PROTECTION OF RIGHTS AND FREEDOMS OF MINORS IN EMPLOYMENT: INTERNATIONAL LAW AND EXPERIENCE OF UKRAINE
OLENA PAVLICHENKO1, YULIYA OSTAPENKO2, DMYTRO KRYVENKO3, HALYNA FOMINA4, OLHA LETS5
Abstract: The issue of protecting the rights of minors is undoubtedly relevant. There is a tendency in society when the employment of minors in the labor market is growing. The purpose of the article is to analyze the theory and practice of legal regulation of labor of minors under Ukrainian and international law and to find the optimal solution to the problematic issues that exist in this area. The article deals with the legal features of the work of minors at the national and international levels. Universal international legal acts enshrine the fundamentals of protection of the rights of minors from forced labor and oblige states to set a minimum age for employment and prohibit minors from holding certain positions. National legislation extends the norms on the work of minors in accordance with their labor market, clarifies and expands the rights of minors and the employment procedure. Despite the fact that the rights of child workers are clearly regulated, the state should eliminate certain shortcomings to ensure the rights and freedoms of this group of workers. The authors conclude that the term "light work" needs to be clarified, and a detailed classification of child workers depending on their age and state benefits is necessary. It is necessary to take educational measures to inform minors about their rights in the field of employment, and to develop a simplified mechanism for the protection of their rights. Scientific work can contribute to consolidate Ukraine's international relations with that of other countries in terms of developing bilateral relations to protect the rights of underage workers.
Keywords: human rights, labor rights, employment of minors, child’s rights, legal standards.
1. INTRODUCTION
Youth is a group of people who develop very dynamically and take all modern changes the best. Given the minors' desire to explore everything new, including knowledge and independence, they often strive for employment until adulthood. However, minors can fall into the trap of a dishonest employer since they are a rather vulnerable category without fully formed views and principles or enough experience in employment and ensuring their rights and freedoms. Such a layer of society as minors requires particular treatment since they do not have the opportunity to protect their rights and defend legitimate interests due to peculiarities of their intellectual, mental, and physiological development, lack of experience and knowledge, and lack of stable views and beliefs. With this in mind, the legislator should pay special attention to the legal regulation of the employment of minors in order to form a stable and deep regulatory framework that will protect their rights and regulate the employment procedure.
Recently, in most countries, child labor is considered a form of exploitation and has been made illegal. In the past, child labor was widespread, Nevertheless, after the emergence and recognition of the concepts of labor safety and children's rights, the scope of child labor gradually began to decline (Pustova &Akimov, 2021).
For example, child labor in factories and mines was common in many industrialized countries of Europe and America in the 19th century. Children worked on a par with adults up to 14-18 hours a day (sometimes from the age of 5-6), while they were paid several times less. The famous reformer Robert Owen was the first to draw attention to the problem of child labor in Britain. In 1816 he spoke on this issue in Parliament. According to the 1900 census, there were 1.7 million minors in the United States forced to work alongside adults. Already by that time child labor was prohibited in many states, but few paid attention to this violation. It was only in 1908 that the ban was extended to the whole country, but even after that it took years until the problem was really tackled.
The UN and the International Labor Organization consider child labor as exploitation. Article 32 of the Convention on the Rights of the Child guarantees the right “to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development”. Thus, leading international organizations recognize the exploitation of child labor as illegal, leaving no other option for debate (Convention on the Rights of the Child).
Despite this, forced child labor has not completely disappeared. For example, in 2021, a lawsuit was filed in the US court against the companies Nestle and Mars for the use of child labor eight children who claim to have been used as slaves on cocoa plantations in Côte d'Ivoire have launched a lawsuit against the world's largest chocolate companies. They accuse the corporations of facilitating the illegal enslavement of "thousands" of children on cocoa farms in their supply chains. The accusations against Nestle and Mars came from eight Malian citizens who were sold into slavery as children. They were forced to pick cocoa in Côte d'Ivoire. This is the first time a class action lawsuit against the cocoa industry has been filed in a US court. Citing studies by the U.S. State Department, the International Labor Organization and UNICEF, the court documents claim that the plaintiffs' experiences of child slavery are similar to those of thousands of other minors. In the lawsuit, all eight plaintiffs describe being recruited to Mali through deception. Many plaintiffs report that they were poorly fed and worked long hours (Balch, 2021). Thus, the lawsuit proves that minors are often unprotected in employment, and often simply become tools for exploitation.
