scholarly journals Labour law defects and means of overcoming them

2021 ◽  
pp. 314-322
Author(s):  
Yana Simutina
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Negative Impact ◽  
Labor Law ◽  
Labour Law ◽  
Labour Relations ◽  
Legal Norms ◽  
The Supreme Court ◽  
Labour Legislation ◽  
Litmus Test

Introduction. Defects in labour law are certainly a negative phenomenon. They can be used by unscrupulous employees or employers, violating the rights and legitimate interests of the other party to the employment relationship. In addition, defects in legal norms create obstacles to proper law enforcement, which, in turn, threatens to misinterpret them and is also the cause of conflicting law enforcement practices. The aim of the article is to clarify the general characteristics of defects in labor law, their negative impact on law enforcement practice, as well as to outline some ways to prevent and overcome defects in labor law. Results. The article is devoted to the study of defects in labour law, their varieties and characteristics. The author's attention focuses on the issue of the negative impact of defects in labor law, in particular, law enforcement practice. The most common defects in labour law are analyzed. The necessity of legislative consolidation of the principle of good faith of the parties to labour relations in labour legislation is justified. The Supreme Court plays a significant role in identifying and overcoming defects in labour law at the stage of law enforcement in labor disputes. The existing court practice is a kind of litmus test of which norms of the current labour legislation are defective, ineffective, ambiguous, etc. In this regard, it seems appropriate when finalizing the draft of the new Labour Code of Ukraine to pay more attention to case law and analyze the legal position of the Supreme Court in disputes arising from labor relations, in order to identify the most common defects of labour law and prevent them at the rule stage. Conclusions. The defects in labour legislation can be prevented both at the stage of adoption of a normative legal act by formulating the idea of the draft law, its concept, and carrying out its proper examination. At the stage of legal implementation, defects can be eliminated by introducing amendments and additions to the normative act and/or by eliminating defective labour law norms. It is possible to overcome defects in the process of law enforcement with the help of methods of interpretation, application of analogy of law and analogy of lex.

scholarly journals LABOUR DISPUTES JURISDICTION AND ITS INFLUENCE ON THE THEORY OF LABOUR LAW

2020 ◽  
pp. 70-75
Author(s):  
M. Shumylo
Keyword(s):  
Supreme Court ◽  
Subject Matter ◽  
Labour Law ◽  
Current Case ◽  
Main Research ◽  
Labour Relations ◽  
The Supreme Court ◽  
The Subject ◽  
Labour Legislation ◽  
Labour Disputes

The court's jurisdiction with regard to employment disputes is a new and unexplored aspect of the application of current labour legislation. The transformation of social and economic relations, an extensive system of specialized courts and the change of established approaches to the subject matter of labour law fundamentally modify the perceptions of labour law's place and role in the legal system of Ukraine. It leads to a reconsideration of traditional approaches to the jurisdiction in general and to the jurisdiction over labour disputes in particular. The main research method is an analytical method that has been used to analyse and categorize legal conclusions of the Great Chamber of the Supreme Court and to identify the relationship between them and the theory of labour law. The principal outcome of the research is that established approaches to the subject matter of labour law are now dated and bound to decline. The current case law of the Supreme Court continues to be in the forefront of changes concerning the application of the law and it also has a significant impact on the basis of labour law. The labour disputes nowadays can be resolved within the civil jurisdiction (based on a labour agreement), the administrative jurisdiction (labour relations in the public service) and the commercial jurisdiction (the appointment and dismissal of directors in companies). Before, the Great Chamber identified a number of labour disputes that should be settled within the alternative dispute resolution procedure.

scholarly journals The Labour Relations and the Canadian Charter; the aftermath of the first decisions

2019 ◽  
Vol 19 (4) ◽  
pp. 895-907
Author(s):  
J. Maurice Cantin
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Labour Law ◽  
Canadian Charter ◽  
Labour Relations ◽  
The Supreme Court ◽  
The Right ◽  
The Impact

The Charter was introduced at a time when there was no real demand for its existence. In this article, the author reviews the origin of the Charter and examines the impact on labour law of the initial decisions rendered by our Courts. He examines more particularly some of the first Charter decisions emanating from the Supreme Court of Canada. He writes that the Charter may have a damaging effect on labour law especially in relation to the right to strike and to picket. He concludes that the Charter is ill-suited for use in the labour relations domain.

Labour Legislation Compliance within the Small-Enterprise Sector

2020 ◽  
Vol 43 ◽  
Author(s):  
Nkhuliseni Elijah Luvhengo ◽  
Adele Thomas
Keyword(s):  
South African ◽  
Negative Impact ◽  
Small Enterprise ◽  
Small Enterprises ◽  
Employment Relations ◽  
Labour Law ◽  
African Government ◽  
Labour Relations ◽  
Labour Legislation ◽  
Conditions Of Employment

The purpose of this study was to investigate how compliance with labour law—particularly the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA)—could be promoted as sound governance practice. The study adopted a qualitative approach, and eight experts in the field were purposefully sampled and interviewed. The results suggested that small-enterprise owners were not knowledgeable about labour laws, hence their inability to comply with them. It was found that owners experienced labour laws as cumbersome, and their forced implementation had a negative impact on governance. It is suggested that different legal requirements be applied to the small-enterprise sector. Guidelines are proposed which legislators could use to assist the South African government in modifying the requirements of the LRA and the BCEA in respect of small enterprises. This study fills a gap in existing literature on small enterprises and governance in South Africa in the field of employment relations.

