Assessment of new Draft Law “On Public Service” in the light of labor rights.

The Parliament of Georgia is reviewing the new draft law “On Public Service” through third hearing. The draft law entails significant conversion of the public sector and in parallel with several essential amendments, proposes a new way of regulating the rights of public sector employees.

EMC welcomes the fact that the Parliament improved the originally presented draft law in a Committee Hearing regime and reflected important issues at the request of stakeholders, including EMC. Such issues are:  determining daily working hours of civil servants, guaranteeing the right to strike, exclusion of possibility of subjective allocation of monetary awards, firing on the basis of retirement age and etc. However, number of important issues submitted by the organization was not taken into consideration, which is why the draft law does not ensure adequate protection of civil servants’ interests. In some cases, the law even worsens the legal condition of civil servants as compared to the existing legal standards. In particular:

  1. The draft law allows non-enforceability of court decision in unfair dismissal cases, when the court has ruled in favor of the employee. If court renders decision recognizing unfair dismissal and imposes an obligation of reinstatement of a person in an institution, the person shall not be reinstated, unless there is the relevant or equivalent position in the institution at hand. In those cases, instead of reinstatement, the person shall be transferred to the reserve of Civil Service and shall be reimbursed compensation for 6 months. If the position cannot be found even in this period of time, compensation benefits cease and the court decision remains unenforced. We believe that the existing record substantially deteriorates the standard set by the current law, according to which, in case of recognition of unfair dismissal by the court, the public servant shall be immediately reinstated. [1] The Record is also at odds with the Constitution of Georgia, Article 82, paragraph 2, which sets forth the obligatory nature of court decision for all state bodies and persons, throughout the whole territory of the country.
  2. The draft law does not provide for compensation of overtime work by increased amount of wages; It also does not specify the lower threshold for overtime work compensation and leaves the issue at the disposal of bylaws, finally, leaving overtime work remuneration standard beyond parliamentary regulation. Working overtime is common practice for persons employed in public as well as in private sector, which is why the proper regulation of overtime work by the law makers is of crucial importance. According to the International Labor Organization standards, overtime work must be reimbursed to a larger amount than the normalized labor, but not less than the fourth of the value of salary in an hour, [2]which we believe, must be reflected in the “Law on Public Service”. The need of such regulation is additionally shown by the Labor Code and relevant practice. The Code provides for obligation for reimbursement of overtime work without indicating the lower threshold, which allows the employer to pay for overtime work in an inadequate manner. Despite this, the draft law at hand does not provide for binding nature of public servant’s consent to overtime work, which worsens the situation of public sector employees in comparison with private sector employees [3].
  3. Unlike the current Law, under the Draft Law public servants are not entitled to conclude collective agreements with employer, which is an obstacle for realization of employees’ labor rights. Leaving the right to collective bargaining beyond regulation, the standard created by the current Law on Public Service is deteriorated, according to which the right to collective bargaining is regulated by the Labor Code. The International Labor Organization states that unions of public servants should be allowed to all legal machinery to negotiate contractual terms and conditions. [4] One of the important mechanisms for agreement is collective bargaining. [5]
  4. The draft law unreasonably and unnecessarily increases the probationary period, during which the employee is dismissed by a simple procedure and without compensation. The draft law, increases the probationary period from 6 to 12 months, which under certain conditions, may, in addition, be extended by 6 months. The proposed amendment worsens the current standard operating in public service and puts public servants in unequal situation compared to persons employed in private sector. [6] The amendment also violates requirement on “reasonable” probationary period set forth by the European Social Charter [7]; In addition, such deterioration is ill-founded, as in the presence of independent Department of Human Resources, timely appointment of public officer to the position must be ensured.
  5. According to the draft law, appropriate standard of substantiation for the staff reduction decision is not required for the dismissal of employees due to the reorganization, liquidation and/or merging of the institution, that would exclude the possibility of illegal dismissal of civil servants from their positions. The decision making procedure itself, which can be resulted in the dismissal of a person from work, is not transparent and cannot provide the involvement of every interested party for protection of their rights. The draft law does not establish the obligation of the authorized person to properly justify the necessity of the staff reduction and the criteria of the appointment, or inability to appoint specific employee on a new or the same position established as a result of reorganization, liquidation, merging or similar process. It should be noted that the public service bureau is excluded from the process before the decision about reorganization/liquidation and merging is made. We believe that before making decision about the staff reduction, for fair and transparent handling of the process, direct inclusion of public service bureau and those persons, whose dismissal can become part of the agenda, is necessary.
  6. The draft law does not reflect the principle of the religious neutrality of public servants, which is a step back from the state in regards of application of antidiscrimination policy, the implementation of the principles of equality and impartiality. The draft law does not reflect the secular character of the public service realized in a form of a transfer of secular principle, recognized by the constitution, in public sector. In addition, the project does not make a note for establishing secular state principle in the public service and, respectively, for providing religious impartiality of public servants.
  7. For purposes of participation in the servants’ competition, submission of the application is available only by electronic form, which does not create the guaranties of accessibility to the competition for persons with disabilities and various social groups. Introduction of the electronic system is a significant step for establishing homogenous and flexible mechanism for acceptance of the servants in public service, however, the offered unified form does not consider the condition of those people who does not have access to the internet resources, also the needs of the persons with disabilities, as the electronic system is not adapted for blind and short-sighted people.
  8. The offered project, as well, as the current law, allows the dismissal of a person from work because of the health condition. As the project does not define the essence of the “health condition”, a possibility is created to use above-mentioned norm for the dismissal of public servants on the grounds of the disability. The draft law does not provide enough clarification about the difference between the concepts of „the impossibility to continue working on the held position due to health condition” and temporary or permanent disability, provided by law, which creates the space for using the mentioned note widely and without justification, including, towards the persons with disabilities. In addition, despite the fact that the current law does not provide the difference between the above-mentioned concepts clearly, it permits the temporary release of the public servant from the rights and liabilities “due to the health condition” (for 3 months), during the period of which the employee retains its post, and remits its position, as soon as the period expires. [8] This kind of reservation is not taken into account by the new draft law, with which it worsens current legislative standard.

EMC believes that despite consideration of separate remarks, the presented project still consists of major flaws and cannot provide the proper guaranty of labor rights for the public servants.  In addition, in some cases, it worsens the rights of the employees and opposes to the international as well as, the current legislative standards.

[1]The Law on Public Service, Article 127, paragraph 5.

[2]R116 – Reduction of Hours of Work Recommendation, 1962 (No. 116) Chapter D, Art 19 (1) (2) ; 1919 Convention #1, Article 6.2.

[3] The Labor Code of Georgia, Article  17.

[4] C151 – Labour Relations (Public Service) Convention, 1978 (No. 151).Art. 7

[5] R091 – Collective Agreements Recommendation, 1951 (No. 91), art.II (1) (2).

[6] The Labor Code of Georgia, Article 9, paragraph 1.

[7]The European Social Charter,  Article 24, paragraph 2, sub-paragraph  „b“.

[8] The Law on Public Service, Article 46, paragraph 3.