Kirill Tomashevski

Organisers:

• Kirill Tomashevski, International University “MITSO“, Minsk
• Nikita Lyutov, Moscow State Law Kutafin University

The general idea of the proposed workshop is to compare academic views, legal experience and practice regarding the transformation of employment relations in regional integration projects: EU (presented by authors from Germany, Estonia and Spain) and EAEU (experts from Belarus and Russia) with an idea to propose some vision of similar and divergent trends of development in two regions and their member states.

The challenges of the gig economy to the employment relations in the EU states have longer experience compared to the EAEU states. Nevertheless, both regions have faced rather similar problems in this respect. Non-standard and ‘new’ forms of employment such as work via online platforms, crowdsourcing, work on call, etc. are widespread in both regions, and one of the main reasons of their existence is the emergence of the gig economy.

In all countries under discussion these non-standard forms of employment cause the blurring distinction between the employment and civil-law relations.
The practice in the EU courts is far from uniformity in the qualification of the relations of self-employed citizens as labour or civil law model. Are they covered by social security regulations or not? These issues will be discussed in the reports of G. Tavits from Estonia and O. Chesalina from Germany.

One of the most problematic areas of the gig economy influence on the labour rights is collective bargaining. This issue will be discussed by T. Bazzani from Pompeu Fabra University (Spain). This report will focus both on the problems of the recognition of the “voice” of these workers and on comment of the recent decision of the Committee of Ministers of the Council of Europe (CM/ResChS(2018)11), which seems to bring a relevant contribution in ending restrictions on collective bargaining for the self-employed persons.

Russian and Belarusian labour law is heavily rooted in the Soviet past. The legislation concerning the identification of employment relationship is not an exception to this rule. Traditional approach of the Labour Codes in post-Soviet counties towards the distinction between labour and civil law contract is based on the understanding that labour law regulates the law as the process and employer instructs the employee how the work must be done, while civil law deals only with material results of work. Nevertheless, such distinction is losing its applicability in context of transformation of the types of work and growing number of forms of atypical employment.

Similarly as in the EU countries, the transformation of Russian and Belarusian labour law in the post-Soviet time shows the clear trend to differentiation and fragmentation with constantly growing number of special norms covering specific (atypical) types of employment relationships. At the same time modern labour law in EAEU states (for instance, Russia and Kazakhstan) reflects only some of recently appearing flexible forms of employment, such as temporary agency work or remote work. Other modern types of atypical work, such as job sharing or work via online platforms remain outside of scope of labour legislation. The borderline between the work as independent contractor and employment in many cases becomes more and more obscure, and it is not surprising that case law doesn’t show much uniformity in cases of distinguishing the fact of existence of employment relation. The reports of Russian researchers S. Shuraleva and N. Lyutov will investigate the new legislation in this sphere in Russia and first steps of legislators from Kazakhstan and Belarus, as well as comparability of these steps with the EU experience.

Place in the system of labour law sources

Kirill Tomashevski, International University “MITSO”, Minsk

In connection with the processes of globalization and internationalization of the economies of States in different regions of the world, the increasing pressure of competition, there are new forms of social partnership agreements at the regional levels (so called transnational collective agreements) and global collective agreements. Regional associations of employers and trade unions, transnational corporations and trade unions participate and play an important role in this process. The paper examines collision issues related to the solution of the problem of correlation of transnational collective agreements and global collective agreements with other international and national sources of labour law.

In his monograph (“System of Labour Law Sources of Belarus (history, theory and practice)”, Minsk, 2013) the author justified the concept of transition from the dual system of sources of labour law to the triune system. This system includes in addition to the traditionally subsystems of national sources of labour law, international labour law and a third, a new subsystem – supranational sources of labour law. In the development of this conceptual idea, it can be extended to the system of sources of labour law of both EU and the EAEU member States. In favor of the substantiation of the concept of a triune subsystem in the systems of modern sources of labour law of the Eurasian Economic Union (EAEU) and the EU member States, the report will provide additional arguments. The author will seek the place of transnational collective agreements and global collective agreements in the triune system of sources of labour law: do they belong to national, international or supranational sources of labour law? The speaker will also try to answer the question: what rules of labour law prevail there (mandatory, dispositive or soft law)?

This paper is almost not settled both in the national labour legislation of the member states of the EU and the EAEU , and at the international level. The author examines specific examples of transnational collective agreements and global collective agreements from the legal system of the European Union, as well as the member states of the Eurasian Economic Union, in particular the Russian Federation. The conceptual solutions to the above-mentioned problem of resolving legal conflicts between transnational collective agreements and global collective agreements and national social partnership agreements in the member states of the EU and the EAEU will be proposed.