Некоторые аспекты проблемы ограничения конституционных прав (на примере экономических прав)
The article deals with well-known Laval case of European Court of Justice. This case has provoked, on one hand, the big discussions over the theoretical problem of collision of labour and economic rights. On the other hand, it has illustrated the problems that followed the European Union enlargement, associated with incomes’ gap of workers in the “old” and “new” EU member-states. Both aspects of Laval case are interesting for Russia from comparative perspective in light of balancing social rights and economic freedoms and prospects of economic integration of Russia with other countries within the Eurasian region.
The Labour Code of Russia was amended in 2013 in a way that a new body of workers’ representation – works councils – can be established. These amendments don’t add any new rights or obligations neither to employers nor to employees. They are made with purely political purposes and only imitate the creation of the analog of the well-known German system of works councils.
The author comes to conclusion that currently existing rights in informing and “taking into account” the workers’ representative body opinion, contained in the Russian Labour Code, are not sufficient for existence of the real industrial democracy.
The article is aimed at answering the question, whether an implementation of functioning works councils may be beneficial to the adequate balancing of social rights of workers and economic rights of the employers.
Although the full transposition of the German works councils system seems to be impossible, some of its positive features may be effectively adopted in the Russian law. For example, the employer’s obligation to consult workers shouldn’t be dependent on the existence of the workers’ representative bodies. Besides, a range of issues that are subject to the mandatory informing of workers by the employer must be significantly broadened. The procedure of consultations must include the real negotiations between the employer and employees on the basis of good faith principle.