DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of December 24, 2009 No. 35-rp/2009

On case on the constitutional representation of the Cabinet of Ministers of Ukraine of rather official interpretation of provisions of Article 2, the paragraph of the fourth of part one of article 3 of the Law of Ukraine "About procedure for the solution of collective employment disputes (conflicts)"

Case No. 1-38/2009

NAME OF UKRAINE

Constitutional court of Ukraine consisting of judges:

Strizhak Andrey Andreevich - the chairman,

Baulin Yury Vasilyevich,

Brintsev Vasily Dmitriyevich,

Vdovichenko Sergey Leonidovich,

Golovin Anatoly Sergeyevich,

Dzhunya Vyacheslav Vasilyevich,

Didkovsky Anatoly Aleksandrovich,

Dombrovsky Ivan Petrovich,

Kamp Vladimir Mikhaylovich,

Mikhail Ivanovich's ear - the speaker,

Lilak Dmitry Dmitriyevich,

Machuzhak Yaroslava Vasilyevna,

Nikitin Yury Ivanovich,

Ovcharenko Vyacheslav Andreevich,

Stetsyuk Pyotr Bogdanovich,

Tkachuk Pavel Nikolaevich,

Shishkin Victor Ivanovich,

considered at plenary meeting case on the constitutional representation of the Cabinet of Ministers of Ukraine of rather official interpretation of provisions of Article 2, of the paragraph of the fourth of part one of article 3 of the Law of Ukraine "About procedure for the solution of collective employment disputes (conflicts)" of March 3, 1998 N 137/98-BP (Sheets of the Verkhovna Rada of Ukraine, 1998, N 34, the Art. 227) in system communication with provisions of article 1 of this Law, paragraph of the third Item 2 parts one of article 20 of the Law of Ukraine "About the Cabinet of Ministers of Ukraine", Articles 1, 5, 16, 20, the paragraph of the sixth to article 23 of the Law of Ukraine "About the organization of employers", Article parts three 2, the paragraph of third of part two of article 3 of the Law of Ukraine "About collective agreements and agreements".

The constitutional representation of the Cabinet of Ministers of Ukraine became reason for consideration of the case according to articles 39, of 41 Law of Ukraine "About the Constitutional Court of Ukraine".

The basis for consideration of the case according to part one of article 93 of the Law of Ukraine "About the Constitutional Court of Ukraine" is practical need for explanation of provisions of Article 2, of the paragraph of the fourth of part one of article 3 of the Law of Ukraine "About procedure for the solution of collective employment disputes (conflicts)".

Having heard the judge-speaker Kolos of M. I. and having researched case papers, the Constitutional Court of Ukraine established:

1. The person of law on the constitutional representation - the Cabinet of Ministers of Ukraine - appealed to the Constitutional Court of Ukraine with the petition to give official interpretation of provisions of Article 2, of the paragraph of the fourth of part one of article 3 of the Law of Ukraine "About procedure for the solution of collective employment disputes (conflicts)" of March 3, 1998 N 137/98-BP (further - the Law) in system communication with provisions of article 1 of the Law, paragraph of the third Item 2 parts one of article 20 of the Law of Ukraine "About the Cabinet of Ministers of Ukraine", Articles 1, of 5, of 16, of 20, of the paragraph of the sixth of article 23 of the Law of Ukraine "About the organizations of employers", Article parts three 2, of the paragraph of third of part two of article 3 of the Law of Ukraine "About collective agreements and agreements" concerning concepts of "the party of the social and labor relations" and "the party of collective employment dispute (conflict) at the national level", and also polnomochnost of the Cabinet of Ministers of Ukraine to act as the party in:

- social and labor relations;

- collective employment dispute (conflict) at the national level, including solely;

- collective employment dispute (conflict) at the national level on questions which are not covered by contents of article 2 of the Law.

Proved need for official interpretation of the specified provisions of the Law Government of Ukraine by lack of their unambiguous understanding the parties during the solution of collective employment disputes (conflicts) at the national level.

2. The line items of the questions which are rather raised in the constitutional representation were stated by the President of Ukraine, the Representative of the Verkhovna Rada of Ukraine for human rights, the Ministry of Labour and Social Policy of Ukraine, National service of mediation and conciliation, committees of the Verkhovna Rada of Ukraine concerning legal policy and concerning social policy and work, All-Ukrainian employers' association, the Union of entrepreneurs small, averages and the privatized companies of Ukraine, Federation of trade unions of Ukraine, scientific Academies of legal profession of Ukraine, Academy of work and social relations of Federation of trade unions of Ukraine, Kiev national economic university of Vadim Getman, National legal academy of Ukraine of Yaroslav the Wise.

3. Constitutional court of Ukraine, considering the questions which are brought up in the constitutional representation, proceeds from the following.

3.1. According to the Constitution of Ukraine everyone has right to work which includes opportunity to earn to itself living by work which it freely chooses or to which freely agrees; the state creates conditions for complete implementation by citizens of right to work, guarantees equal opportunities in choice of profession and sorts of labor activity, realizes programs of professional training, preparation and retraining of personnel according to public requirements parts one,the second Article 43( ).

In the Fundamental Law of Ukraine the rights of everyone to proper, safe and healthy working conditions, to the salary, not below determined by the law, on rest, the right of citizens to social protection are affirmed (Article part four 43, Article part one 45, Article part one 46).

