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Proposals on the RA Draft Law on “Voluntary activity and voluntary work”

June 15, 2020

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In the justification of the RA Draft Law ”On voluntary activity and voluntary work” (hereinafter referred to as Draft) it is mentioned that the legislative regulations in the Draft are aimed at the establishment of the institute of volunteering, including the enshrinement of  preconditions necessary to involve broad layers of society in voluntary activity and voluntary work, at supporting the formation of non-discriminatory attitude towards vulnerable groups of society and an atmosphere of mutual help, at supporting the improvement of the quality of life and lifestyle of the population, as well as at the formation of a self-organizing and active civil society[1]. Nevertheless, it should be mentioned that the regulations envisaged by the Draft contain a number of restrictive provisions which contradict the principles of the development of volunteering culture. 

 

HCA Vanadzor presents the recorded problems and proposals around them. The proposals are presented on e-draft.am platform. 

 

 

❌Problem No. 1. Restriction of voluntary work and the subject of voluntary activity

 

 The main aims of voluntary activity and voluntary work are defined in Article 5 of the Draft.

 

They are

 

📌supporting the solution of public problems,

 

📌supporting persons to gain and develop the skills necessary to solve social problems independently, as well as supporting promotion of social inclusion of persons with physical and (or) intellectual problems and (or) disability,

 

📌protection of the rights of vulnerable groups of society (including women, children, the elderly, persons with disabilities) and formation of non-discriminatory attitude towards them and an atmosphere of mutual aid,

 

📌 supporting civil protection, protection of the population in emergency situations, including the works of prevention and elimination of consequences of natural disasters, technological accidents, epidemics, accidents, fire accidents and other incidents of emergency nature, rescue operations, provision of aid to the injured, as well as disaster risks management measures,

 

📌developing and supporting and (or) raising awareness about  initiatives aimed at voluntary activity and voluntary work,

 

📌supporting the establishment of the atmosphere of social responsibility and solidarity, as well as the formation of self-organizing and active civil society,

 

📌educating public in the spirit of humanitarian ideas and principles and giving the public an opportunity to be involved in public activity,

 

📌ensuring the protection of human rights and fundamental freedoms and raising the level of public awareness about them,

 

📌contributing to the formation of the consciousness of the person on being useful by his/her education, qualification, knowledge and skills, and contributing to the acquisition of new skills and experience.

 

It is noteworthy that the mentioned list in the article is not exhaustive, thus it is assumed that voluntary work and voluntary activity with other purposes cannot be done. When defining the main aims of voluntary activity and voluntary work, public relations’ tendency to quick development and formation of new public needs should be considered as a basis. By the general formulation of the aim defined in Article 5 clause 9 of the Draft, an attempt was made to broaden volunteering types. Nevertheless, the regulation presented in the draft restricts the freedom of the will of subjects engaged in voluntary activity and voluntary work, by pursuing an illegal purpose.

 

Voluntary work, which is in line with the RA legislation and is not prohibited by any judicial act which has entered into legal force, can be done with any legal purpose, the main precondition of which should be the criterion of legality of the aim pursued and the work done. 

 

In accordance with Recommendation of 2001, Parliamentary Assembly of the Council of Europe asked the Committee of Ministers to call on the member states  to “seek to identify and eliminate, in their laws and practice, any obstacles which directly or indirectly prevent people from engaging in voluntary action”.

 

Experts agree on the opinion that the legislators should “ensure that laws pursuing special aims not restrict the opportunity of improving the favorable atmosphere for volunteers”[2]. Otherwise, the whole concept will be distorted. [3]

 

The legal field should facilitate and not supervise volunteering. The law should ensure that volunteering be protected and ecouraged and that legal requirements not impede volunteering. Excessive regulation may hinder spontaneous initiatives, overload small NGOs and weaken the spirit of volunteers[4].

 

We propose to amend Article 5 of the Draft with new clause 10 “10. Voluntary activity and voluntary work can be done with other purposes not prohibited by law”.

 

 

❌Problem No. 2. Establishment of obligations that are disproportionate for the Organization and do not stem from volunteer relations 

 

Article 10 of the Draft defines the Organization’s obligations, among which there are obligations such as 12) in case of the existence of the relevant power of attorney, to present, in a manner prescribed by law, the rights and interests of the volunteer, as well as of any other person doing volunteer work in the frame of volunteer action organized by the former, before third parties and (or) in other organizations, court, state government and local self-government bodies.

 

The analysis of the article makes it clear that an obligation is established for a volunteer to implement representation in any field, which is incomprehensible and illogical, since even in case of employment legal relationship, the labor code does not oblige the employer to protect the employee’s interests in the court, state government and local self-government bodies. 

 

We propose that Article 10 clause 12 of the Draft be edited the following way, “12. In case of the existence of a relevant power of attorney in regard to disputes arising from volunteer work and volunteer activity, to present, in a manner prescribed by law, the rights and interests of the volunteer, as well as of any other person doing volunteer work in the frame of volunteer action organized by the former, before third parties and (or) in other organizations, court, state government and local self-government bodies”.

 

 

 

❌Problem No. 3. Restrictions and peculiarities of voluntary activity and voluntary work

 

Article 6 of the Draft provides restrictions and peculiarities of voluntary activity and voluntary work. In particular, according to Article 6 part 1, “In fields or works requiring special (narrow professional) activity or work, voluntary activity or voluntary work can be done in case of having the relevant power to conduct professional activity or work by keeping the restrictions and peculiarities prescribed by law”.

