Application of International Labour Standards in the Regulation of Employment Relationships in Estonia
At present, employment relationships in Estonia are regulated by individual Acts passed in the first half of the 1990's which, regardless of the constant changes taking place in Estonian society, have stood the test of time relatively well since no major amendments have been made to them. Currently, Estonian labour law is at a crossroads: individual Acts need amendment and, for this purpose, a bill for Part I of the Labour Code ("LC") has been prepared. At the same time, the position that the regulation of employment relationships by the law of obligations, following the example of a few other small European states, would be more effective in Estonia has gained ground. However, no final decision has yet been made as to which option to choose. This article focuses on how the application of principles provided by international labour standards is ensured in the different ways of regulating employment relationships. This article analyses the current status of Estonian laws in terms of their conformity with international standards and seeks to find a solution to the problem of how to ensure the implementation of international standards in the regulation of employment relationships by the law of obligations.
At present, labour and social standards are established on the international level by two institutions: the International Labour Organisation ("ILO") and the European Union ("EU").
The ILO has been active in this field for almost 80 years and during that time has issued 180 conventions and 187 recommendations. Estonia first became a member of the ILO in 1921 and rejoined in 1992. During 1921-1940, Estonia ratified 21 ILO conventions and since 1992 has ratified 8 further ILO conventions. Consequently, Estonia is currently required to ensure the implementation of the principles established in 29 ILO conventions.
Immediately after the restoration of Estonia's independence in 1991, Estonia became politically oriented toward integration with Europe. The Agreement between the European Economic Community and the Republic of Estonia on Trade and Commercial and Economic Co-operation was signed on 11 May 1992 and a bilateral agreement on free trade and trade related matters was signed on 18 June 1994. However, the most significant agreement is the Association Agreement between Estonia and the European Communities and Member States, the "Europe Agreement", under which Estonia is required to approximate and harmonise its legislation with that of the EU particularly in trade and economic and related areas, including issues pertaining to the protection of employees1. As a result, the labour legislation in force in Estonia must comply with European standards which is also a prerequisite for Estonia's accession to the EU.
In order to better understand the role of international labour standards in the Estonian legal system, a brief overview of the scope of application of ILO instruments and EU legislation is provided below.
The ILO issues conventions and recommendations providing for international labour standards. The main difference between the two is that conventions as international agreements become binding on a state after their ratification by the competent state authority. By ratification of a convention, a state assumes definite obligations, and regular international supervision is exercised over performance of those obligations. Recommendations, on the other hand, are not strictly obligatory and serve to provide the main directions for national labour policies. However, states are required to provide the International Labour Office with information concerning the state of their corresponding legislation.
Within one year after a session of the International Labour Conference, every ILO member is required to submit the instruments adopted at the session to its competent state authority to take the measures necessary for application of the corresponding principles. ILO conventions become binding on member states after their ratification by the competent state authority.
Before a convention becomes binding on a state which has ratified it, the convention must formally have entered into force. Pursuant to the ILO Constitution, a convention normally enters into force twelve months after registration of its second ratification with the Director-General of the International Labour Office. A convention becomes binding on a state one year after registration of its ratification with the Director-General of the International Labour Office. No obligations arise for a state if it does not ratify a convention but, nevertheless, every ILO member must report to the International Labour Office on the dates specified by the Governing Body concerning the national legislation in force and practice in the state, and the circumstances preventing or postponing ratification of the convention. Every ILO member is required to submit an annual report complying with the requirements established by the Governing Body on measures taken for the implementation of ratified conventions.
All ILO conventions contain provisions which set out the conditions for their denunciation. Every ILO member who has ratified a convention is within ten years after its entry into force entitled to denounce the convention by an act of denunciation which is communicated to the Director-General of the International Labour Office. If a member state does not denounce a convention within this term, the convention remains in force with respect to the state for another ten years and, therefore, denunciation will only be possible after each subsequent ten-year period. A convention is no longer binding on a state twelve months after the registration of its denunciation with the International Labour Office2.
European Community law includes a body of legal rules which apply within the framework of all three European Communities: the European Coal and Steel Community ("ECSC"), the European Community ("EC") and the European Atomic Energy Community ("Euratom"). The treaties establishing the three communities provide for the categories of legislation which these communities are competent to adopt. The ECSC founding treaty only prescribes three categories of legislation: decisions, recommendations and opinions (Article 14), whereas the EC and Euratom founding treaties distinguish five categories of legislation: regulations, directives, decisions, recommendations and opinions (EC Article 189 and Euratom Article 161). EC and Euratom regulations and the general decisions provided for in the ECSC founding treaty apply in full and are directly applicable in all Member States, that is, such regulations and general decisions do not require any specific procedure (ratification) for their entry into force at the national level but confer rights or impose obligations on EC citizens as of the entry into force date in the same way as the national law of EU Member States. Directives prescribed in the EC and Euratom founding treaties and ECSC recommendations are binding on Member States with regard to the objectives to be achieved but leave to the national authorities of Member States the choice of form and methods to be used to attain the agreed objectives. EC and Euratom decisions and ECSC individual decisions apply in full only to those to whom they are addressed and are, therefore, designated for regulation of individual issues. Opinions and EC and Euratom recommendations have no binding effect and do not confer any rights or impose any obligations on the addressees. All binding legislation is published in the Official Journal of the European Communities in all official languages of the Member States. Regulations, directives and decisions enter into force as of the date specified therein or, in its absence, on the twentieth day after their publication. Specific directives and decisions enter into force as of the moment of delivery to their addressees3.
According to the above overview, Estonia is required to fully comply with the standards established by the ILO and the EU in drafting its labour legislation.
With regard to the application of international labour standards in the regulation of employment relationships, which institutions of labour law are regulated by ILO and EU standards must be known in order to understand what should be considered in drafting labour legislation. An overview of the areas in which international labour standards have been established is provided below.
By its instruments, the ILO has regulated a broad range of labour and social issues. Much attention has been paid to the protection of the fundamental rights of employees. Several conventions provide for the principles of freedom of association for employees and employers and their right to organise, equal treatment for employees, and the prohibition of forced labour. ILO standards concern both individual and collective employment relationships. All major institutions of individual labour law are regulated, such as entry into employment contracts, working and rest time, wages, and termination of employment contracts. In terms of collective employment relationships, general standards for communication between employers and trade unions and for collective bargaining have been provided. In...