Beijing Law Review, 2011, 2, 8-16
doi:10.4236/blr.2011.21002 Published Online March 2011 (http://www.SciRP.org/journal/blr)
Copyright © 2011 SciRes. BLR
Social Partner Agreements and Local Regulatory
Legal Acts in the Labor Law of Belarus, Russia,
and Ukraine
Kirill L. Tomashevski1, Elena A. Volk2
1Civil Law, Law of the International Institute of Labour and Social Relations, Minsk, Belaru s; 2Ecology, Belarusian State University
of Informatics and Radio Electronics, Minsk, Belarus.
Email: k_tomashevski@tut.by
Received November 15th, 2010; revised December 1st, 2010; accepted January 15th, 2011.
ABSTRACT
The legal nature of a tariff agreement became the subject of study first by French jurists (Lambert, Deslenre, B. Reno)
in the 1890s, and, since the beginning of the XXth century, by German (F. Lotmar, H. Zinzgeimer, etc.) and Russian
jurists (L.S. Tal , I.S.Vojtinsky). Moreover, already in 1900 G. Zultser and F. Lotmar elaborated and published a draft
Swiss law on a working tariff agreement, and in 1906 a similar draft government law was prepared in France.
Keyword s: Collective Contract, Collective Agreement, Local Regulatory Legal Acts
1. Introduction
The legal nature of a tariff agreement became the subject
of study first by French jurists (Lambert, B. Reno, etc.) in
the 1890s, and, since the beginning of the XXth century,
by German (F. Lotmar, H. Zinzgeimer, etc.) and Russian
jurists (L.S. Tal [1], I.S.Vojtinsky [2]). Moreover, already
in 1900 G. Zultser and F. Lotmar elaborated and pub-
lished a draft Swiss law on a working tariff agreement,
and in 1906 a similar draft government law was prepared
in France [2].
The significance of regulatory acts as sources of the
internal legal order of economic entities (enterprises)
capable of creating objective law was noted as far back as
early XXth century by L.S. Tal [3], founder of the Rus-
sian science of labor law.
In the Soviet science of labor law, the issues concern-
ing legal regulation of collective contracts (agreements)
came under intensive study in the 1920s, particularly in
the works by P.D. Kaminskaia [4], I.A. Trahtenberg [5],
etc. [6]. Various Soviet labor law researchers1 devoted
considerable attention to legal regulation of collective
agre e me nts .
Some issues dealing with local legal regulation of la-
bor relations were studied during the Soviet period in a
number of monographs and dissertation theses (R.I.
Kondratiev [7], etc.).
Following the disintegration of the USSR and the
gaining of independence by the former Soviet Republics,
the social partnership topics became increasingly impor-
tant with the emergence of independent trade unions that
became more active in defending the interests of workers
through engaging in a social dialogue with employers
with the state acting as an intermediary.
In the contemporary period, the social partnership is-
sues have been the subject of intensive study by a number
of labor law researches from Russia2, Belarus3, Ukraine4,
including, to some extent, the issues relating to the legal
nature of collective agreements.
In the contemporary Russian science of labor law, lo-
cal regulatory acts have been studied by G.V. Hnikin [8],
M.A. Drachuk [9] and other jurisprudents. This topic has
not been the subject of monographic study by Belarusian
scientists in the period of independence.
At the same time, the correlation between social part-
ner agreements5 [10] and local regulatory legal acts re-
mains a disputable issue in the field of science, and a
problem that has not been resolved in the field of legisla-
tion, which is confirmed by the differences in the legal
1G.K. Moskalenko, A.E. Pasherstnik, G.I. Liah, etc.
2M.V. Lushnikova, A.F. Nurtdinova, I.O. Snigireva, S.Yu. Chucha, etc.
3A.A. Voitik, O.V. Chesalina.
4V.M. Bojko, V.I. Komarnitskiy, G.I. Chanisheva, etc.
5In this article, social partn
er agreements mean any collective contracts
(agreements) concluded by trilateral partnership subjects (or their repre-
sentatives). This terminology is also used by other authors.
Social Partner Agreements and Local Regulatory Legal Acts in the Labor Law of Belarus, Russia, and Ukraine
Copyright © 2011 SciRes. BLR
9
regulation of the above sources of labor law in Belarus,
Ukraine and Russia. This article examines the legal na-
ture of social partner agreements and local regulatory acts,
also their separation and classification. A collective con-
tract has the two-fold character: on the one hand, as a
deal (contract, obligation), and, on the other hand, as a
regulatory (legal) act or a regulatory agreement. Social
partner agreements have a priority over appropriate leg-
islative acts and local regulatory legal acts, if the social
partner agreement upgrades the legal status of an em-
ployee. The article contains proposals at improving the
legislation of Belarus, Russia and Ukraine.
