Helsinki Citizens’ Assembly-Vanadzor

The RA Ministry of Education, Science, Culture, and Sport has developed and put up for public discussion the draft law (hereinafter Draft) “On Amendments and Additions to the Labor Code of the Republic of Armenia."

1. Article 9 of the Draft suggests the addition of the 13th Chapter of the RA Labor Code (hereinafter Code) with a new Article 100.1, the part 5 of which stipulates the following: “The parties of the contract have the right to terminate the employment contract signed within the framework of the educational program before the expiration of its validity period, by notifying each other in a written form at least 10 working days in advance.”

2. Article 24 of the Revised European Social Charter (hereinafter also referred to as the Charter) guarantees the right to protection of employees in cases of dismissal. According to the mentioned article, in order to ensure the effective implementation of the right to protection of employees in cases of dismissal, the parties are obliged to recognize: 

• The right of all employees that their employment should not be terminated without valid reasons related to their ability or conduct or based on the practical requirements of the enterprise, establishment, or service;

1. The right of the employees to proper compensation or other appropriate assistance who have been dismissed without a valid reason. 

For that reason, the parties are obliged to guarantee that if the employee claims that their dismissal is groundless, they have the right to appeal to any impartial body. 

According to interpretations of the European Committee of Social Rights (hereinafter referred to as the Committee), Article 24 of the Charter allows to terminate employment only for two groups of reasons, those related to the conduct and abilities of the employee and operational requirements of the enterprise (economic reasons), while the study of the regulation proposed by the Draft shows that the termination of the employment relationship is not conditioned with the mentioned reasons. The Committee found that as the termination of the contract is not justified by one of the grounded reasons of the mentioned Article 24 of the Charter, then such a situation contradicts the requirements of the Charter and does not ensure the right to protection in cases of dismissal. Taking into account the condition that the regulation proposed by the draft is an independent basis of the employment contract signed with a certain period of time, which provides an opportunity to dissolve the contract without any other reason and is not correlated with the assessment of the conduct or abilities of the employee, it is evident that the Committee will evaluate such a regulation as a restriction contradicting the requirements of the Charter. It's noteworthy that in its adopted conclusions regarding Armenia for 2020, the Committee has reminded the state that Article 24 of the Charter exhaustively stipulates the grounded reasons upon which the employer can terminate the employment relationships. Only two types of reasons are considered valid: those related to the abilities and conduct of the employee and those based on the operational requirements of the enterprise (economic reasons). The proposed regulation is also problematic from the perspective of legal certainty, as it does not contain clear and certain criteria for the termination of the contract signed within the framework of the educational program; therefore, it can be applied arbitrarily in practice. In addition to the above mentioned, we record that the bases of the contract termination are already stipulated by the Code and the need to make the proposed addition is unnecessary. 

Therefore, we recommend removing Part 5 of Article 201.1 of Article 9 of the Draft. 

1. According to Article 12 of the Draft, it is recommended to make an amendment in Article 201.1 of the Code and to organize professional training by the employer for five months instead of six months. The study of the draft shows that it does not contain any justification regarding the need to make such an amendment, nor is it specified by what criteria the need to shorten the effective period of professional training is determined. 

Based on the above mentioned, we recommend removing from Article 12 of the Draft the part about changing the word “six” with the word "five.” 

1. According to Article 15 of the Draft, it is recommended establishing an exception to the ban on involving persons under the age of eighteen in heavy, harmful, especially heavy, especially harmful work in Article 257 of the RA Labor Code, "Prohibition of work of persons under the age of eighteen," in the framework of a vocational education program with a work-based learning model for learners undergoing practical on-the-job training and performing specified work. 

According to Article 7 of the Revised European Social Charter, to ensure the effective implementation of the right to protection of children and young, the Parties undertake to

1. To define 18 years as the minimum age for employment with respect to those occupations that are considered dangerous or harmful to the health. 

According to the interpretations of the European Committee of the Social Rights, to apply this provision, the domestic legislation should define respective legal regulations, which define the term "hazardous work" either by enlisting the forms of such occupations or by defining the types of risks (physical, chemical, biological) that arise during such work. According to the Committee, persons under age 18 can perform heavy and harmful works no more than 4 hours daily, provided that the sanitary and health norms are strictly observed. 

Therefore, the regulation proposed by the Draft is incomplete and contradicts the provisions of Part 2 of Article 7 of the Charter and the interpretations made by the Committee regarding that; therefore, by adopting the regulation, it will be evaluated as a contradiction to the requirements of the Charter, as it does not define the duration of performing work that is dangerous and harmful to their health for the people under the age of 18. Moreover, such a regulation is also not defined in Article 140 of the RA Labor Code, entitled “Reduced working hours.”

Taking into account the above, we propose to supplement Article 15 of the Draft by specifying that students undergoing practical work training with a work-based learning model within the framework of a professional education program and performing certain specified work may engage in heavy, harmful, particularly heavy, particularly harmful work on a daily basis lasting no more than four hours. 

1. There is no need to adopt the amendment proposed by Article 17, Paragraph 1 of the Draft, because already in the case of acceptance of the additions made to Article 20 of the Code by Article 3 of the Draft, professional work experience will also be calculated in the form of work-based learning within the framework of the professional education program; therefore, we propose to remove paragraph 1 from Article 17 of the Draft.