However, most countries still realize the need to protect the rights of minors from exploitation. This issue is one of the most important in the modern world. The use of the labor of minors is one of the most important problems in modern society. Many countries of the world enshrine in their legislation the particular attitude of society towards such persons. Factors such as labor discrimination and forced labor are obstacles to quality education and the normal development of children (Tsipishchuk & Konopeltseva, 2020). Many minors carry out labor activities that cause irreversible physical and psychological damage. With this in mind, legal rules enshrine specific provisions on the employment of minors at both the international and national levels.
Today, legal science clearly distinguishes between the prohibition of forced labor and the age at which a person can enter into an employment relationship, provided that the law on the work of minors is observed and there is no coercion to such work. That is, international law, as well as the legislation of Ukraine, has established the age at which persons can be employed in order to protect minors from coercion. Therefore, in the future, when considering certain problems regarding the employment of minors, the author will consider the category of minors whose work is permitted by law.
Modern state policy is aimed at improving the legal regulation of those groups of the population that are generally insufficiently protected. They are provided for by many state projects, including the development of a barrier-free policy in accordance with the Resolution of the Cabinet of Ministers of Ukraine No. 537 “On Approval of the Procedure for Monitoring and Assessing the Barrier-Free Degree of Objects of Physical Environment and Services for Persons with Disabilities” (Resolution of the Cabinet of Ministers of Ukraine No. 537…, 2021). In the context of the domestic policy and the world trend toward increasing protection of human rights, there is a particular scientific and practical interest in the problem of social integration of the younger generation and their adaptation to the labor market and legal regulation of the employment procedure. Even though a legislative framework to provide guarantees for the implementation of the legal status of minors is significantly developed, there are violations of labor legislation in this area in practice (Solopov, 2020).
Since the issue of employment of minors is urgent in modern realities, it is no coincidence that the international community has established legal standards, legal foundations for involving minors in labor activities, and a system for supporting and protecting them in this process. Minor employees are still a weak link in labor relations, which leads to difficulties in independently protecting their rights and performing their labor duties on an equal footing with adult employees. Such actions will work for the benefit of the country's development and the world as a whole (Eriashvili et al., 2021).
It is essential to highlight the dilemma of legal regulation of the work of persons who have not reached the age of majority. The legislator in the field of labor should take into account the following factors: social adaptation, low level of legal awareness of adolescents, health, mental state, and sensitivity of a weak mental organization. Adolescents are prone to impulsive actions that do not always favorably affect them. In labor legislation, separate provisions are devoted to the employment of minors (Chiglintseva & Saifutdinova, 2021It is worth analyzing them to form a holistic view of legal rules and understand how law enforcement works.
2. METHODS
The principal research method used in the article is the formal legal method, which ensures the reliability of the results obtained and the achievement of the objectives set. The author used the formal legal method to analyze the structure and content of the rules of labor law governing the labor relations of minors and other workers, who are related to ensuring guarantees of the rights of minors. The authors used the same method to analyze the legal rules of Ukraine in studying and processing the dogma of law. The formal logical method also allowed the logical processing of the rules of law with the legal technology and identifying inaccuracies in the legal regulation of particular issues related to the research topic. The rules of international law were examined by the formal legal method. Here, the categories were considered as extremely broad concepts or extremely general, fundamental concepts. The first ones reflect the most general and essential properties, signs, connections, and relations of objects, phenomena of the objective world. The second ones reflect the most significant, natural connections and relations between reality and cognition.
The use of the system-structural method provided an opportunity to consider labor legislation as a single system of labor law rules, the content of which is determined by the need to comply with guarantees of the rights of minors. The authors resorted to this method to consider the classification of minors by age (14-15 years; 15-16 years; 16-18 years) and state benefits (minors who do not work; minors who combine work and study; minors do not study but work). Moreover, the system-structural method was applied to combine the existing problems in the legal regulation and ways to solve them.
In this article, a functional method allowed distinguishing separate groups of legal rules according to their functional focus. In the course of the study, the author applied methods of scientific cognition to study the features of labor of minors in accordance with the legal doctrine. The same method determined the separation of the constituent elements of the legal status of minors in the system of regulation of labor relations. The authors distinguished such elements as legal personality, rights and obligations, legal responsibility, and guarantees of the rights of minors. The method of scientific cognition showed the need to clarify ways to improve the situation with the employment of minors, and the conclusions of the article reflected this need.