2. Legislative Definitions of Social Partner
Agreements and Local Regulatory Acts
In Russia , the legal definitions of a collective contract
and a collective agreement are provided in the Labor
Code of the Russian Federation, dated 30/12/2001 (here-
inafter referred to as the RF LC) [11]. Article 8 of the RF
LC is entirely dedicated to local regulatory acts contain-
ing the norms of labor law though without legally defin-
ing this notion.
Following the introduction of global alterations to the
RF LC in accordance with Federal Law No. 90-FZ, dated
30/06/2006, the legal definitions of a collective con-
tract”6 and a collective agreement7 underwent minimal
editorial corrections. A social partner agreement retained
its legal character in the RF LC remaining a legal act. It is
interesting that Russian law makers refrained from de-
fining both the collective contract and the collective
agreement as regulatory legal acts. Nevertheless, the
above legal definitions seem to be far from indisputable
as they qualify collective contracts (agreements) as legal
acts rather than regulatory agreements, which in practice
may lead to confusion between such collective contracts
(agreements) and employers local acts.
Another vivid example of erroneous confusion in the
legislation of the Republic of Belarus between collective
contracts (agreements) and local regulatory acts is the
Labor Code of the Republic of Belarus, dated 26/07/1999,
(hereinafter referred to as the RB LC). According to
paragraph 3, Part 1, Article 1 of the RB LC, local regula-
tory acts are defined as collective contracts (agreements),
internal regulations, and other regulatory acts, adopted in
accordance with the established procedure, regulating
labor relations and any other relations associated therewith
with respect to a specific employer.In our view, this
definition is erroneous as by their legal nature collective
contracts (agreements) are regulatory agreements rather
than regulatory acts. This gross terminological error
spilled over into many other norms contained in the RB
LC (e.g., Articles 7, 55, 194).
Article 7 of the RB LC classifies, along with the labor
legislation, any collective contracts (agreements) and any
other local regulatory legal acts, concluded and adopted
under the existing legislation, as the sources of regulation
of labor relations and other relations associated therewith.
Part 2, Article 7 of the RB LC contains an important pro-
vision stating that local regulatory acts introducing any
conditions degrading the position of employees as com-
pared to the existing labor legislation are considered null
and void. A similar provision is provided in Part 2, Arti-
cle 194 of the LC. From these regulations, one may con-
clude that local regulatory legal acts may only upgrade
the position of the employed personnel as compared to
the existing legislation (the so called in fa vor em principle)
but may not degrade it.
The definitions that seem to be disputable include also
those of a collective contract and a collective agreement
given in Article 3618 and Article 3589 of the RB LC. In
its turn, paragraph 12, Part 1, Article 1 of the Law of the
Republic of Belarus No. 361-3 entitled On Regulatory
Legal Acts of the Republic of Belarus,dated 10/01/2000,
defines a regulatory legal act10.
The above legal definitions provided in the the RB LC
seem to contain the same defect as the formulations given
in the RF LC, which may be explained by the reciprocal
influence of the above codes in the course of their elabo-
ration and adoption. The only difference is that Russian
law makers define the social partner agreements as legal
acts while their Belarusian counterparts define the same
agreements as regulatory legal acts. In our view, the error
of both the Russian and Belarusian law makers is that
collective contracts and agreements are not regulatory
(legal) acts as they have a different legal nature, which
will be substantiated below.
6
According to Part 1, Article 40 the RF LC, a collective contract is a
lega
l act, regulating social and labor relations at an organization or with
respect to an individual entrepreneur, concluded between employees and
employers represented by their proxies.
7
According to Part 1, Article 45 the RF LC a collective agreement is
defi ned as a legal act, regulating social and labor relations and estab-
lishing the general principles that regulate the economic relations asso-
ciated therewith, concluded between the authorised representatives of
employees and employers at the federal, interre
gional, regional, sectoral
(intersectoral) and territorial social partnership levels within the scope of
their authority.
8A collective contract is defined as a local regulatory legal act regulat-
ing labor relations and social and economic relations between an em-
ployer and employees.
9
An agreement is a regulatory act containing the obligations of the
par
ties concerning the regulation of relations in the social and labor
sphere at the level of a specific occupation, sector, territory.
