Individual Labour Disputes Research Articles

Current issues of labour dispute resolution through mediation

The article presents a comprehensive theoretical and legal study of mediation as an alternative procedure for resolving labor disputes. The author proves that the urgent issue of labor law science is to make specific proposals for the development of a systematic and consistent legislative framework for the use of labor mediation in resolving labor disputes. The author draws attention to the fact that current legislation makes situational references to this concept in certain articles without disclosing its content, which leads to law enforcement problems. Thus, the Law of Ukraine "On Mediation” supplemented the current Labor Code of Ukraine with a new Article 221-1 "Settlement of Labor Disputes through Mediation”. It is emphasized that the inclusion of the new provision in Chapter XV "Individual Labor Disputes” of the Labor Code of Ukraine indicates that the legislator has limited the mediation procedure to the settlement of individual labor disputes. The author emphasizes that failure to comply with the principle of legal certainty as a component of the rule of law principle enshrined in Article 8 of the Constitution of Ukraine impedes the proper protection of labor rights. The author argues that the national legislator incorrectly applies the concept of "labor dispute” by defining mediation as an alternative way of its resolution, since in fact a "labor dispute” arises at the time of applying to the bodies which consider them. Mediation does not resolve a labor dispute, but rather disagreements between the parties to labor relations at the stage of voluntary settlement of such disagreements, which is more appropriately called a "labor conflict”. The author denies the legislator's position that the mediation procedure is applicable only to individual labor disputes. Attention is drawn to the need to extend such an institution to collective labor disputes. The author argues that it is necessary to eliminate regulatory uncertainty regarding the terminology of the concept of "mediation" and to harmonize the provisions of the Law of Ukraine "On Mediation" and current labor legislation. The existence of stable and clear legislation on mediation is an embodiment of the rule of law and will contribute to the formation of public confidence in alternative out-of-court dispute resolution procedures.

Possibilities of using interim measures in cross-border labor disputes: problem statement

The article discusses problematic issues of applying interim measures in cross-border labor disputes. The purpose of the work is to clarify the problems of adapting existing interim measures to these types of legal disputes. The results of the work are of scientific importance, since they allow us to streamline knowledge about the use of interim measures when considering cross-border labor disputes, and also represent practical significance for participants in such disputes, their representatives and courts. These issues are considered for the first time in the literature from the point of view of the problems of their resolution not only by the courts, but also by executive authorities called upon to execute judicial acts on measures to ensure claims in individual labor disputes.

General jurisdiction of courts to resolve cases resulting from legal labor relations

This article analyzes the regulations regarding the general competence of the courts to resolve labor disputes. The way of delimiting the powers of the courts from other jurisdictional bodies when solving these civil cases was highlighted. In particular, these regulations were researched both for the examination of individual labor disputes and for the resolution of collective labor conflicts. The problem existing in the judicial practice regarding the delimitation of the powers of the jurisdictional bodies in the settlement of civil cases resulting from legal employment relations was highlighted. In order to improve the regulations in this field, proposals were submitted to supplement and modify the legislative framework.

PROCEDURE FOR CONSIDERATION OF INDIVIDUAL LABOR DISPUTES

With the entry into force of the new Labor Code of the Republic of Kazakhstan, adopted in 2015, there have been significant changes in labor relations in the procedure for resolving and considering individual labor disputes. Any labor dispute between the parties is considered in two ways: pre-trial and judicial. Regulation of the procedure for consideration of individual labor disputes in the Republic of Kazakhstan is carried out on the basis of relevant legislative acts and orders. Currently, pretrial settlement of labor disputes is increasingly practiced. The desire to resolve disputes out of court is now becoming a «global trend» and is an indicator of the professionalism of the judiciary. Individual labor disputes are an integral part of any labor activity that arises in connection with any contradictions between the employee and the employer. Individual labor disputes arise within the framework of labor relations between an employee and an employer, for example, they are reflected in such aspects of labor activity as wages, working conditions, illegal dismissal, violation of employee rights, etc. Labor disputes are classified according to the subjective composition of the parties, depending on the nature and departmental subordination of the dispute. Every citizen of the Republic of Kazakhstan has the right to protect their labor rights and legitimate interests. The only way to pre-trial settlement of labor disputes is the procedure for resolving in a team by a conciliation commission. However, if the dispute is not resolved within the framework of the conciliation commission, the employee may apply to the court with a claim to protect his labor rights and interests.

