Labor has an exceptional role for maturing and development of a human being. It is one of the most essential means for satisfaction of the material and spiritual needs, self development and for providing sufficient life standard.  Article 32 of the RA Constitution ensures that everyone shall have the freedom to choose his/her occupation.

Protection of the workers rights is one of the most important social issues in Armenia's agenda because workers appeared to be socially vulnerable group due to the socio- economic situation and a large number of unemployment and frequently they accept violation of the rights out of the fear to lose the job. In this respect, it is essential that the workers be aware of the ways for protection of their rights and their application in practice.  

Armenia has ratified a number of international legal treaties which are important for protection of the rights. Among those documents are Revised European Social Charter, International Covenant on Economic, Social and Cultural Rights, Universal Declaration of Human Rights and a number of bilateral agreements.

One of the most significant documents is the Revised European Social Charter which provides a number of guarantees, including healthy working conditions, fair remuneration, and a right to protection in cases of termination of employment.

In 1998 Additional Protocol to the Revised European Social Charter came into force which provides the possibility for collective complaints against the state in case of violation of the Charter's provisions.

These complaints are examined by the European Committee of Social Rights. Representatives of international organizationsf employers or trade unions or other international non‑state organizations  of a consultative nature have a right to submit complaints. Armenia has not ratified the Protocol so far.

In 2008 Armenia acceded to the Additional (Optional) Protocol to the International Covenant on Economic, Social and Cultural Rights. Armenia has signed the Protocol but not ratified it yet. According to the Protocol, the Committee on Economic, Social and Cultural Rights examines complaints lodged by an individual or group of individuals of the relevant state party where they assert the violation of the rights enshrined in the Covenant. Ratification of the Protocol will grant the possibility to the workers to request protection from the Committee.

As for the intergovernmental documents, The Labor Code of Armenia was adopted on November 9, 2004 and entered into force on June 25, 2005.  The RA Labor Code regulates complexity of the working relations. Some of the issues may be regulated by the RA Civil Code. Particularly, if the employer caused damage to the employee, the norm of the Civil Code should be applied. 

If the salary was not paid or was paid with delay, the employee has a right to calculate the rate of interest defined in the Article 411 of the Civil Code and demand payment of the fine from the employer for every delayed day.

RA Court of Cassation found Article 298 of the RA Civil Code applicable in respect of the form and content of employment contract. The Article defines the consequences of nonobservance of the simple written form for a transaction. Particularly, it concerns the cases when one of the parties has not signed the contract.

RA Court of Cassation found that although the form of employment contract was not maintained, the parties are not deprived of the possibility to present other evidences in support of the contract and its conditions, except for the testimonies of the witnesses. The parties presented contracts, work record books, registration journals of the employment contracts of the employers as the evidences. RA Court of Cassation found that the employment contract was concluded based on this evidence.

On June 24, 2010 a Law on Amendments to the RA Labor Code was adopted. 109 Articles of the Code were amended. It is controversial whether the interests of employer or the worker are addressed more. However, certain amendments were intended to protect workers' rights. Particularly, the representatives elected by the employees' assembly were recognized as a body for protecting workers' rights, important role is given to the length of working experience while notifying about the termination of the employment contracts which means that the written notice should be given earlier depending on the length of working experience.

It should be stated that despite of many legislative amendments made for the improvement of the protection of the employees' rights, there are frequent cases of gross violations of employees' rights. Particularly, Article 113 of RA Labor Code provides the possibility to terminate the employment contract when the number of employees is reduced, which is preconditioned by changes in the volume of production, economic and technological conditions and conditions of organization of work, as well as by production needs. In practice this provision is widely applied in case of dismissals.

In some cases employer is trying to create this reason artificially by changing the titles, job descriptions etc. In such cases it is very difficult to protect interests of the employees in courts and prove that these reasons were created artificially. In general, the most common problem is that the employer does not register the employee and the sum of remuneration is not indicated fully in the contract. In such cases, if the salary is not paid, the employee appears in the deadlock. It is a paradox but there are no effective mechanisms to avoid such situations.