10
A regulatory legal act is a formal document of a standard format
adopted (issued) within the scope of authority of an authorised state
body (an official) or in a referendum with the observation of the proce-
dure, established in accordance w
ith the legislation of the Republic of
Belarus, containing the rules of conduct mandatory for observation by
all parties concerned, designed for a specific group of persons and
regular application.
Social Partner Agreements and Local Regulatory Legal Acts in the Labor Law of Belarus, Russia, and Ukraine
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Although by adopting Law No. 272-3, dated 20/07/2007,
Belarusian law makers eliminated the discrepancy in ter-
minology between the RB LC and the Law of the Repub-
lic of Belarus No. 361-3 entitled On Regulatory Legal
Acts of the Republic of Belarus,dated 10/01/2000 (pre-
viously both the RB LC and the RF LC used the category
of a local regulatory act), we believe that this problem
has not been completely resolved. At present a large
number of local acts such as individual local acts or
mixed local acts, including both the regulatory precepts
and the individual law enforcement provisions (e.g.,
staffing tables, leave schedules, shift schedules, etc.). It is
evident that these local acts are not covered by the term
a local regulatory legal act,” but nevertheless require
legal regulation. In this connection, it would be legally
justified to use in the scientific terminology and, in the
future, in the legislation, a broader notion of a “local act”
which would incorporate three types of acts that may be
adopted by an employer within the framework of his
regulatory authority, including regulatory (legal), indi-
vidual, and mixed acts.
Referring to the Ukrainian legislation, it may be noted
that the Code of Labor Laws of Ukraine (1971) (herein-
after referred to as the CLL that is a revised copy of the
Soviet code does not contain a legal definition of a col-
lective contract though in Article 10 it defines the pur-
pose of the conclusion of a collective contract as the
regulation of production, labor, social and economic rela-
tions and the coordination of the interests of employees,
owners, and the bodies authorized thereby. The CLL of
Ukraine and the Law of Ukraine entitled On Collective
Contr a cts and Agreements(1993) contain no definitions
of social partner agreements [12]. The CLL of Ukraine
also contain no general norms dealing with local regula-
tory legal acts though some types of such local regulatory
legal acts are referred to throughout the text (leave
schedules (Article 79), internal labor schedules (Article
142), etc.).
At present the Government of Ukraine has drafted the
Labor Code of Ukraine (hereinafter referred to as the
draft LC of Ukraine) whose provisions are also of scien-
tific interest for the purposes of comparative analysis.
The draft CL of Ukraine contains Chapter 2 entitled
Regulatory Legal and Other Acts that Regulate Labor
Relationsincluding 8 articles. For the purposes of this
paper, let us dwell only on two articles of this chapter
(Articles 11 and 12) that, in our view, were drafted, to a
certain degree, under the influence of Article 5 of the RF
LC. Article 11 of the draft CL of Ukraine, introducing a
system of regulatory legal acts and other acts governing
the regulation of labor relations, in addition to labor leg-
islation acts, includes general, sectoral, and territorial
agreements, collective and labor agreements, and em-
ployers regulatory acts.
Article 13 of the CL of Ukraine deals such source of
labor law as the employers regulatory acts (being, to a
considerable degree, similar to Article 8 of the RF CL).
An important provision ensuring the interests of employ-
ees is the regulation stating that the employers regula-
tory acts must not contravene any legislative acts, agree-
ments, a collective contract, or the constituent documents
of an employer having the status of a legal person. At the
same time, it seems to be erroneous to confuse in i.1,
Article 13 of the draft LC of Ukraine between employers
local acts and organisational and administrative docu-
ments (orders, directives and resolutio ns).
3. The Problem of Confusion Between Social
Partner Agreements and Local Acts
It has to be stated that local regulatory acts are often
confused in educational and scientific literature with col-
lective agreements [13], although they have different
legal nature and only a few similar features associated
with their sphere of application. There are also other dif-
ferences between social partner agreements and local
regulatory legal acts [14]. G.V. Khnykin emphasises that
a collective agreement and other local regulatory acts
containing the norms of labor law are two different mod-
els used to regulate labor relations at the level of an orga-
nisation[15]. At the same time, the opinion of the same
scientist concerning the conventional character of the
division of local sources into regulatory agreements and
local regulatory acts does not seem to be quite consistent
[15]. His argument concerning the inclusion in practical
application of individual local acts as appendices to a
collective contract also does not seem to be very con-
vincing as a local act included in a collective agreement
as its constituent part ceases to be from such time an act
of the employers administrative authority and turns
into a collective contract component with all the ensuing
consequences (in particular, alterations and amendments
are introduced using a negotiation and registration pro-
cedure). In this case, it would be more correct to consider
a possible transformation of the form of a local norm of
labor law (a collective agreement as a type of a local reg-
ulatory agreement becomes such form instead of a local
regulatory legal act). Thus when considering the correla-
tion between the above sources of labor law having a
different legal nature, they should not be confused by
erroneously classifying collective contracts as a variety of
legal acts [16]. It is important that the precision of legal
definitions should be not only taken into account in
scientific research and for educational purposes but also
consistently applied in labor legislation.