For the purpose of protection of the labor and social and economic rights and interests citizens have the participation right in labor unions, to strike, and also to other remedies of the rights and freedoms which are not prohibited by the law from violations and illegal encroachments (Article part three 36, Article part one 44, part five of article 55 of the Constitution of Ukraine).

3.2. The Cabinet of Ministers of Ukraine as the supreme body in system of executive bodies is authorized to take measures to providing rights and freedoms of man and citizen, carrying out policy in spheres of work and employment of the population, social protection, to develop and perform nation-wide programs of economic, scientific and technical, social and cultural development of Ukraine, to exercise control of objects of state-owned property according to the law, to draft the bill on the Government budget of Ukraine and to provide accomplishment of the Government budget of Ukraine approved by the Verkhovna Rada of Ukraine (Article part one 113, Items 2, of 3, of 4, of 5, of the 6th article 116 of the Constitution of Ukraine).

3.3. In implementation process of right to work, safe and its healthy conditions, on the salary and social protection can arise disagreements (collective employment dispute (conflict) between the parties) the social and labor relations concerning establishment new or changes of the existing social and economic working conditions and production life, the conclusion or change of the collective agreement, agreement, accomplishment of the collective agreement, agreement or their separate provisions, failures to meet requirements of the legislation on work (article 2 of the Law).

According to the paragraph to the fourth parts one of article 3 of the Law the parties of collective employment dispute (conflict) at the national level are hired employees of one or several industries (professions) or labor union or their consolidation, or other representatives hired employees bodies and owners, associations of owners or the bodies (representatives) authorized by them in the territory of the majority of the administrative and territorial units of Ukraine provided by part two of article 133 of the Constitution of Ukraine.

Requirements of hired employees to owners of the companies, organizations, organizations at the national level are created and affirm: in cases when the interests of hired employees are represented by labor union, trade union association - the decision of elected body of the relevant labor union, trade union association; in cases when the interests of hired employees are represented by other representatives them the organizations (bodies) - conference of representatives of the companies, organizations, the organizations elected by meeting (conference) of employees of the companies, organizations, the organizations which are in condition of employment dispute (conflict) (part two of article 4 of the Law).

The collective employment dispute (conflict) arises since the moment when the authorized representative body of hired employees, categories of hired employees, group of workers or labor union received from the owner or the body authorized by it the message on complete or partial refusal in satisfaction of collective requirements and made the decision on disagreement with the decision of the owner or the body (representative) authorized by it or when the terms of consideration of requirements provided by the Law ended, and the answer from the owner did not arrive (part one of article 6 of the Law).

3.4. The analysis of the called provisions of the Constitution of Ukraine, the laws of Ukraine "About the Cabinet of Ministers of Ukraine", "About management of objects of state-owned property" gives the grounds to consider that the Government of Ukraine as the public authority which realizes social and economic policy of the state and exercises control of objects of state-owned property is given authority which gives it the chance to be the party of collective employment disputes (conflicts) at the national level and to participate in the decision at this level of the questions determined by the law.

4. The person of law on the constitutional representation asks to give official interpretation of provisions of Article 2, of the paragraph of the fourth of part one of article 3 of the Law which concerns concepts of "the party of the social and labor relations", "the party of collective employment dispute (conflict) at the national level". However in the constitutional representation it is not given legal reasons for approvals of rather practical need for official interpretation of the specified concepts that according to Item 2 of article 45 of the Law of Ukraine "About the Constitutional Court of Ukraine", paragraph 51 of Regulations of the Constitutional Court of Ukraine is the basis for the termination of the constitutional production in this part.

Considering stated and being guided by Articles 147, of 150, 153 Constitutions of Ukraine, Articles 45, of 51, of 62, of 65, of 69, 95 Laws of Ukraine "About the Constitutional Court of Ukraine", paragraph 51 of Regulations of the Constitutional Court of Ukraine, the Constitutional Court of Ukraine solved:

1. In aspect of the questions of provision of the paragraph of the fourth of part one of article 3 of the Law of Ukraine which are brought up in the constitutional representation "About procedure for the solution of collective employment disputes (conflicts)" of March 3, 1998 N 137/98-BP it is necessary to understand so that the Cabinet of Ministers of Ukraine as the supreme body in system of executive bodies and as the subject of management of objects of state-owned property in limits of the powers determined by the Constitution and the laws of Ukraine can be the party of collective employment dispute (conflict) at the national level on the questions provided in article 2 of the Law of Ukraine "About procedure for the solution of collective employment disputes (conflicts)".

2. Stop the constitutional proceeedings of rather official interpretation of provisions of Article 2, of the paragraph of the fourth of part one of article 3 of the Law of Ukraine "About procedure for the solution of collective employment disputes (conflicts)" of March 3, 1998 N 137/98-BP concerning concepts of "the party of the social and labor relations", "the party of collective employment dispute (conflict) at the national level" based on Item 2 of article 45 of the Law of Ukraine "About the Constitutional Court of Ukraine", paragraph 51 of Regulations of the Constitutional Court Ukrainynesootvetstvy the constitutional representation to the requirements provided by the Constitution of Ukraine, the Law of Ukraine "About the Constitutional Court of Ukraine".

3. The solution of the Constitutional Court of Ukraine is mandatory in the territory of Ukraine, final and cannot be appealed.

Decision of the Constitutional Court of Ukraine is subject to publication in "the Messenger of the Constitutional Court of Ukraine" and in other official publications of Ukraine.

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