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The Labour Law of Ukraine.doc
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Theme 2. Labour legal relations. Subjects of labour law and theirs legal status

Methodical recommendations for independent work

Studying the problem of legal regulation of labour relations it is necessary to consider their types in accordance with the division into individual and collective. It is necessary to explain inextricable connection, unity and interaction between the individual labour relations and collective ones. At the same time it is necessary to pay attention to the priority and supremacy of individual labour relations, which is a background for collective labour relations existence.

Collective nature of relations under investigation determined by theirs subjective structure, necessity of employees’ collective interest guaranteeing.

Collective relations in this sphere as well as individual have labour nature. They are regulated by the norms of the labour law, arose in process of labour and in connexion with labour activity. The content of these relations is collective labour rights and associated with them duties.

Subjects of individual labour relations are employee and employer (owner of an enterprise, establishment, organisation or body authorised by him).

Students should expose the item about the legal status of employee and employer that consists of such elements as:

  1. Labour legal capacity;

  2. Basic (statutory) labour rights and duties;

  3. Legal guarantees of mentioned rights and duties;

  4. Liability for breach of labour duties.

One of the necessary conditions for the legal relations arising is labour legal capacity. In accordance with the labour law person has united labour legal passive and active capacity and ability to bear labour legal responsibility. It is ability to have and to exercise labour rights and duties, to bear responsibility for labour offences. All these elements arose at the same time and in aggregate is the labour legal capacity. Usually person gets labour legal capacity at the age of 16 years. By the consent of one of the parents or of a person who replaces him (her) can be hired persons who attained the age of 15 years. For youth preparation to the productive labour it is allowed to hire pupils who attained the age of 14 years in accordance with special procedure prescribed by the article 188 of Labour Code. Maximum age that allows concluding employment agreement is provided only in certain cases.

The breadth of labour legal capacity – it is rights and duties of an employee which student must to describe.

Further it is necessary to consider labour legal capacity of an employer – owner of an enterprise, establishment, organisation or body authorised by him or physical body, which in accordance to the law uses hired labour. Labour legal personality of juridical entity arises from the date of its state registration and last until its liquidation. Labour legal personality of physical body – employer arises from the date of attending the age of 18 years.

There are two criteria of the labour legal personality of employer – legal entity: operational and material ones. Operational criterion is ability to perform selection and placement of cadres, to organise the labour of employees, to create working condition necessary for executing of the job. The essence of material criterion consists in existence of salary fund.

Students should give general overview of labour collectives, trade unions, employer’s associations as subjects of collective labour legal relations, to analyze operative legislation that establishes their legal status.

Every party to collective labour legal relations has own authorized representatives which are the subjects of these relations. Representation in collective labour legal relations based on the labour legislation, internal regulations of an organisation, decision of elective body of local labour union.

Grounds for arising, changing and termination of labour relations should be considered as a jural fact (causal fact) provided by the labour legislation of Ukraine.

Employment agreement is main causal fact with which strictly connected arising of labour relations. Among other causal fact should be mentioned such as:

  • election to a certain post;

  • filling of position in accordance with competitive tender;

  • work permit in fact with the knowledge and acceptance of employer or his representative irrespective of properly executed employment agreement existence.

Students should acquaint themselves with the decree of Plenum of Supreme Court of Ukraine #9 d.d. 6.11.1992 «About the Practice of judicial Examination of Labour Disputes» for the understanding of peculiarities of labour relations’ arising.

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