Let us note that already in the 1920s the concept of the
two-fold characterand mixed natureof a collective
Social Partner Agreements and Local Regulatory Legal Acts in the Labor Law of Belarus, Russia, and Ukraine
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agreement (containing both regulatory and liability pro-
visions) was introduced in the theory of the western labor
law and laid down in German legislation [4]. Also, at the
beginning of the XXth century, L.S. Tal, founder of the
Russian labor law wrote about regulatory agreements
referring, as an example, to collective contracts of
double-fold character [17]. It may be noted that even the
Soviet labor law researchers considered labor collective
agreements to be a certain variety of labor law sources
[18].
The concept of the two-fold character of a collective
contract has become by now well-established in the na-
tional science of labor law: on the one hand, as a deal
(contract, obligation), and, on the other hand, as a regu-
latory (legal) act or a regulatory agreement [19]. Also, the
legal nature of agreements is interpreted individually de-
pending on the type and the level of adoption thereof:
General, interregional, and regional collective agree-
ments determine the general principles of the regulation
of social and labor relations.They are of a framework
nature while sectoral (intersectoral) agreements and ter-
ritorial agreements establish the common labor remu-
neration conditions, guarantees, compensations, and
benefits for personnel. We believe that by their nature
such agreements seem to be closer to collective contracts.
Therefore, we determine the legal force of these collec-
tive agreements on the basis of their mixed nature[20].
Let us consider several contemporary approaches to-
wards defining social partner agreements substantiated by
Russian and Belarusian labor law researchers.
L. Yu. Bugrov, a Russian labor law researcher, sub-
stantiated and formulated the definition of collective
agreements as legal acts regulating the relations con-
cerning the employeeslabor and amenity conditions;
signed by the representatives of the employersassocia-
tions, the associations of labor collectives (the collectives
of workers) and the state bodies or local self-government
bodies, corresponding to the level of the act being signed,
after reaching an agreement concerning the content and
the form of the given act; covering more than one labor
collective[21]. The defects that may be found in this
definition include, firstly, the use of the term legal acts
that fails to reflect accurately the legal nature of these
sources and, secondly, the determination of the scope of
application by pointing to more than one labor collec-
tiveas such definition results in confusion between col-
lective agreements and global collective contracts, in-
cluding those concluded within the framework of trans-
national corporations, that may also cover a number of
labor collectives.
O.V. Chesalina, a Belarusian researcher, proposed a
rather precise definition of a collective contract and a
collective agreement emphasising their two-fold legal
character and a special contractual procedure for their
adoption [18]. In our view, these definitions would be-
come more precise if the special contractual adoption
procedure had been made more specific by referring to
collective negotiations preceding the conclusion of col-
lective contracts (agreements).
The authors of a collective monograph published in
Russia defined the agreements in the sphere of social
partnership as a category of legal acts covering a group
of specific contracts in the sphere of labor law establish-
ing the common principles of the regulation of social and
labor relations and the economic relations associated
therewith” [22]. This definition has the drawback of con-
fusing various sources of law (legal acts, agreements). In
addition, it may be interpreted as cove ring not only
agreements but also collective contracts that, as a rule, do
not establish the general principles of the regulation of
social and labor relations. Such principles are set forth in
international treaties and other documents, the general
provisio ns of labor codes, and, to a lesser extent, in a
general agreement, and very seldom in tariff and local
agre e me nts .
E.R. Voronkova, a Russian author, defines a collective
contract as a comprehensive act containing legal norms
and the obligations of the parties in the sphere of labor,
civil, housing, ecological, and social welfare law[23].
The definition proposed by E.R. Voronkova may seem to
have certain merits indicating the comprehensive nature
of a collective contract incorporating legal norms and
obligations pertaining to various sectors. At the same
time, it would be more appropriate to replace the latter
part with a reference to the social and labor sphereas it
is difficult to embrace all possible social relations falling
under the subject of collective contractual regulation us-
ing a closed list. For example, the obligations concerning
the organisation of cultural and social activities for per-
sonnel at leisure time and the holding of sports events are
not covered by the above definition.