The authors used the historical and logical method to consider the ILO formation in retrospect, the inclusion of the protection of minor labor in its tasks, and the formation of an appropriate convention mechanism to ensure their rights. In particular, the above concerns the following: the prohibition to work on certain types of work, regulation of working hours, mandatory medical examination, the establishment of minimum employment age, etc.
The comparative method provides the possibility to determine similarities and differences in certain concepts used in the article. The author of the article used this method to distinguish the differences between the employment of adults and minors and working conditions, based on theoretical approaches of scientists and legal differences. The comparative method also provided an opportunity to highlight shortcomings in the legal regulation of the rights of such citizens at the legislative level.
The method of analysis and synthesis allowed studying theoretical information, international legal acts, and national legislation of Ukraine and identifying the problems existing in the field under the study and ways to solve them on their basis. This method provided a general study of the international legal framework for the protection of human rights in the context of the protection of children's labor rights.
3. RESULTS
3.1. General theoretical approaches to understanding the legal status of a minor worker
The consolidation of a special treatment of society towards the younger generation at the legislative level is a feature existing in the legislation of most countries. Among other rights of citizens of minority age, the right to work and safe working conditions are established by legal acts of international and national legislation. Young people are endowed with a special legal status under their age and other characteristic features, including the specifics of social formation and development and a special place in the structure of society. In addition, if such specifics are present, we can state that minors as subjects of labor relations are endowed with a specific status (Inshyn, 2009). The regulation of labor relations with minors requires the labor legislation to have regard to the level of their intellectual and voluntary development, the features of the physical development of persons who have not reached adulthood, and the task of protecting their mental health.
In general, scientists consider the employment of minors as a system of specific organizational, legal, and economic measures aimed at ensuring the employment of juveniles as a particular category of workers (Irioglu, 2018). Buyanova (2005) notes the legal status of minor workers consists of legal personality, labor rights and obligations, legal responsibility, and guarantees of rights. Indeed, distinguishing these categories is important when considering a legal status of minor employees because in-depth understanding of the constituent elements of the legal status is necessary for its further protection in labor relations. Distinguishing of these very elements have a logical foundation. The first one, sibgled out by the scholar, is a legal personality. Any legitimate legal phenomenon does not exist without this element since it provides legal subjects with a possibility to take part in legal realations. Thus, legal relations are not possible without the legal personality. The second constituent element is labor rights and duties, which seem to be quite relevant, because they are part of labor relations and, thus, are indispensable within labor relations with minors. Legal responsibility is the third compulsory element of legal relations parties who must bear legal responsibility for their actions if labor law is violated. After all, law guarantees are aimed to protect the rights of labor relations parties, in particular, a minor worker (in cases considered in this article). Taking into account the above-mentioned, we agree with Buyanova’s opinion and believe these constituent elements of the legal status of minor to be the most relevant.
There are the following features of the legal status of minors in the field of labor relations: the age is a primary criterion for determining the labor legal personality of minors; the rights and obligations of minors are statutory and can be supplemented with respect to particular elements of labor relations; the scope of financial liability is limited for minor workers; minor workers belong to the category of persons who have the greatest number of guarantees of labor rights (Solopov, 2020). In the system of regulation of labor relations, the legal status of minors also consists of legal personality, rights and obligations, legal responsibility, and guarantees of the rights of minors. However, it appears as a more complex concept, which fully includes the legal status of minors. In terms of ensuring guarantees of the rights of minors, it also determines the labor status of persons with family responsibilities and persons who interact with minors in the course of work.
The position of minor workers is that a partial restriction on the use of general rules governing labor relations sets particular limits on financial liability. There are even guarantees of an additional nature of compliance with the labor rights of workers who have not reached the age of eighteen (Ang, 2009). It is worth noting that guarantees are the means by which the application of human rights and freedoms is implemented. The state policy should be aimed at reducing and preventing threats in the social sphere, guaranteeing the social protection of an individual, and improving the standard and quality of life of the population (Saifutdinova, 2020). Formation of the state policy on protecting minor workers in this very case will not only ensure a higher level of protections of such workers’ rights but also will increase the coefficient of the involvement of minor workers in labor relations. This will also have a positive impact on the development of the youth (work experience and seniority; getting acquianted with legal foundations of tax payments; concluding employment agreements; skills acquisition and a conscious choice of a future profession) and the state (taxes payments; new youth-oriented ideas aimed at the development of the country).
