the relevant state, trade-union organs, scientific institutions, the Constitutional Court of Ukraine established:

1. The person of law on the constitutional address - the Kiev city council of labor unions - asks to give official interpretation of the term "legislation" which contains in part three of Article 21 of the Labor code of Ukraine which determines scope of the contract as special form of the employment contract.

The Kiev city council of labor unions considers that the concept "legislation" covers only the laws and therefore only scope of the contract shall be established by them. In practice the contractual form of the employment contract often takes root bylaws, in particular presidential decrees of Ukraine, resolutions of the Cabinet of Ministers of Ukraine, than, according to the subject of the address, constitutional rights of citizens on work are violated.

2. The constitution of Ukraine considerably expanded circle of questions of public life which are determined or established only by the laws of Ukraine as acts of the highest Ukraine of legal force after the Constitution in system of regulatory legal acts. According to article 92 of the Constitution of Ukraine the laws of Ukraine the major public and state institutes shall be regulated (the rights, freedoms and obligations of man and citizen; elections, referendum; organization and activities of bodies of legislative, executive and judicial authority and so forth).

Recognizing importance of right to work as bases of life activity of the person, the Constitution of Ukraine affirms and guarantees the basic labor rights of citizens (Articles 43, of 44, of 45, of 46) and determines that bases of social protection, forms and types of provision of pensions, basis of regulation of work and employment are determined only by the laws of Ukraine (Item 6 parts one of Article 92).

At the same time feature of legal regulation of employment relationships is that they are regulated by branched system of the regulations adopted by bodies of different levels including with the participation of labor collectives and labor unions. The most socially important part of employment relationships which is covered by the constitutional concept of "basis of regulation of work and employment" is determined only by the law, the others - the laws, resolutions of the Verkhovna Rada of Ukraine, acts of the President of Ukraine and the Cabinet of Ministers of Ukraine, acts central and local executive bodies, local government bodies, general, industry, regional, tariff and other agreements which are signed on two - tripartite basis between employee representatives and employers and competent state body, and also acts (agreements) adopted at the company in organization, the organization by the owner or the body authorized by it independently, together or in coordination with labor collective or trade-union committee.

3. The branched and multi-level system of sources of labor right received the display in terms which are used in the Labor code of Ukraine. In particular, such terms as "laws", "legal acts", "legislation", "the international agreements", "agreement", "agreement", "collective agreement" and so forth which are used in the Code determine certain type of regulations which depending on subject of regulation of employment relationships regulate institutes of labor right, specific employment relationships or their separate elements.

The most widespread in the Labor code of Ukraine is the term "legislation". Article 4 of the Code determines that the legislation on work consists of the Labor code of Ukraine and other acts of the legislation of Ukraine of work adopted according to it.

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