One should agree with the opinion of A.M. Lushnikov
and M.V. Lushnikova, taking into account the emerging
practice of concluding general agreements, that these
contracts are usually of a framework nature. At the same
time, such general agreement does not completely lose
the legal nature of a regulatory legal agreement as it is
drafted on the basis of the agreement achieved by three
parties that discuss and analyse the draft general agree-
ment prior to its signature. Sometimes directly applicable
laws are included even in general agreements, though
such cases are rather exceptions to the general rule. For
example, i.45 of the General Agreement Between the
Government of the Republic of Belarus, the Employers
Republican Associations, and the Trade Unions for the
Period of 2009-2010, in addition to various parameters of
Social Partner Agreements and Local Regulatory Legal Acts in the Labor Law of Belarus, Russia, and Ukraine
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the economic policy, remuneration of labor, employment
guarantees, protection of labor, and social partnership,
include the recommendatory norms on the inclusion in
tariff and local agreements of a number of provisions,
concerning, among other things, the contractual employ-
ment system.
4. Addressing a Problem through Separating
Social Partner Agreements and Local Acts
It is generally accepted in the general legal theory to
identify regulatory legal acts and contracts having regu-
latory content or regulatory agreements as ind ependent
sources of law [24].
In our view, the principal differences between social
partner agreements and local regulatory acts are as fol-
lows:
- while collective contracts and collective agreements
are the result of collective negotiations and the coordi-
nated expression of will by a number of social partner-
ship subjects (employees, employers, and state bodies in
trilateral agreements), local regulatory acts are always the
result of the expression of will by a single person i.e. an
employer (owner), and the expression of his regulatory
authority. In this case, the procedure for obtaining ap-
proval from or notification of the trade unions does not
transform these acts into social partner agreements as the
participation of a trade union is of secondary importance;
in these cases an act is also adopted unilaterally;
- by definition, local regulatory acts regulate relations
at the level of a specific employer (for the sole exception
of corporate acts at transnational corporations). With re-
spect to this feature, local regulatory acts have a certain
similarity with collective agreements, though the same
feature distinguish them from labor law acts and collec-
tive agreements, covering a broader scope of application
beyond the limits of an individual organisation;
- a local regulatory legal act contains legal regulations,
individual regulations of conduct to be observed by the
persons falling within the scope of application of such act.
A collective contract and a collective agreement contain
both regulatory and liability, informational, and organisa-
tional terms. The regulatory provisions of a collective
agreement are the local legal regulations established by
the parties within the scope of their authority. Regulatory
provisions are usually used in two possible situations:
firstly, when there is a clear gap in the legislation and
overcoming it by means of collective negotiations would
not contravene the general principles of law and the ex-
isting legislation; secondly, when the general provisions
of the legislation allow for further concretization of the
provisions contained therein relative to the specific fea-
tures of the given organisation (an individual subdivision).
The liability terms of a collective agreement determine
the obligations of the parties (or their representatives)
with respect to the execution of certain actions. They
comprise the specific, clearly cut obligations of the par-
ties with the indication of the periods set and the individ-
ual implementors responsible for the execution thereof.
These conditions are valid until they are fulfilled and
terminated upon their execution. The informational pr o-
visions reproduce the norms of labor law and general,
sectoral, and local agreements. The parties drafting a col-
lective agreement should not overload its text with the
provisions that do not bear a regulatory burden. The in-
formational terms should ensure the integrity of the con-
tent of a collective agreement with respect to a specific
issue. If an agreement contains the informational terms
alone, it should not be recognised as concluded [9]. The
organisational provisions are concerned with the regula-
tion of the procedure for concluding, altering, and termi-
nating a collective agreement (the terms concerning the
period of validity of a collective agreement, control over
its execution, the procedure for introducing alterations
and amendments, the liability for a failure to comply with
or fulfil a collective agreement);
- local regulatory acts differ from collective agree-
ments in the scope of applications with respect to the
number of persons as the former are universally applica-
ble with respect to all employees of the given employer
regardless of their membership in a trade union while
collective agreements cover, by a general rule, the em-
ployees who are members of a trade union in whose
name such collective agreements have been concluded.