Bodies for the consideration of individual labor disputes in the Russian Federation and foreign countries

The author, based on the data of judicial statistics of the Russian Federation, formulated indicators of a sufficiently large number of cases for the consideration of individual labor disputes. The article provides a comparative legal description of the bodies for the consideration of individual labor disputes in the Russian Federation and a number of foreign countries. Their features and differences are revealed. The expediency of improving the role of the CCC in the territory of the Russian Federation is argued. A proposal is being made to appoint judges who consider only cases arising in the field of labor relations.

Resolution of Individual Labor Disputes by Court Method – Theory and Practice

Individual labor disputes are objective issues of industrial relations and the labor market. The more diverse and rich industrial relations are, the more labor disputes arise and increase in number. Understanding this, in recent years, our Party and State have always paid attention to improving the legal institutions on labor in order to create a harmonious, developed and modern labor market, especially the issue of building and improving the law on resolution of labor disputes in general and individual labor disputes in particular.

Professional and legal requirements for a mediator in resolving individual labor disputes in Ukraine

The aim of the work is to analyze the qualifications and ethical requirements for a mediator, considering the peculiarities of conducting mediation in individual labor disput. Philosophical, general scientific and special legal methods of cognition were used for the research.
 The article analyzes the qualification and ethical requirements for a mediator, taking into account the peculiarities of mediation in individual labor disputes. The personality of the mediator is an important element of the mediation procedure since the outcome of the mediation procedure largely depends on his attitude and behavior. First, the mediator should be a neutral third party who supports the parties to the conflict in reaching an agreement.
 The tasks of the mediator include: establishing contact between the parties, providing the possibility of mediation, moderation, mediation in negotiations between the parties, accepting their positions, advising the parties on possible solutions, providing explanations, assistance in drawing up a settlement agreement.
 In our opinion, the successful performance of these tasks depends on proper preparation and the availability of special skills. Due to the specificity of the mediator’s qualification work, significant requirements are put forward. Thus, the issue of professionalism is ensured by the acquisition of high-quality professional education, and the presence of appropriate moral and ethical qualities and experience.
 The article proves that the mediation procedure for solving an individual labor dispute will be more effective with a mediator knowledgeable in the legal field, who understands the legal nature of the labor dispute. The mediator, understanding the legal consequences of the decision made, can direct the parties to make a decision that fully satisfied them and did not contradict the law, and help with the drafting of a mediation agreement. We believe that a mediator with a legal education excludes the additional involvement of a lawyer when resolving an individual labor dispute.

Individual labor disputes: certain issues of resolution

The article is devoted to the actual issues of individual labor dispute resolution. In particular, the author draws attention to the fact that in connection with the armed aggression of the Russian Federation, quite a large number of workers found themselves in a situation of forced migration, and some enterprises remained in temporarily occupied territories or faced the problem of the impossibility of relocation, which causes problems in the normal development of labor relations between the employee and the employer.
 An analysis of the current labor legislation and the existing approaches in the legal literature regarding the procedure for resolving individual labor disputes was carried out.
 The author highlighted the following reasons for labor disputes, including reduction of the main staff, changes in existing working conditions, dissatisfaction of the employee with the existing level of remuneration and others, in particular, and the martial law, which caused a number of reasons that impact on the occurrence of labor disputes - suspension of labor relations, the relocation of enterprises from the occupied territories and the impossibility of ensuring the safety of workers, downtime. These obstacles cause the problems in the relationship between the employer and the employee, resulting in the employees being forced to defend their rights.
 Conclusions were made by the author that, to date, the labor legislation of Ukraine ensures the implementation of the right to protect the rights of employees in individual labor relations in the pre­trial (commissions on labor disputes and through mediation) and the judicial procedure. It should be noted that an attempt was made by the legislator to regulate labor relations during the legal regime of martial law by adopting the Law of Ukraine «On the Organization of Labor Relations in the Conditions of Martial Law», but it did not define the issues related to the resolution of individual labor disputes, as well as the practice of its application provisions to date is ambiguous, which is confirmed by a number of court cases.

