Nurasheva Bibigul
PhD2 doctoral course of
the Kazakh Humanitarian and Law University
in Astana, Kazakhstan
The
role of unions in protecting workers' labor rights of the Republic of
Kazakhstan.
The Republic of
Kazakhstan - is a democratic constitutional state, which is characterized by
active participation of citizens in political life, the existence of forms of
direct and representative democracy, the general system of rights and freedoms
guaranteed by the Constitution. In particular, p.1st.23 RK Constitution gives
every person the right to association, including the right to form trade unions
to protect their interests. Freedom of association guaranteed. According to the
International Labour Organization Convention № 87 (1948), "On Freedom of
Association and Protection of the Right to Organize," workers have the
right to establish organizations of their choice, to join such organizations to
express and defend their interests. Likewise, this law gives the ILO Convention
and entrepreneurs.
Mention of trade
unions in the Basic Law of the country is not by accident. It testifies to
their special status as the most massive public organization operating in the
Republic of Kazakhstan and unites in its ranks about two million trade union
members.
The largest of all
the trade unions is the Federation of Independent Trade Unions of the Republic
of Kazakhstan (TUFRK). In her volunteerism includes 26 national industrial
unions, associations and 14 regional alliance of trade unions of the capital -
the city of Astana. Their structure includes more than 17 000 primary, 440 city
and district, 181 regional trade union organizations [1].
The legal status of trade unions are
now determined by the Code and the law of the RK on April 9, 1993 "On
Trade Unions". The Act establishes the legal basis for the organization
and activities of trade unions, contains provisions that require the bodies of
state power and administration, employers, officials of the administration
contribute to the production activities of trade unions. The law gave the
unions a number of social and labor rights at all levels of their activities,
from production to the national level, and establishes the guarantees of these
rights.
The main function
of trade unions - to represent and protect labor rights and interests of its
members. In accordance with the agreements and collective agreements, union
committees and employers may decide to organizations and other social and labor
and economic issues. In addition to the protective function of the preserved function
of trade unions for the implementation of public control over observance of
labor legislation (LC st.340 SC) [2, 87].
The union - is a
voluntary public association of citizens bound by common industrial and
professional interests on the nature of their work created in order to
represent and protect their social and labor rights and interests. Its main
functions (activities) are representational (at all levels of the organization)
and the defensive - to protect and enhance the social and labor rights and
interests of workers. The unions have arisen first in the world in the middle
of the XIX century in England, then as the most industrialized country, with a
protective function for them to defend the professional interests of workers
[3, 37].
Despite the fact
that trade unions are not a political organization, they cooperate with all
political parties, various public associations and movements that actually seek
to preserve and expand social protection to citizens of the RK, interact with
them in organizing and conducting democratic elections to the authorities .
Its protective
function implemented by trade unions negotiate with employers' associations,
government, executive power bodies, local authorities, seeking through a system
of social partnership to establish the cost of labor in the labor market,
creating working conditions that meet safety and hygiene, social safety net for
those special needs of the state (for families with children, the disabled,
elderly, adolescents, and other categories) [4, 37].
Currently, there
is an urgent need for understanding of the legal status and role of trade
unions in the modern, independent state and society, which in recent years
undergone reform. This resulted in a changing economic and regulatory
activities of trade unions. The unions have lost some of the features are
numerous their rights, including the jurisdictional nature, have been changing
the legal form of their activity. This situation exacerbated an important
social problem - the problem of effectiveness of the protective function of
trade unions. The effectiveness of the implementation of the protective
function of trade unions, trade unions, the definition of state protection of
workers' rights, which is directly dependent on the provision of appropriate
legal instruments, consolidation and defined in the legislation regulating the
market conditions meet the legal form of their activities.
In the
literature, identified gaps and legal forms of trade union activities set forth
the RK TK, some legal rules governing the protection of trade union rights of
workers, constantly discussed the need for legislation to improve the
protective function of trade unions. However, recent changes in TC RC
substantially the legal status of trade unions are not affected.