Furthermore, there are local regulatory acts of general
application, covering the territory of the entire organisa-
tion (e.g. a staffing table), of special application, covering
only the specific categories of employees (a regulation on
a structural subdivision), or those regulating specific as-
pects of labor relations (a regulation on a competitive
election);
- a collective contract (agreement) becomes effective
from the time of signature or from the date set by the
parties, which is specified in Part 2, Article 367 of the RB
LC. Also, at the stage of putting into force local regula-
tory acts, it is necessary to determine the time of and the
procedure for putting them into force, as well as the time
of the termination of the validity of the local act that has
been previously used to regulate the respective contrac-
tual relations. It is also necessary to establish the proce-
dure for informing the employees both of the introduction
of a local regulatory legal act and of its content. These
provisions may be included both in the last section of the
local regulatory legal act and in a separate order (direc-
tive) issued by an employer. Besides, unlike a local regu-
latory legal act, a collective agreement is subject to man-
datory registration with a local executive or administra-
Social Partner Agreements and Local Regulatory Legal Acts in the Labor Law of Belarus, Russia, and Ukraine
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13
tive body. Such registration is obtained using a notifica-
tion registration procedure both in Belarus and Russia.
There are several regulations to be complied with
when putting into force local regulatory legal acts. Firstly,
an approved local regulatory legal act may be put into
force only after implementing the procedure for inform-
ing the affected employees of its content. Secondly, pur-
suant to Article 32 of the RB LC, any acts altering the
substantial labor conditions of employees may be put into
force not earlier that one month after informing the em-
ployees of its content (unless otherwise is provided for by
the existing legislation). Thirdly, if a local act contains
the regulations providing for performing the training,
briefing, and knowledge examination procedures, such
act may be put into force only after the required training,
briefing, and knowledge examination procedures have
been performed. An employer must inform employees of
the existing collective contract, though the legislation sets
no specific periods for providing such information [25].
There are also other differences between social partner
agreements and local regulatory acts. It is important not
only to take account of these differences and the accuracy
of legal definitions in scientific research and for educa-
tional purposes but also to consistently apply this ap-
proach in labor law.
The problem of correlation between social partner
agreements and subordinate regulatory legal acts was first
posed by A.Ya. Petrov [26], a labor law researcher who
did not, though, proposed any solution. Let us attempt to
propose a solution to this problem on the basis of the RB
LC.
Taking into account the above theoretical provisions
and the social partnership character of collective con-
tracts (agreements), the level at which they are concluded,
and based on the systemic interpretation of i. 2, Article 2,
Articles 7, 358, 359, 362 and 364, of the RB LC, one may
draw the following conclusions concerning the correla-
tion of social partner agreements with legislative acts and
local regulatory legal acts:
A general agreement has a priority over the reso l utions
of the Council of Ministers of the Republic of Belarus
and the acts (agreements) of a lower legal force;
a tariff agreement has a priority over the resolutions of
the ministries and state committees and the resolutions of
the local state bodies;
a local agreement has a priority over the resolutions of
the local state bodies;
a collective contract has a priority over local regula-
tory legal acts, if the appropriate social partner agreement
upgrades the legal status of an employee.
The principal arguments in favour of such hierarchy
of social partner agreements and their correlation with
subordinate and local regulatory legal acts are as follows:
- as a social partner agreement includes two or three
parties, a regulation or an obligation may not be altered
or repealed at the initiative of one of the parties (even if
such a party is a state body; in fact, a state body may re-
verse the regulation that it adopted before by concluding
a respective social partner agreement);
- the provisions of a social partner agreement combine
the interests of two or three parties while a local regula-
tory legal act is an expression of will of only one of the
parties to a social partner agreement;
- the systemic interpretation of Part 2, Article 362 of
the RB LC (A general agreement is used as a basis for
tariff and local agreements, and collective contracts) and
Part 1, Article 364 of the RB LC (the content of a col-
lective agreement is determined by the parties in accor-
dance with the general, tariff, and local agreements...)
leads to a conclusion that the general agreement, taking
into account the level of authority and the competence of
the parties thereto, has a higher legal force than all other
social partner agreements, though the latter may alter the
provisions of the general agreement to upgrade the legal
status of an employee. Tariff agreements have the same
correlation with local agreements and a collective agree-
ment, and local agreements have the same correlation
with a collective agreement.
As a proposal aimed at improving the legislation, it
may be recommended to make a number of alterations to
the RF LC and the RB LC to define a collective agree-
ment as a local regulatory act and the agreement as a
regulatory contract and to consistently differentiate these
social partner agreements from local regulatory acts. It
should be noted that the notions of a “contractand a an
agreementas used herein are synonymous. When fi-
nalizing and adopting the Labor Code of Ukraine it
would also necessary to take into account the proposals
for amending the legal terminology. We believe that the
proposals made in this article may also be of interest to
foreign labor law experts from the viewpoint of compara-
tive law.
