Sarvarbek Abdullaev

Image source: www.watkinssolicitors.co.uk

 In Portugal it is not allowed for employers to disturb their employees by calling them on the phone and sending text messages after work hours. In Great Britain, the transition to a four-day work-week has begun.  However, in our country, the rights promised in accordance with the current legislation are not fully guaranteed in practice.

Employees of some state organizations work until midnight, teachers -“voluntarily” pay various school fees from their salaries. This is all happening because an average, worker in our country does not even know his/her rights are listed in the Labor Code.  All of the above are clear signs that the Labor Law not been implemented sufficiently into practice. Here are two simple questions: what is the problem and is there a solution?                                                                               

What is the problem?

In my opinion, the following can be cited as root causes of the problem:

1. Low Level of Sanctions.

According to Article 49 of the Code of Administrative Responsibility, if an official violates labor legislation, a fine 5-10 times the basic amount of calculation is applied. If such action is repeated within the same fiscal year, it will result in a fine of 10-15 times the value of the basic calculation.

Let’s do some calculations here. Starting from June 1st of 2022, the basic amount of calculation is 300,000 soums (29$). Even if the court imposes the maximum fine on an official for such an act, the amount of the fine will be 3 million soums (290$). It means that if an official violates the rights of dozens of employees under his command, he will get away with a fine of only 3 million soums. 

In addition to inadequate amount of fine, another issue arises here:  there are no separate fines for specific situations and criminal liability is not established even for forced labor. 

In the United States, for instance, there are different types of liability for different types of labor-law violations. That is to say,  there are different fines for employers delaying monthly wages, for making people work longer than prescribed by law, and for every other violation of the Labor Law.

The need to determine different forms liability for different violations of labor legislation can be compared with the description of intentional physical injury in Criminal Law, certainly in accordance with the degree of severity. According to Criminal Law, different types of liabilities are implied for intentionally inflicting light, moderate and severe harm on the body. For the first case given above,the punishment such as a fine or correctional work is mainly applied, while for the third case, the  punishment such as the restriction of freedom or deprivation of liberty can be prescribed. In my opinion, the same practice should be applied to violations of Labor law. For example, there is a big difference between the case of an employer detaining employees for  20 minutes longer than their actual work time and the one of  engaging employees in forced labor. In general, all of the afore-mentioned are violations of the Labor Law, but in these particular cases, it seems unreasonable to classify the violation of  law within the framework of one single article. While a fine may be sufficient in the first case, a more severe punishment should be applied in the second and third cases and it is because they have the signs of forced labor and other more serious violations. For such situations, unfortunately, there is no separate form of liability and a lot depends on the discretion of judge.

2. Widespread Unemployment.

Today, finding a well-paying job for a mid-level specialist in Uzbekistan is a big problem. The proof of this can be seen in that the  millions of our fellow countrymen are working in other parts of the world. In such situation, naturally, not workers, but employers have a wide range of choice. They can “point to the door” to any employee who demands his/her rights, because there is a abundance of workforce available in the  labor market, but  there only few jobs. As a result, they can employ their people by offering the least conditions among those prescribed by Labor Law, and they can hire for the lowest amount of wages. The saddest thing is that, in most cases the employers who want to avoid paying taxes do not even sign employment contracts with new-comers. The economic situation in Uzbekistan and the lack of a competitive market can be cited as some of the main reasons behind this situation. If the number of business entities and the demand for workers increase, the competition among employers for obtaining good workforce will naturally rise, and eventually the work conditions they offered to workers may also improve.

3. Old-fashioned Way of Thinking.

The reality is that, most of the cases related to the violation of the labor legislation are related to overworking.

Article 115 (Normal working hours) of the Labor Code of Uzbekistan establishes that,

“The normal working time for an employee cannot be more than forty hours a week.

In a six-day working week, the duration of daily work should not exceed seven hours, and in a five-day working week, it should not exceed eight hours.”

