Better Interpretation of Labor Rights’ Protection
19 January, 2012
Better Interpretation of Labor Rights’ Protection

Georgian labor law needs adequate interpretation to provide better protection of labor rights. 
The biggest inflow of appeals to the Ombudsman’s office are connected with the violation of labor rights starting 2007, since Georgian labor code approved in 2006, lags behind European and even post-Soviet countries in some aspects. 

Labor relations in Georgia are basically regulated by the labor code; however, cases that are not envisaged in the labor law fall under civil code competence. Regulations by some special legislation

like a law on trade unions for example are rare.

Moreover, applicable legal norms or their content for regulating individual issues are identified in relation with court’s judgments. International obligations undertaken by Georgia also have a significant impact on legal regulation of labor relations.
To make labor law more effective and set in line with the EU standards Georgian Young Lawyers Association (GYLA) analyzed major legislative problems in Georgian labor law and worked out recommendation that were presented by end of 2011.

Recommendations are a part of the EU funded project “Young Lawyers for Effective Protection and Stimulation of Major Labor Rights” implemented by GYLA starting 2010 in frames of which GYLA experts have been providing free legal consultancy to people whose labor rights were infringed. Based on this practice the non-governmental watchdog elaborated its recommendations.
One of the key issues is interrelation of labor law and labor agreement to make rights of employees more protected. It is an open secret that Georgian labor law is a law tailored on employers’ interests; therefore elaboration of a direct provision on terms when the labor agreement can be canceled seems adequate to GYLA. It suggests building in Georgian labor code the paragraph that “if terms envisaged by labor agreement [including international one] gets worse it should be made void”.
According to GYLA report, Georgian labor code actually includes a paragraph interpreting labor relations that emerges based on labor agreement but it is differentiated from other contracted relations through dissipated stipulations on an employer/ employee, and the precise and targeted stipulation built in the labor code will be of much higher standard to protect an employee from unforeseen deterioration of labor conditions. 
Another issue that needs better handling is discrimination and human rights violation that a job seeker faces when gets a vacancy. Georgian law does not regulate vacancy announcement and elaborates no strict criteria of announcement terms that lays ground to discrimination cases. Meantime the absence of announcement criteria makes difficult to a job seeker to establish the discrimination fact during the dispute. Therefore GYLA suggests adding to the labor code of a special paragraph on vacancy announcement that makes obligatory to provide with detailed description of the vacancy: name of the vacant position, essence, position, location, starting date and job requirements that potential candidate should fulfill, also place and term for admitting applications.

Moreover, during the interview, an employer should ask a job seeker only questions pertinent to the position that do not violate the candidate’s dignity. For example questions on health and pregnancy shall be allowed only if pregnant women or people with certain illness are prohibited from performing the suggested work. Also questions about prior conviction or criminal prosecution shall be allowed if they are incompatible with work to be performed. Restrictions to questions about religious beliefs, labor union affiliation or political beliefs should be specified.

Georgian labor code does not regulate the burden of proof in case of discrimination dispute.  According to the civil procedures code of Georgia, a party should prove grounded circumstances backing the claim. GYLA find this rule not applicable in a dispute between the employer and employee for frequently it is just impossible to an employee to get any evidence that would substantiate its discrimination claim. Based on a relevant decision of Supreme Court of Georgia that states the burden of proof in alleged discrimination cases should fall on employer GYLA recommends to build this court decision in the labor code. 
Moreover, GYLA thinks contracting for trial period should be restricted in cases of employing juveniles and persons with restricted abilities for this may promote employment in the vulnerable groups of society. On the other hand, non-governmental watchdog finds completely inapplicable giving trial period for employees recruited through competition or selection as these processes enable employer to have a complete grip whether or not the questioned candidate is eligible for the vacancy.
Georgian labor code does not regulate remuneration for overtime and heavy work, or working under harmful conditions which contradicts with the international law principles as well as labor laws of the post-soviet countries. GYLA recommends introduction of compensation norms and suggests compensation rates as following: remuneration for heavy work and working under harmful conditions should be at least 20% of the wage rate, for the overtime work – one and a half of an hourly wage, work performed on public holidays and days-off shall equal double salary, and every work performed at nighttime shall be compensated by at least 20% of an hourly wage.
As far as an employee both personally and economically significantly depends on an employer GYLA finds completely unjust certain articles of Georgian labor code that allow an employer to terminate a labor contract without any grounds and circumstances. The non-governmental watch-dog recommends building of relevant norms and preconditions while termination labor contracts.

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