On the basis of the above-said, we propose the authors
definitions of the notions of “a collective agreement, an
agre e me nt, and a local regulatory legal act,” reflecting
more accurately the two-fold legal nature of social part-
ner agreements and their difference from the employers
local acts, that might be taken into account by the law
makers involved in improving the provisions of labor
law.
A collective contract is a bilateral local regulatory le-
gal act, concluded on the basis of the results of the col-
lective negotiations between an employer (employers)
and employees, represented by the respective representa-
tive bodies, outlining legal norms and mutual obligations
of the parties in the social and labor sphere at the level of
Social Partner Agreements and Local Regulatory Legal Acts in the Labor Law of Belarus, Russia, and Ukraine
Copyright © 2011 SciRes. BLR
14
a specific organisation (its individual subdivision) or
within the framework of a group of organizations.
A local regulatory legal act is a document, adopted in-
dividually by an employer taking into account the opin-
ion of or by agreement with the employeesrepresenta-
tive body, containing the local legal norms regulating
labor relations and the relations associated therewith.
An agreement is a trilateral regulatory legal contract,
concluded on the basis of the results of the collective
negotiations between an employer (the associations of
employers), employees (the associations of employees),
and the state, represented by the respective representative
state bodies, outlining legal norms and mutual obligations
of the parties in the social and labor sphere at the level of
a specific occupation, sector, or territory.
5. Classification of Social Partner
Agreements and Employers
Local Acts
The existing labor legislations of Belarus and Ukraine
have similar systems of social partner agreements in-
cluding general agreements (at the republican level), sec-
toral agreements in Ukraine, tariff agreements in Belarus
(at the sectoral level) and territorial agreements in
Ukraine, local agreements (at the local level), a collective
agreement (at the level of a specific organization or its
individual subdivision).
The Russian Federation with its federal state territorial
structure has the most ramified system of social partner
agreements including two more types of agreements i.e.
regional and interregional agreements (at the level of one
or more federation subjects). Besides, Part 10, Article 45
of the RF LC allows the conclusion of other agreements
that may be signed at any other level of social partnership
to address the individual spheres of social and labor rela-
tions and other relations directly associated therewith.
Depending on their content, social partner agreements
may be divided into general agreements and special
agreements. The first group of agreements, dealing with
general issues, contains provisions relating to various
aspects of social and labor relations. Special agreements
regulate relations in a specific sphere such as labor safety,
occupational training, etc. [27]. General agreements are
used mostly in Belarus, Russia, and Ukraine while spe-
cial agreements are more often used in the EU members
states and the USA.
Under the conditions of globalisation and integration
of countries, national economies, and legal systems tak-
ing place in the XXIst century, it would be useful to di-
vide social partner agreements into international, transna-
tional, and national agreements. International social part-
ner agreements may include the ILO conventions adopted
on a tripartite basis and trilateral agreements concluded
between federations and confederations of trade unions
and employers and governments on the interstate level
(e.g. such agreements exist within the framework of the
EU). Transnational agreements may include a global
collective agreement, concluded with the participation of
a large number of large companies from various regions
of the world, and collective agreements, concluded within
the framework of transnational corporations, holdings,
financial and industrial groups with trade unions, applied
simultaneously in various organisations and subdivisions
located in various countries. The examples of national
social partner agreements have been provided above.
Referring to the classification of local regulatory legal
acts, it should be noted that neither labor legislation nor
any other branches of the legislations of Belarus, Russia,
or Ukraine contain a closed list of such acts. For example,
the labor legislation of Belarus contains only an ap-
proximate list of local acts (including local regulatory
legal acts) dealing with internal labor regulations.
The grammatical and logical interpretation of Article
194 of the RB LC (including the alterations and amend-
ments introduced by Law No.272-3, dated 20/07/2007)
identifies three groups of local and social partner sources
of labor law dealing with internal labor regulations:
1) social partner agreements ( a collective agreement,
an agreement);
2) local regulatory legal acts (internal labor regulations
(hereinafter referred to as ILR); labor protection and la-
bor safety regulations and instructions, etc.);
3) other local acts (a staffing table, job descriptions,
work (shift) schedules, leave schedules).
Thus the existing law contains a non-exhaustive list of
local regulatory legal acts and, therefore, does not limit
an employer from adopting within the scope of his regu-
latory authority any other local acts unlisted in the exist-
ing legislation.
As is seen from the above list, the local regulatory le-
gal acts used in the sphere of labor are rather diverse,
which necessitates their classification. Such classification
has both a theoretical and large practical importance al-
lowing the subject of local regulation to be correctly
separated in relevant acts so as to avoid duplication and
discrepancies between them.