According to this article, the working hours of employees who work six days a week should not exceed seven hours. This article may work in self-respecting organizations, but we all know that in many businesses and organizations this law is not actually applied into practice. Many enterprises try to make their workers be at work as much as possible, and in government agencies there are cases where employees work until midnight.

The problem is that many of organizations’ managers believe that the longer hours  an employee is at work, the more work he does for a company/organisation.However, the reality is far from this. According to the  research conducted by DeskTime, people who work 6 hours a day have a the same productivity with those who are in an office 8 or more hours. In another article, it has been emphasized that the volume of useful work in the team is higher if the amount of work hours is less. 

Solution to the Problem: Organizations that Need “to be waken up”.

To find solutions and ensure the rights of workers under the labor legislation, it may be well enough for the following two organizations to start working more efficiently:

1. Labor Inspection.

The regulation of the Ministry of Employment and Labor fully defines the tasks and functions of the inspection, according to which the Inspection exercises control over the implementation of the Labor Code.

The staff of Labor Inspection can go to any enterprise or organization and carry out inspections, identify bodies working outside working hours through a raid, and create hotlines and websites to file a complaint against the employer while guaranteeing the anonymity. But until now, unfortunately, we have not seen any serious actions taken by this inspection. If you go to the official website of the Labor inspection, you will see almost nothing. There is no information about how many labor violations were detected in each of recent years. All of these is the evidence of how bad the Inspection is working. In fact, if this Inspection fully fulfills its designated task, then there would be no problem concerning this matter.

It is also worth mentioning that, in 2011, the note sent by the World Bank based on the request of the Ministry of Social Policy of Ukraine contains the experiences of reforming the Labor Inspection in the international practise, this note contains very useful information and can be introduced into the labor legislation of Uzbekistan. The note, describes what labor inspectors can do, clarifies their functions, and describes how to combat informal work while learning lessons from the experience of the rest of the world.

2. Trade Unions.

A trade union is an organization that must fight for the rights and interests of employees. According to the Labor Code, the trade union must negotiate on behalf of the employees when collective agreements are being concluded, and the trade unions’ consent is also required when the unilateral employment contract is terminated. That is, in legislation, trade unions are given sufficient authority. Unfortunately, trade unions are very weakly formed throughout the country, and in practice, they cannot fully fulfill their functions. Today’s trade unions are in such a state that almost nothing will ever change even if they practically end their activities rights the next day.

In the 19th and 20th centuries, in most countries of the West, it was the trade unions that fought for the rights of workers and went against employers for workers  rights, and as a result,  today’s West is far ahead of us on  this matter. While they are planning introduce four-day workweek and and free schedule during the work hours, here in Uzbekistan, we are still dreaming that our rights under the Labor Law will be guaranteed some day in the near future.

In order to above-mentioned organizations: Labor Inspection and Trade Unions start working efficiently, first of all, the problem of personnel should be solved. Young and ambitious personnel prefer to work in other state organizations than to work for  Labor Inspection and/or Trade Unions. The reason for this is that these two entities themselves, as a result of their inefficient work for several years, have caused the decline of their position in the eyes of general public. Therefore, more passionate employees should be attracted and encouraged to work for these organizations.

In addition, Labor Inspection and Trade Unions  should fully use the powers given to them in legislation. Whether it is the violation of labor law  enterprise on the outskirts of the country, or within more centrally located General Prosecutor’s Office, these organizations must be able to protect the rights of employees nationwide.

Conclusion

 As can be seen from the above, there are many problems regarding labor rights, but it is not impossible to find solutions for them. One of the first steps could be for the above-mentioned organizations start fulfilling their duties in practice, in relatity.  If we want to apply the Labor Code into practice, we must be able to create proper and effective Labor Inspection and Trade Unions. Without doing these, the labor legislation will just remain on paper.

Cite as:  Sarvarbek Abdullaev, “Labor Law. Why It does not Work in Practice?”, Uzbekistan Law Blog, 27.08.2022.