 

Power means rights and obligations of a state body, local self-government body, officials, other participants of public relations, as established by a normative legal act.[5]The power to work is established by a binding legal act defining a person’s rights and obligations in a relevant work field. A person with the relevant professional knowledge and skills will not have the opportunity to do volunteer work if he/she does not have the relevant power to work with the purpose of contributing to the formation of the consciousness of being useful and acquisition of new skills and experience. Based on the peculiarities and directions of its activity and taking into account the possible impact of the volunteer’s work on other people’s life and health, the Organization should assess the volunteer’s professional knowledge and possibilities to do volunteer work. 

 

Taking into account the presented problem, it is illogical to envisage, for example, a volunteer’s opportunity to participate in measures related to the protection of the population during emergency situations, including natural disasters, technological accidents, elimination of epidemics, rescue operations, providing aid to the injured, as well as measures of disaster risk management, and to attribute the restriction to the condition of having the relevant power pertaining to professional activity or work. The mentioned restriction contradicts the part in Article 5 part 9 of the Draft, which concerns the implementation of the aim of contributing  to the formation of the person’s consciousness of being useful with his/her education, qualification, knowledge and skills and the acquisition of new skills and experience. If volunteer work is done with the purpose of acquiring a skill or experience in a specific sphere and the person does not yet have a power to conduct professional activity,  volunteering aims defined by the Draft become declarative. 

 

We propose to edit Article 6 part 1 the following way, “1. In spheres and works requiring special (narrow professional) activity or work, voluntary activity may be conducted or voluntary work may be done in case of having the relevant professional activity or work knowledge by keeping the restrictions and peculiarities provided for by law”.

 

 

❌Problem No. 4. A volunteer’s workplace

 

Article 18 of the Draft enshrines the grounds for rescinding the contract. Among the grounds, there is also the case when a volunteer is at the workplace under the influence of alcohol, narcotic drugs or psychotropic substances.

 

The regulations of the Draft do not envisage provisions defining the volunteer’s workplace, thus if the legislator takes as a basis the logic of defining the composition of the contract and essential conditions by law, this condition should also be taken into account, otherwise, the invoked ground for rescission will not work. 

 

We propose that Article 18 clause 7 of the Draft be edited the following way, “7. In case a volunteer uses alcohol drinks, narcotic drugs or psychotropic substances while conducting voluntary activity and doing voluntary work”. 

 

 

❌Problem No. 5. Maintenance of a register

 

The Draft determines the maintenance of a register. Though it is mentioned that it should be of discretionary nature and in any case, it should stem from the vounteer’s agreement, the provision is formulated in a way that the register is maintained not when the volunteer gives his/her consent, but as long as the volunteer does not refuse it. According to Article 19 part 4, “The volunteer or any other person doing voluntary work in the frame of a voluntary action may provide his/her refusal in written form and not be registered in the register defined by this Article”.

 

We find that Article 19 part 4 of the Draft should be edited the following way, “4. The register is maintained in case a written agreement is provided by the volunteer or any other person doing voluntary work in the frame of voluntary action”.

 

 

❌Problem No. 6. The rule of retroactive effect

 

According to Article 2 of the RA Draft Law of Making Amendments and Addenda to the RA Law “On Non-Governmental Organizations”, “The Law of the Republic of Armenia “On Voluntary Activities and Voluntary Work” shall also apply to voluntary employment contracts concluded by organizations with volunteers before the entry into force of this law, as well as to the relationship arising from those contracts”.

 

In connection with the above-mentioned, we state that in the RA constitution, the regulation of the validity of legal acts in time is based on the logic that refusing the action of legal acts with retroactive effect is a general rule, and the possibility of those acts to act with retroactive effect is an exception to the general rule. This approach stems from the considerations of legal certainty, legitimate expectations regarding the legislation, safeguards of human rights, prevention of arbitrariness by law enforcement bodies.  

 

We think that in private legal relations, the retroactive effect of the provisions of a new law  on a previously signed contract between the two subjects of private right does not ensure respect for legitimate expectations and implementation of legal certainty principles, since, when signing the contract, the parties did not take into account the mentioned law.  

 

 

❌Problem No. 7․ Labor capacity

 

According to Article 6 part 6 of the Draft, in the Republic of Armenia, voluntary work can be done by any person who has reached the age of 16 and has acquired labor capacity in the full scale in a manner prescribed by law. 

 

According to Article 15 part 2 of the RA Labor Code, “Labour legal capacity of citizens, their capacity to obtain and exercise employment rights through their activities, to create employment duties and to fulfil them (labour capacity) shall arise in full scale from the moment of attainment of the age of 16, except for cases provided for by the Labour Code and other laws”.

 

Taking into account that the RA Labor Code connects labor capacity with a person’s age, while legal relations related to the capacity are regulated by other legislative acts, legislation on volunteering should not envisage requirements that might hinder the formation of volunteering culture. 

 

We propose that Article 6 part 6 of the Draft be edited the following way, “In the Republic of Armenia, voluntary work can be done by any person who has reached the age of 16, except for cases provided for by law”.

 

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[1] Տե՛ս «Կամավորական գործունեության և կամավոր աշխատանքի մասին» օրենքի նախագծի և դրանից բխող մի շարք օրենքներում լրացումներ և փոփոխություններ նախատեսող օրենքների նախագծերի փաթեթի հիմնավորումը։ Հասանելի է՝ https://www.e-draft.am/projects/2516/justification

[2] Inter-Parliamentary Union, International Federation of Red Cross and Red Crescent Societies, and UN Volunteers, “A Volunteerism and Legislation: A Guidance Note"․

[3] Katerina Hadzi-Miceva, Comparative Analysis of European Legal Systems and Practices Regarding Volunteering, p.5.

[4] Տե՛ս նույն տեղում, էջ 6:

[5] Авакьян С. А. Конституционный лексикон: Государственно-правовой терминологический словарь / С. А. Авакьян — М.: Юстицинформ, 2015, с. 514.

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