It is clear that in case of disagreement of the employee or in case if the employee  is going to protect his/her rights, complicated relations may arise and further working relations will be impossible. It leads to the situation when the employees accept violation of their rights.

The only advice could be not accepting the violation of own rights and make them publicly known. Undoubtedly, the problem should be examined from another perspective as well; the employers make this kind of violations because of the high taxes and mandatory social payments defined by the law. Therefore, solution of the problem may be to decrease the mandatory social payments.  

Vivid example of the reforms implemented in the result of social impacts is the amendments of the legislation regarding the temporary inability to work. On December 1, 2010 the Law of Temporary Inability to Work came into force which defines the procedure of payment of the pensions and provides that calculation of the pension should be made based on the average monthly wage and if the average monthly wage exceeds five times the amount enshrined in the RA Law on the minimal wages which regulates the procedure of calculation of pensions , i.e. at the moment of adoption of the law 150 000 AMD, the pensions should be calculated based on 150 000 AMD.

It means that if the monthly salary was more than 150 000 AMD, in the case of temporary inability to work the basis for calculation remains that sum. This legislative regulation led to tumultuous discussions, meetings and rallies. As a result a draft law was presented to the RA National Assembly in a short period. According to the amendment which came into force on May 21, 2011, pension of the contracting employee should be calculated based on his/her salary regardless its sum.

An important mechanism for protection of labor rights is the judicial measure. In this respect the practice of recent years of RA Court of Cassation is very interesting. According to the number of decisions (including the decision number 3-322 of 23.05.2008), the Court of Cassation addressed the issue of the terms of validity of the contract.

This is quite a painful issue because the employers prefer to sign the contract for a definite period of time and in this case after the contract term expiration the working relations may be terminated. The position of the Court of Cassation is the following: contract signed for a definite period of time is rather the exception to the general rule, i. e. the relations should be regulated by the contract of indefinite terms and only in exceptional cases an employment contract with fixed terms is acceptable.

Thereby, fixed -term employment contract maybe signed in the cases when the work to be done or conditions of performance are not permanent or temporary work is conducted: seasonal work,   secondary work, substitute an employee on leave, work in an elective position for an elected period etc. In the case of permanent working relations it is impossible to conclude a fixed term contract.

From the legal practice perspective the decisions of RA Court of Cassation play an important role in respect of other issues of the labor rights, i.e prohibition of working relations during the pregnancy (civil case number 3-357, 23.05.2008, decision), on the termination of working relations during the vacation (civil case, YCC 2894/02/08, 26.06.2009 decision) disciplinary responsibility procedure and dismissal based on that reason (CC 1/0186/02/08, 06.11.2009, decision), analyses of the loss of confidence toward the employee (YAKC 1161/02/09, 25.06.2010, decision).

An important role in protection of employees' rights has the RA Labor Inspectorate. If the employee found that the employer has violated his/her rights, he /she can lodge a complaint with the Labor State Inspectorate and ask for the inspection. The complaint may be lodged also if the situation in the production may cause heavy consequences for the health and life of the employees of the industry.

The State Labor Inspectorate conducting inspections examines and analyzes the reasons of the violations and presents recommendations on restoration of the violated rights of the employees to the employer. Besides, decision of the State labor Inspectorate where the violations are recorded may serve the evidence while applying to the Court for protection of the rights.

Hereby, it is possible to state that there are mechanisms for protection of the labor rights. However, it is important that the parties to the employment relations be informed about the mechanisms of protection and do not accept violation of their rights. As for the international mechanisms of protection of labor rights, it is worthy to mention that these documents will have an essential impact and will bring protection of the rights to the new level.

Mariam Ghulyan

Legelata law firm

Partner, lawyer