FAIR APPROACH IN INDIVIDUAL LABOR DISPUTE RESOLUTION IN VIETNAMESE COURTS

This article presents the legal and practical basis for resolving individual labor disputes in Vietnam, from the application of law to conciliation and arbitration practices. Important principles such as respect for the right to self-determination, negotiation, conciliation, and arbitration as well as the principle of the provision of evidence and the burden of proof are discussed in detail. At the same time, the article also highlights the role of courts in ensuring fairness and objectivity in the resolution process, along with challenges and limitations that need to be overcome. This underscores the importance of continuing to improve the labor and procedural legal system in Vietnam.<p> </p><p><strong> Article visualizations:</strong></p><p><img src="/-counters-/soc/0018/a.php" alt="Hit counter" /></p>

Trade unions of Russia in the system of social partnership: legal regulation, problems and prospects of development

The subject. Proclaiming the ideas of partnership and solidarity, the state designates a completely new development focused on socio-economic relations in Russia, involving new principles of interaction between society, business and the state. The revision of the status of subjects of social partnership will be aimed at further development of the system of guarantees of human and civil rights and freedoms. Purpose of the study. The purpose of this work is a comprehensive analysis of the trade union as a subject of social partnership based on the study, analysis and generalization of the scientific base, current legislation and practice of its application. Effective protection of the rights and legitimate interests of employees is possible only if there is an effective mechanism of implementation of trade union control over their compliance. Therefore, it seems that in the near future the share of public control over compliance with labor legislation and labor protection should increase. Methodology. In the process of achieving the goal and solving the tasks set, the general scientific dialectical methods of cognition, as well as logical, historical, comparative legal and formal legal methods were used. Structural and systemic methods are also the basis of the study. The conclusions of the work are based on dialectical unity and the struggle of opposites. The main results. In the process of scientific research, it can be concluded that a society should be able to exercise public control over the observance of human rights in this society. During the reforms, trade unions lost the right to legislative initiative at the federal level, the rights to state supervision of compliance with labor legislation and the state of labor protection, and consideration of individual labor disputes. At the same time, trade unions have re-ceived a number of new rights, for example, to participate in the resolution of collective labor disputes, in collective bargaining, to conclude social partnership agreements, etc.Despite the declared principle of independence of trade unions from the state, as a result, it is impossible to create and legalize the legal status of the trade union movement without a state regulator. Therefore, the independence of any legal entity is, in principle, relative. Nevertheless, associations of employees are provided with a sufficient amount of corporate independence, which actually ensures their national and individual characteristics. Conclusions. Trade unions are an important element of civil society. Without increasing their role, it is impossible to achieve harmony in social and labor relations. In this regard, the question of the new status of trade unions in Russia should be raised. This conclusion is justified by the fact that free and independent trade unions are the guarantors of social justice and security. Consequently, the use of the market mechanism by the population depends on whether it is possible to regulate the labor market within the framework of law and policy. Moreover, the labor market improves the status of employees in relation to employers only with strong trade unions.