It is worth noting that the feature of labor legal personality is a volitional criterion associated with the actual ability of a person to work (Geikhman & Dmitrieva, 2011). The application of such criterion also seem relevant because the subjects of labor relations do not emerge from the appearance of a real capacity to carry out labor activities but from the appearance of a labor personality. Consequently, both the legal and labor status of a minor worker have specific features. Lawyers rightly believe the subjects of labor relations arise rather from the emergence of labor legal personality than a real ability to carry out labor activity. Thus, the legal and employment status of a minor worker is characterized by its inherent features.
3.2. International legal rules for the protection of the rights of minors in employment
International regulation of these legal relations began to develop actively at the beginning of the twentieth century. At present, we have a holistic and regulated system of international legislation, which regulates the legal status of minor workers and guarantees the implementation and exercise of all benefits, advantages, and features during their employment.
First of all, there are a number of international legal instruments in international law that govern the right to work and protection from forced labor. Let's consider some of them. For example, the provisions of Art. 23 of the Universal Declaration of Human Rights (hereinafter – the UDHR) states that every person has the right to work, free choice of place of work, and just and favorable conditions of work. Art. 4, at the same time, regulates the prohibition of forced and bonded labor, and Art. 1 emphasizes the equality of all human beings (Universal Declaration of Human Rights, 1948).
It is also worth drawing attention to the International Covenant on Economic, Social and Cultural Rights (hereinafter – ICESCR) of 1966. Art. 6 recognizes the human right to work and the duty of states to ensure such an opportunity for their citizens. The provisions of Art. 7 provide for the need to create just and favorable working conditions for all workers (International Covenant on Economic, Social and Cultural Rights, 1966). In addition, there are many other international legal instruments adopted, including conventions of the International Labour Organization (hereinafter – ILO) and regional international treaties regulating the right to work, decent working conditions, equality and non-discrimination, and the prohibition of forced labor, etc.
However, the labor of minors is also regulated separately at the international legal level. The UN Convention on the Rights of the Child of 1989 is the main international document in the field of regulation and protection of the rights, freedoms, and legitimate interests of minors. It enshrines the foundations of the legal status of children, which covers all possible spheres of their life. A minor can be the subject of many legal relations, including labor relations. It is worth considering Art. 32 of the Convention, which imposes on states the obligation to recognize the right of the child to be protected from economic exploitation and performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health and development.
In addition, states should provide the following conditions for the protection of the rights of minor workers at the legislative level: a minimum age for admission to employment; an appropriate regulation of the hours and conditions of employment; providing for appropriate penalties or other sanctions to ensure the effective enforcement of this article (Convention on the Rights of the Child, 1989). In general, the Convention on the Rights of the Child plays a crucial role in defining and regulating the rights of minors, which should be followed and implemented by the UN Member States that have ratified it. To this date, 196 states have ratified the Convention, and only the United States has signed but not ratified it. Such a number of accessions indicates the high importance of the rules provided by the Convention on the Rights of the Child for the protection of the rights of children, a vulnerable category, around the world (Convention on the Rights of the Child, 1989).
In addition, many other international legal instruments regulate the protection of the rights of minor workers. The International Labor Organization (hereinafter – ILO) is worth special attention. The organization was established in 1919 and has officially become a specialized agency of the United Nations since 1946. The protection of the child was one of the main goals of the ILO even far back in 1919. The protection of minors was already mentioned in the ILO Constitution, which was part of the Treaty of Versailles after the First World War. The peace treaties relied on two pillars, namely a system of collective security governed by the League of Nations and the creation of social justice under the auspices of the ILO. The protection of children who were exploited at factories and suffered from the war was a crucial component in building social peace (Dahlén, 2008).
