Секція: Право.
Lavrinenko O.V., the candidate of
jurisprudence, the senior lecturer, Donetsk legal institute of Lugansk state university
of internal affairs
Place and value of social partnership in system
of principles of the modern labour right
The current condition of ordering of legal principles
in the doctrine consider as «a stage of single and unorganized searches» when
each researcher wanders in chaotic accumulation of a material, «gets» separate
legal concepts, the definition, specific features, and at own risk «awards»
with their titles of principles of the right [1, p. 131]. Meanwhile,
terminological clearness during time definition principles is caused by that
branch conceptual the device «should be not a usual set of terms, and set of
the subordinated and coordinated concepts, each of which takes the place and
purposes» [2, p. 6].
In particular, in opinion of ukrainian researcher
V.S.Venediktova, to «the basic branch principles» labour right belong, except
for others, a principle «participations of labour collectives and trade unions
in operation of business, establishment, the organization» [3, p. 27-28]. It is
thought, that the principle specified by the author in modern conditions has
lost the «basic» value and consequently cannot be attributed to number of
branch principles of the modern labour right. Resulted by the researcher of an
explanation of the maintenance of specified «principle», in our opinion, is not
convincing. We count proved reference to system of branch principles of the labour
right adjacent, but not an identical principle under substantial
characteristics, – «a principle of social partnership and a contractual
establishment of working conditions». The social partnership and contractual
establishment of operating conditions as a principle of the labour right
consists that in sphere of legal regulation of labour attitudes widely involve
not state structures (associations of employers, associations of workers),
which together with enforcement authorities (or and without their participation),
on the basis of the conclusion of collective agreements and agreements, by
cooperation, search of compromises and acceptance of the coordinated decisions
establish duties for participants of labour legal relations of a rule of
behaviour in sphere of wage labour. Social partnership as the phenomenon and as
the principle of the labour right is new to the ukrainian legal system as
against legal systems of the countries with the advanced market economy. World
experience shows, that one of the most effective means of settlement of social
contradictions is the institute of social partnership which basic purpose is
settlement and the resolution of conflicts, the coordination of social and
economic interests of workers and employers. In public attitudes which arise in
sphere of application of wage labour, various interests which by the nature can
not coincide are formed. During realization of mutual relations between
subjects of the labour right it is possible to allocate is generalized three
groups of interests: interests of wage labour, interests of the capital and
interests of a society. In Ukraine the social partnership is carried out at
national, branch, regional and local levels. On first three of them tripartite
attitudes (between associations of employers, associations of workers,
enforcement authorities) practise, and at a local level the collective
agreement consists between the employer and body which represents hired
workers. Institutes of social partnership are carrying out by his parties of consultations
and the negotiations directed on prevention and the decision of collective
labour disputes, consideration and decisions of claims and divergences which
can arise between the parties, mutual granting of the necessary information,
etc. [4, p. 51-52]. The maintenance of last principle, in our opinion, answers
realities and needs of a modern labour market for Ukraine more. Finding-out of
system and essence of branch principles as fairly marks O.V.Kuzmenko, «is
necessary to take into account a lot of factors without which it is impossible
to define their system. First... the branch principle is one of objective
parameters who enables to allocate branch in legal system... Second, the branch
principle should own an opportunity to cooperate in the system with
corresponding principles which cost in one branch plane. Thirdly, the branch
principle should own an opportunity to cooperate in the system with corresponding
principles of the maximum and lowest orders. Fourthly, to each branch principle
the allocated powerful role in the characteristic of branch of the right, and
also in the whole system of the right. Fifthly, the branch principle displays
those features of the right which have the greatest public, political and legal
values in concrete historical circumstances and in close communication with
problems which are put by the state and a society» [5, p. 147]. Let’s add, that
the key role in an establishment of branch principles should be attributed only
one attribute – the most intrinsic characteristics of the given branch
should display any starting position and to be shown directly or mediated in
norms of all without exception of branch legal institutes. Other attributes, in
our opinion, have derivative character. We make common cause in this aspect with
V.M.Semenova’s thesis, which else in 60th of the last century emphasized, that
branch principles express «specificity» of corresponding branch [6, p. 205].
Despite
of powerful value in regulation of public-labour attitudes of a principle of
social partnership and a contractual establishment of working conditions, last
is not realized to the full in sphere of labour attitudes of workers of
law-enforcement bodies of Ukraine. Among sources of legal regulation of labour
attitudes of workers IAB of Ukraine there are also what contain positions of a
social-partner direction which provide application of tools of
collective-contractual regulation (for example, clauses 3, 6, 19, 24 Laws
of Ukraine «About militia»).
The literature
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2.
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гражданского процессуального права // Сборник ученых трудов. – Вып.
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7. Лавріненко О.В.
Удосконалення правового механізму
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конф. (г. Днепропетровск, 16-30 октября 2006 г.). –
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8.
Lavrinenko O.V. Features of application of the mechanism of
social partnership in system of relations, which arise and are realized during
service by workers of law-enforcement bodies (IAB) of Ukraine: theoretical
aspects // Klicove aspekty vedecke cinnosti – 2008: Mat-ly IV
mezinärod. vedecko-prakt. konf. (Praha, 15-31 ledna 2008 r.). –
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