Waiver of Statutory Rights in Israel Labour Law: A Comparative Analysis in Light of English and American Law

1978 ◽  
Vol 13 (1) ◽  
pp. 41-85 ◽  
Author(s):  
Herbert Schreiber
Keyword(s):  
Comparative Analysis ◽  
Supreme Court ◽  
Labour Law ◽  
The Supreme Court ◽  
American Law ◽  
Labour Legislation ◽  
The Right

One of the recurring issues of Israel labour law has been whether an employee may validly waive statutory rights conferred upon him. This issue had led to a head-on collision between the Supreme Court and the Labour Court, with the latter adopting a position directly contradicting the Supreme Court's precedents on this issue.On certain issues the Courts are in agreement. Both concede that a waiver is unenforceable where the employee is unaware of his statutory rights. Both concur that labour legislation is cognitive in nature and that an employee may not initially “contract-out” statutory rights conferred upon him. However where the right has already “accrued”—that is, where the employee is entitled by law to claim certain statutory benefits as a result of past employment—the Courts are in open conflict. The Supreme Court has adopted the position that an employee may waive such existing and accrued rights by agreement, may compromise them by settlement and may submit any disputed issue respecting them to an arbitrator for determination.

STUDI KASUS PENETAPAN KEMBALI TARIF DAN/ATAU NILAI PABEAN (SPKTNP) OLEH DIREKTUR JENDERAL BEA DAN CUKAI: TINJAUAN PUTUSAN PENINJAUAN KEMBALI MAHKAMAH AGUNG RI

2018 ◽  
Vol 2 (2) ◽  
Author(s):  
Akhmad Firdiansyah ◽  
Wachid Hasyim ◽  
Yonathan Agung Pahlevi
Keyword(s):  
Qualitative Analysis ◽  
Supreme Court ◽  
Director General ◽  
Import Duty ◽  
Legal Norms ◽  
The Supreme Court ◽  
The Law

ABSTRACT In accordance with the mandate of Article 23A of the 1945 Constitution, all tax stipulations must be based on the law. To carry out the mandate in accordance with Article 17 of the Customs Law Number 17 of 2006, the Director General of Customs and Excise is given the attributive authority to issue reassignment letter on Customs Tariff and / or Value for the calculation of import duty within two years starting from the date of customs notification carried out through a mechanism of audit or re-research. To examine the application of these legal norms, there are currently Supreme Court (MA) Judgment (PK) decisions that accept PK applications from PK applicants and question the legality of issuing SPKTNP by the Director General of BC. This study uses explosive qualitative analysis to analyze the issuance of SPKTNP by the Director General of BC. The results of this study indicate that the Supreme Court is of the view that the issuance of SPKTNP by the Director General of BC is a legal defect, while DGCE considers the issuance of SPKTNP by the Director General of BC according to the provisions.Key words: official decision, reassignment letter, DCGE  ABSTRAKSesuai amanah Pasal 23A Undang-Undang Dasar 1945 Segala penetapan pajak harus berdasar undang-undang. Untuk menjalankan amanah tersebut sesuai Pasal 17 Undang-Undang Kepabeanan Nomor 17 Tahun 2006 Direktur Jenderal Bea dan Cukai (Dirjen BC) diberikan kewenangan atributif untuk menerbitkan Surat Penetapan Kembali Tarif dan/atau Nilai Pabean (SPKTNP) guna penghitungan bea masuk dalam jangka waktu dua tahun terhitung sejak tanggal pemberitahuan pabean yang dilakukan melalui mekanisme audit atau penelitian ulang. Untuk meneliti penerapan norma hukum tersebut dewasa ini terdapat putusan Peninjauan Kembali (PK) Mahkamah Agung (MA) yang menerima permohonan PK dari pemohon PK dan mempermasalahkan legalitas penerbitan SPKTNP oleh Dirjen BC. Penelitian ini mengunakan analisis kualitatif eksplotarif untuk menganalisis penerbitan SPKTNP oleh Dirjen BC. Hasil penelitian ini menunjukkan bahwa MA berpandangan penerbitan SPKTNP oleh Dirjen BC adalah cacat hukum, sedangkan DJBC beranggapan penerbitan SPKTNP oleh Dirjen BC telah sesuai ketentuan.Kata Kunci: penetapan pejabat, SPKTNP, Direktur Jenderal Bea dan Cukai.