Individual Labour Disputes

Individual Labour Disputes

Проблемы рассмотрения индивидуальных трудовых споров спортсменов и тренеров в юрисдикционных органах спортивных федераций и профессиональных спортивных лиг

The article is devoted to the problems of consideration of individual labor disputes of athletes and coaches in the jurisdictional bodies of sports federations and professional sports leagues. The current legislation provides for the possibility of creating bodies of pre-trial settlement of disputes in the field of physical culture and sports within the structure of all-Russian sports federations and professional leagues, which can consider individual labor disputes of athletes and coaches. At the same time, certain problems arise already at the stage of determining the jurisdiction of these bodies in terms of the possibility of considering individual labor disputes by them. Within the framework of this study, the problems related to the issues of the correlation of labor legislation and legislation on physical culture and sports, related to the procedure and conditions for the formation of jurisdictional bodies, the peculiarities of submitting a dispute for their consideration, and the observance of the principle of equality of the parties are identified. Proposals have been developed to improve the current legislation.

Legal analysis of the principles of resolving individual labor disputes

This article highlights the relevance of studying the principles of an individual labor dispute, since they represent the fundamental principles that characterize the order itself, that is, the process of consideration and resolution of the dispute. The classification of the principles of individual labor dispute proposed by legal experts in the field of labor law is considered. Based on this, the author's approach to the designation of the principles of an individual labor dispute is presented, the definition of this category is formulated. The legislative consolidation of the principles of individual labor dispute in the Labor Code of the Russian Federation is proposed.

Альтернативные способы разрешения индивидуальных трудовых споров: опыт и перспективы развития

The article considers the experience of the formation of conciliation institutions in the field of labor relations based on the analysis of Soviet labor legislation. It is concluded that the effectiveness of alternative methods of dispute settlement in a particular State depends on political, economic, legal conditions, as well as on historical prerequisites. The article considers individual problems that hinder the effective use of mediation for the settlement of individual labor disputes, as well as the conditions under which mediation is the most preferred method to resolve labor conflict. It justifies the necessity of revising the current concept of resolving individual labor disputes through the consistent expansion of alternative ways of resolving labor-law conflicts, including by improving negotiation procedures in labor law relations, the inclusion of sectoral expertise among the methods of dispute resolution. The experience of foreign States in establishing labor mediation services to resolve individual labor disputes is positively assessed. It is recommended to strengthen the role of social partnership in the development and improvement of alternative ways of resolving labor disputes. The conclusion proposes the conditions under which the most effective use of alternative procedures in labor relations is possible, including adaptation of methods of conflict resolution to the specifics of labor relations, providing them with effective legal mechanisms, variability of the forms used, as well as the formation of a culture of peaceful dispute settlement and negotiation.

Диалектическое единство исторического опыта и современных практик разрешения трудовых споров

The article attempts to show the state of the Soviet and modern periods at the level of the transition of the uncertainty of law into the certainty of law. Purpose. The purpose of the study is to outline the contours of the dialectical process at the level of forms of protection of the rights and legitimate interests of workers in resolving labor disputes, to characterize the patterns that are repeated in the dynamics of the incessant circulation of forms of law - having their own typology, universal, polymeric nature, as well as (before), (outside) and judicial procedure for resolving labor disputes. Methodology. When writing the work, the following methods were used: general philosophical (dialectical-materialistic), general scientific (analysis, synthesis, logical, historical, comparisons), special-legal (comparative-legal, historical-legal). Results. The author dwells on cyclically reproduced defects, gaps and shortcomings, passing uncertainties of law. An analysis of labor legislation and law enforcement practice at the level of the legality of labor relations allows us to conclude that the content of the right to protection (in the substantive sense) includes two possibilities: the possibility of performing protective actions by the authorized person himself and the possibility of claiming against the offender. The right to protection in the procedural (more precisely, in the jurisdictional) sense means the ability of a person to apply for the protection of his rights to jurisdictional bodies. Dialectical unity is considered in ways of protecting the rights and legitimate interests of workers. Conclusion. The means to achieve the certainty of law is the process of law enforcement and its stage of subsummation. It is necessary to revise the existing rules on the jurisdiction of labor disputes: allow a judicial procedure for resolving collective labor disputes and develop a conciliation procedure for considering individual labor disputes of a claim nature, the introduction of specialized labor dispute courts can serve to achieve certainty of law.