Thus, we can identify the following types of local acts:
1) on the basis of the subject of local regulation:
local regulatory legal acts dealing with general em-
ployment issues covering various groups of labor rela-
tions and the relations associated therewith (an organisa-
tion's charter, ILR, a regulation on personnel, a regulation
on the operation of a branch, etc.);
local acts dealing with special employment issues
covering specific groups of employees (regulations on
recruitment of administrative personnel, job descriptions,
Social Partner Agreements and Local Regulatory Legal Acts in the Labor Law of Belarus, Russia, and Ukraine
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15
working instructions) or regulating individual aspects of
labor relations and the relations associated herewith (a
staffing table, regulations on remuneration of labor, a
regulation on the operation of a branch, etc.);
2) on the basis of the sphere of application:
Local regulatory acts covering several legal persons.
It is a rather rare group of local acts adopted at concerns,
holdings, transnational corporations that may include
local acts dealing with the issues of a general and special
nature;
Local acts covering a single legal entity as a whole.
These documents include practically all above internal
employment acts and regulations on remuneration of la-
bor and bonus payment and sometimes a staffing table;
local regulatory acts covering individual subdivisions
within the framework of a legal person (regulations on
the operation of branches, representation offices, other
structural subdivisions);
3) on the basis of the period of validity:
local regulatory acts adopted for an indefinite period
(ILR, regulations on remuneration of labor and bonus
payment, job descriptions). As the period validity these
acts is usually not limited, they remain valid till new local
acts dealing with the same issues are adopted;
local acts adopted for a definite period (leave sched-
ules, shift schedules, sometimes, staffing tables);
4) depending on the types of procedures used in
adopting an act11 [28]:
individually adopted acts, i.e. the acts adopted di-
rectly by an employer without the participation of the
emp loyeesrepresentative bodies (e.g. job descriptions
and working instructions, regulations on personnel):
negotiated acts, i.e. the acts adopted by an employer
by negotiations with a trade union (e.g. work and shift
schedules, a regulation on nonstandard working time
schedules, leave schedules);
5) depending on the existence of legislative regulation
of a respective local act:
listed acts, i.e. the acts that can be adopted under the
existing LC or any other labor legislation act (e.g. ILR,
leave schedules, job descriptions);
unlisted acts, i.e. the acts developed in the course of
the practical application of law or the acts designed by an
employer on a one-time basis within the scope of his
regulatory authority. For example, such acts may include
a regulation on personnel, a regulation on the financial
stimulation of employees.
There are also other classifications of local acts. G.V.
Khnykin identifies local acts on the basis of their legal
status: individually adopted acts; social partner and
corporate local acts; on the basis of their content: mate-
rial an procedural acts; on the basis of their form of ex-
pression: 1) contracts, agreements; 2) by-laws, regula-
tions; 3) rule s; 4) instruc tions, etc. [14].
V.A. Drachuk proposes to differentiate between local
regulatory labor law acts and local regulatory corporate
acts. According to this author, the latter belong to the
sphere of application of civil, administrative, and consti-
tutional law[9]. In our view, this classification is not
sufficiently substantiated. Firstly, the notion of “corpo-
rate lawis an abstract term embracing the legal norms
relating mostly to civil law and economic legislation [29].
As the term corporationborrowed from the Anglo -
American legal family is rather rarely used in the civil
legislation of Belarus and Russia, it would be more cor-
rect to consider civil legal or economic legal acts. Sec-
ondly, this classification becomes meaningless with re-
spect to the charters (by-laws) of legal persons containing
both the civil legal regulations and the norms of labor law
as these local acts may be included in both proposed
groups. Probably, the author should have added a third
group mixed local acts containing the norms of differ-
ing sectoral origin.
In the RB LC, the general provisions relating to local
regulatory legal acts are contained in several separate
norms (paragraph 3, Article 1, Parts 2 and 3, Article 7),
whereas the RF LC contains Article 8 including the gen-
eral norms regulating local law-making procedures. A
similar approach is used in Article 13 of the draft LC of
Ukraine. A detailed analysis of specific types of local
regulatory legal acts let alone local individual acts is be-
yond the scope of this article. Also, this topic has been
the subject of a number of scientific, educational, and
practical publications [30].
6. Conclusions
In the future, the law-makers of Belarus, Russia, and
Ukraine should apply a more consistent approach to de-
fining the notion of local acts (including local regulatory
legal acts) without confusing them with social partner
relations, and regulate more specifically both the general
issues of the local law-making process and the applica-
tion of special procedures for adopting, altering, and ter-
minating individual local acts.
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