Salary optimisation in Ukraine in the context of the economy Europeanisation

2021 ◽  
Vol 28 (3) ◽  
pp. 224-237
Author(s):  
Oleg M. Yaroshenko ◽  
Оlena Ye. Lutsenko ◽  
Natalya M. Vapnyarchuk
Keyword(s):  
Law Enforcement ◽  
European Integration ◽  
Legal Regulation ◽  
Economic Life ◽  
Scientific Result ◽  
Labour Relations ◽  
Foreign Companies ◽  
Social Interests ◽  
Labour Legislation ◽  
Subjective Rights

In the context of active legislative prospects of the labour legislation of Ukraine in the aspect of their European integration, there are issues of developing and implementing effective remuneration systems and optimising them, which should be aimed at solving the problems of developing the Ukrainian economy, ensuring a combination of economic and social interests and goals of individual employees and managers of enterprises. This requires the application of new approaches to the organisation of wages, considering the specifics of enterprises and the experience of domestic and foreign companies, as well as scientists in the field of wages. The establishment of effective mechanisms in the remuneration system, which should ensure social and economic justice in labour relations, plays a significant role in resolving the relevant issues. This is primarily the observance, protection and restoration of the subjective rights of employees to pay in case of violation. If most of the outlined general social and economic problems cannot be solved by one means or another, it is not only possible but also necessary to formulate priority purely legal tasks related to the optimisation of legal regulation of wages. The article reflects: 1) the international legal basis for the establishment of an appropriate level of wages, 2) foreign experience in the establishment of optimised wages and 3) scientific and applied approaches to optimising wages in the Ukrainian economy under the influence of European integration processes. During the writing of this article, for a comprehensive disclosure of the issues, to achieve an objective scientific result and formulate appropriate conclusions, the authors used general and special methods of cognition (dialectical, functional, Aristotelian, comparative legal, hermeneutic, method of comparison). The article concludes that the existence of many intra-industry tariff grids in Ukraine in practice only complicates law enforcement. If there really was a Unified Tariff Grid, which would consider all professions, their features and the specifics of working conditions, there would be no need for each sector of the economy to develop its own tariff grid. Currently, there is a situation when within the UTS itself there is a significant number of other internal tariff grids in various areas and industries. The UTS should be developed based on the Dictionary of Occupational Titles, as it is the unified act that contains a list of professions that exist in the economic life of Ukraine. Therefore, each of these professions must be assigned its own tariff coefficient and the corresponding category. Wage growth should depend on the employee's qualifications, level of education, and productivity

scholarly journals MENGGALI ‘ILLAT HUKUM PERBEDAAN AGAMA SEBAGAI HALANGAN WARIS

EMPIRISMA ◽  
2017 ◽  
Vol 25 (2) ◽  
Author(s):  
Muhammad Isna Wahyudi
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Legal Reasoning ◽  
Legal Reason ◽  
The Supreme Court ◽  
The Law ◽  
Religious Courts

Kompilasi Hukum Islam does not regulate interfaith inheritance distinctly. It only requires the testator and the heirs have the same religion. At court, judges of religious courts employ obligatory bequest (waṣiat wājibah) to divide inheritance to non-Muslim heirs, based on jurisprudence of the Supreme Court Number 368 K/AG/1995. As the result, different faith still become hindrance for Muslim and non-Muslim to inherit each other due to law enforcement without considering the legal reasoning (ratio legis) of the law. In this case, it is important to investigate the legal reason (ratio legis) of the hadith that prohibits the interfaith inheritance as this article tries to do. To do the investigation, the author employs Islamic legal theories (uṣūl fikih) and hermeneutics approach. As the result, the author comes to the conclusion that the ratio legis of the hadith that prohibits the interfaith inheritance is due to hostility and crime element and not due to different faith. Keywords: Interfaith Inheritance, Ratio Legis, Equality

7 The Supreme Court and Northern Ireland

2019 ◽  
Author(s):  
Dickson Brice
Keyword(s):  
Law Enforcement ◽  
Northern Ireland ◽  
Supreme Court ◽  
Criminal Law ◽  
The State ◽  
Good Friday ◽  
The Supreme Court ◽  
Good Friday Agreement

This chapter begins by considering the arms trial in the early 1970s and outlines the gist of the Sunningdale Agreement in 1973 before considering the challenge to that Agreement dealt with by the Supreme Court in the Boland case. There follows an examination of the Court’s views on the constitutional status of Northern Ireland in McGimpsey v Ireland, decided in the wake of the Anglo-Irish Agreement of 1985, and on the constitutionality of the Belfast (Good Friday) Agreement in the Riordan case. There is an analysis of Law Enforcement Commission’s report and of the Court’s views on resulting Criminal Law (Jurisdiction) Bill 1975. The focus next moves to the shifting views of the Supreme Court on when it is appropriate to extradite suspected terrorists to Northern Ireland. Cases concerning Dominic McGlinchey, Séamus Shannon, Robert Russell, Dermot Finucane and Owen Carron are examined, as is the state of extradition law today.

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