Судебная практика в России по индивидуальным трудовым спорам профессиональных спортсменов

The article provides an overview of the decisions made by the courts of general jurisdiction in individual labor disputes involving professional athletes in the period from August 01, 2020 to October 15, 2022. The author analyzes the judicial practice for the specifi ed period, comparing it with similar statistics for the time period from January 2016 to October 2020. An attempt was made to answer the question of why, due to the arbitrability of individual labor disputes of athletes that became possible in August 2020, the number of such disputes resolved in state courts decreased slightly.

Mediation as one of the alternative ways of solving individual labor disputes: expe-rience of foreign countries

The work examines the experience of foreign countries regarding the introduction of mediation as one of the alternative ways of resolving individual labor disputes. It is noted that today mediation as an alternative to litigation is quite developed in foreign practice and is considered one of the effective ways of resolving labor disputes, in particular, it is an effective, financially economical and timely way of reaching consensus, resolving a conflict compared to resolving a dispute in court. The popularity of mediation is due to the fact that, as a pre-trial way of resolving labor disputes, it is one of the means of quickly coordinating the interests of employers and employees, contributes to the achievement of social peace in society, and gives the parties the opportunity to save time and costs associated with the resolution of labor disputes. It is also very important that in foreign countries the mediation process is legally established in the form of laws that regulate not only the process itself, but indicate that the mediation process can be appointed by the court or the parties can voluntarily turn to an institution engaged in mediation, a legally protected by the state, the status of the institution authorized to carry out mediation. It was concluded that the introduction of mediation in Ukraine and its consolidation at the legislative level is a step in the right direction. To date, this is one of the fastest and relatively inexpensive ways to resolve disputes, which is conducted through negotiations and is used exclusively by mutual consent of the parties to the dispute. Its implementation is an effective mechanism for the reconciliation of the parties during the resolution of individual labor disputes with minimal expenditure of financial, time and human resources. The main feature of this procedure and the difference from other methods of dispute resolution is its maximum autonomy, confidentiality and voluntariness, because the decision as a result of conflict resolution comes not from the mediator (or judge or arbitrator, as in the usual dispute resolution procedures), but from the parties to the conflict, and is set out in the agreement of the parties to the dispute based on the results of mediation.

Conflicts and disputes in the field of labor: essence and interaction

Problem setting. The perception of conflicts and disputes in the field of labor should not be limited to the concepts inherent in the consideration of collective labor disputes, and the research base cannot be only the sources of labor law. For a deeper understanding of the nature and essence of conflicts and disputes one should operate in the categories of philosophy, conflictology, and general theory of law. Target of research is the substantiation of the concept of broad scope and deep content of the categories “conflict” and “labor dispute” and the impossibility of limiting them to the mechanism of collective labor disputes. Analysis of recent researches and publications. Problems of legal regulation of conflicts and disputes in the field of labor have been studied in recent years by L. Yerofeenko, S. Yerokhin, V. Kushik, I. Lykholat, J. Lyubchenko, V. Mamay, G. Rybnytsky, N. Uvarova and other scientists. Mostly they considered the mechanism of collective labor disputes, and some of them even made a comparative analysis of the categories of collective labor dispute and “collective labor conflict”. Meanwhile, the nature of conflicts in the field of labor, the relationship between conflicts and individual labor disputes have been ignored. Article’s main body. The main idea of the article is that the categories of “conflict” and “labor dispute” in the field of labor have a deep meaning and a wide scope. Conflicts in the field of labor have not only a psychological basis as irreconcilable differences and sharp confrontation. They are based on natural principles based on the age-old conflict between labor and capital. Labor disputes are not differences between the parties to social and labor relations, but a complex organizational and legal mechanism. Conflicts and disputes in the field of labor have different dimensions in time and in essence. Conflict may be present at the stage of forming the demands of the employee (labor collective), and it does not necessarily end with the end of the strike or the decision of national courts or the European Court of Human Rights. The erroneous assertion that the court decision is considered executed after the issuance of an order to reinstate the employee at work is emphasized. Since the psychological component of the conflict continues after the end of the labor dispute, the employer is not always ready to fully implement the decision of the body to consider the labor dispute. The decision to reinstate the employee should be considered executed from the date of his actual admission to work, which consists in granting the rights and obligations in full until dismissal. The role of the state in preventing and resolving collective labor disputes (conflicts) is determined by economic and socio-legal factors, including maintaining constructive cooperation in the field of labor as an important component of public life, preventing economic losses, maintaining harmony in labor collectives. Proposals for improving labor legislation have been formed. In particular, the need to introduce in the new Labor Code a person’s waiver of an employment contract as an organizational and legal means of protecting the rights and interests protected by law is substantiated. Conclusions and prospects for the development. Conflicts and disputes in the field of labor are not limited to the mechanism of collective labor disputes. Conflicts in the field of labor are objectively conditioned by the general conflict between labor and capital. If a labor dispute can be resolved through court and arbitration, then the conflict needs to be resolved through concessions and compromises and is exhausted by complete reconciliation. The state plays a significant role in the prevention and resolution of collective labor disputes (conflicts), as it is interested in economic stability, the establishment of harmony between the subjects of labor relations. Legal regulation of conflicts and disputes needs to be qualitatively improved.