At the same time
there is a persistent decline in the number of union members in the primary
trade union organizations. Trade unions is no one to defend, which further
actualizes the question of the effectiveness of the protective function of
trade unions. Employees choosing a way to protect labor rights more often opt
for self-defense or judicial protection of labor rights.
In some cases,
unions do not operate within the legal forms. They have exhausted all means to
protect workers' rights without reaching any result, appeal to the President of
RK, the Attorney-General RK, indicating that non-compliance with one of the
basic principles of labor law, which is to establish the necessary legal
conditions for optimal coordination of interests of parties to labor relations
and the interests of the State (Article 4 TC Code).
All this, in our
opinion, causes the need for a comprehensive scientific analysis of the legal
regulation of trade unions and the legal forms by which they protect workers'
rights under applicable law. While promoting its core, a protective function.
This approach is also due to the fact that the legal status of trade unions is
a cross-cutting, because the various branches of national legislation
regulating various aspects of their activities. This approach seems to be
fruitful and allows for cross-sectoral and interdisciplinary nature of even the
kind of research, because the situation of trade unions and their activities
are the subject of study not only of legal science, and sociology, economic,
etc.
It is generally
accepted that trade unions play an important role as social controls in
society. The emergence, establishment, development and strengthening of trade
unions took place during the last 200 years. The unions have arisen against the
law. But the fact that they have been around for over 200 years, suggests that
this process is an objective reality. Regardless of whether the state
recognizes trade unions as a full participant in public relations or not, they
become established fact. The trade union movement has arisen because of the
objective reality of having to protect employees in the labor market. From
prohibited and persecuted groups of corporate end of the XVII and XIX
centuries, beginning today, the trade unions in developed democratic countries
have become an essential element of civil society.
In the scientific literature, in
most cases, the task of trade unions identified as common problems faced by the
then existing political system of society.
In the works of EA Ivanov, AI Tsepina, A.
Schiglika tasks and functions of trade unions are regarded as part and parcel
of the political system. At the same time, trade unions, as one of the
components of the political system to solve the problems facing the system in
general and the trade unions in particular, the use of their specific functions
distinct from the functions of other organizations.
The study found
that in the scientific literature there is no common understanding and
definition, as well as use the terms "task" and "function",
which is typical not only for the science of labor law, but also for other
social sciences. Thus, the term "function" for many authors is
identical to the concept of "role", ie is an expression of the value
of trade unions in society. In addition, the functions of trade unions is often
referred to as the activities of their bodies, or do any activities of trade
unions. Sometimes the tasks and functions are considered as equivalent
concepts.
The most
reasonable is the position of those writers who in defining the functions of
trade unions are based on the provisions of the general theory of law and the
state (OI Snigireva, AI Tsepin, N. Ermolov, EA Smith), which has long been
developed a definition of the functions of state and law as the main areas of
activity. In the general theory of law established the concept of function as
the principal directions (and hand) in the activities of the state to address
the challenges facing the state at a certain stage of historical development,
which expresses the essence of his subject and gives him a social and political
characteristics.
The functions of
law - is the direction of the legal effects on the will of the people, behavior
and social relations. This same point of view of many scientists and came to
the functions of trade unions. In spite of some differences existing in the
definition of the functions of trade unions revealed, there is the fact that
the majority of authors believe that the function of trade unions - is the
main, main line, the side of their efforts to solve their problems with vesting
certain rights. The above definition of the functions of trade unions did not
remove the existing labor law in the science of differences in the names and
functions of trade unions. So controversial is the assertion of the individual
authors oppose a uniform classification of the functions of trade unions.
References:
1. www.fprk.kz
2. Two. Uvarov VN Labour Law of the Republic of Kazakhstan: A Textbook. 2nd
ed. - Almaty, Rarity, 2008.-616 p.
3. Three. Labour Law of the Russian Federation: a textbook / MB Smolensky
[and others]. - Rostov N / A: Phoenix, 2011. - 491 p. - (Higher Education).
4.
State
and Law, 2005. Number 4