Resolution of disputes on termination of the employment contract by agreement of the parties

The article is devoted to the outline of those issues that reveal the peculiarities of termination of employment by agreement of the parties. The authors draw attention to certain problems in determining the procedure for termination of the employment contract on this basis. In addition, the authors focus on the study of the characteristics of the application of the ground “by agreement of the parties.” The analysis of scientific researches of outstanding modern experts of science of labor law is carried out, their most important remarks and considerations are resulted. The latest legal opinions of the Supreme Court of Ukraine on dismissal on this ground are considered and analyzed.
 Today, considerable attention should be paid to the rules for the protection of employees’ interests in the termination of employment, as Ukrainian lawyers point out that the labor law has significantly reduced the rules aimed at protecting the interests of employees.
 The current legislation of Ukraine does not contain a legally defined relevant procedure and terms of termination of the employment contract by agreement of the parties. Lack of documentation of the agreement of the parties may have adverse consequences for the parties to the employment contract, as well as complicate the consideration and resolution of individual labor disputes. It is these circumstances that require the definition in the labor legislation of Ukraine of the procedure for reaching and drawing up an agreement between the parties to terminate the employment contract.
 The real possibility of protecting the rights of employees upon termination of an employment contract on this basis depends on the effectiveness of the mechanism of judicial and state control over the employer’s compliance with the procedure for dismissal by agreement of the parties.
 Judicial practice at the Supreme Court level provides answers to questions that are not clearly regulated by law, allowing employers and employees to make informed and lawful decisions in this area. It should be noted that today the normative regulation of the provisions on the procedure for terminating an employment contract by agreement of the parties and bringing them into line with law enforcement practice needs to be improved.

Current issues of resolving individual labor disputes

This article discusses the specifics of the jurisdiction of individual labor disputes in the Republic of Kazakhstan. Today in Kazakhstan, the legal regulation of individual labor disputes is one of the key issues in the field of labor relations. At the present stage, there is a tendency to expand the judicial settlement of labor conflicts in the current legislation. However, it should be borne in mind that the judicial procedure for resolving individual labor disputes is expensive, lengthy and not too formal, and the court cannot equally satisfy the interests of both parties. All this negatively affects the relationship between the employee and the employer, which contributes to the growth of social tension. The occurrence of labor disputes usually precedes labor offenses in the field of Labor, which are the direct cause of the dispute. A labor offense is a non-performance or improper performance of labor duties in the field of labor, as well as separation, and therefore violation of the rights of another subject of this legal relationship. The methodological and theoretical basis of the work is the general scientific dialectical method of cognition, the empirical method, and the formal and logical method. Keywords: labor law, labor code, individual labor disputes, jurisdiction of individual labor disputes, court, conciliation Commission.