The ILO, as an international organization, encompasses a wide range of people since its participants can be representatives of workers and entrepreneurs of different countries, in addition to representatives of states (Morozov, 2011). All participants have equal rights and opportunities to join the ILO, regardless of their social and financial situation in society, and this is its key feature. Therefore, this international organization takes the complete, balanced, and comprehensive decisions at most since it considers the interests of all its participants. The ILO has adopted a large number of important conventions, the provisions of which are aimed at protecting the right to labor and labor rights.
The above also includes several conventions on the protection of the rights of minor workers. First of all, the authors note the ILO Convention No. 138 on the Minimum Age for Admission to Employment as of 1973. Its provisions are essential in the context of the protection of children from forced labor. It imposes on the ratifying states the obligation to implement a state policy aimed at ensuring the effective abolition of child labor and gradually raising the minimum age for admission to employment. In addition, each state which ratifies the said Convention should specify the minimum age for admission to employment in its application; no person under that age may be allowed to work. The Convention also stipulates that the minimum age for admission to employment or work which by its nature or circumstances may endanger the health, safety, or morals of young persons shall not be less than 18 years (Convention No. 138…, 1973).
Thus, the said convention protects the rights of minors from forced labor, thereby providing them with the opportunity for normal growth, education, and development. Among them, there are the following: ILO Convention No. 90 on the Night Work of Young Persons in Industry as of 1948 (Convention No. 90…, 1948); ILO Convention No. 77 on Medical Examination for Fitness for Employment in Industry of Children and Young Persons as of 1948 (Convention No. 77…, 1948); ILO Convention No. 112 on the Minimum Age for Admission to Employment as Fishermen as of 1959 (Convention No. 112…, 1959); ILO Convention No. 123 on Minimum Age for Admission to Employment Underground in Mines as of 1965 (the said Convention establishes 16 years as the minimum age for this type of work) (Convention No. 123…, 1965), and others. The conventions listed above are essential for the formation of national legislation of world countries since they form the basis for the domestic system of lawmaking and national regulatory legal acts. The above conventions define the minimum age an employer has the right to employ a minor worker in different production areas.
The authors of this article also mention two legal acts of the regional level adopted within the EU – the European Social Charter (revised) as of 1996 and the Community Charter of the Fundamental Social Rights of Workers as of 1989. Regarding the first document, Art. 7 of this Charter establishes that the minimum age for admission to employment with hazardous and harmful working conditions is 18 years. In addition, the document places a duty to provide special protection to adolescents against physical and moral hazards. The Charter also provides for the need the workers under 18 years of age to be subject to regular medical control (Telichko, 2016). The Charter also establishes that the minimum age for admission to light work can be 15 years (European Social Charter (Revised), 1996).
The second mentioned legal act also contains provisions aimed at protecting minor workers. In particular, paragraph 22 emphasizes that states should take measures to improve the legislation of the state regulating the work of minors and enshrine the prohibition of night work for persons under the age of 18 (Community Charter of the Fundamental Social Rights of Workers, 1989). Thus, the consolidation of norms for the protection of the labor rights of minors at both the universal and regional levels indicates the issue under the study is of exceptionally high relevance at the international level. The national legislation of states should properly regulate this issue for the protection of minors on their territory in accordance with the requirements and standards established by international law.
3.3. Ukraine’s legislation on protection of the rights of minor workers
Ukrainian legislation also provides for the protection of minors in employment. The following legal acts include the relevant norms: the Labor Code of Ukraine (hereinafter – the Labor Code) of 1971, the Law of Ukraine On Labor Protection of 1992, the Law of Ukraine On Childhood Protection of 2001, the Law of Ukraine On Employment of 2012, and numerous by-laws. Let us consider in more detail the provisions of the mentioned legal acts. Chapter XIII, entitled “Work of Youth,” of the Labor Code regulates labor relations with the involvement of minors. According to Article 187 of the Labor Code, adults and minors generally have equal rights in labor relations, but the latter are provided with benefits in particular issues, including working hours, labor protection, and others. Legislation, in particular Article 190 of the Labor Code of Ukraine, prohibits the employment of minors in heavy work and work in harmful or hazardous working conditions, as well as in underground work (Labor Code of Ukraine, 1971).
The list of these types of work is approved by the Order of the Ministry of Health of Ukraine dated 1994 No. 46 (1994). This normative act contains 37 types of work and specific names of professions that cannot be exercised by minors, which include a significant number of subtypes of work and professions. In particular, this List prohibits the participation of minors in mining, construction of subways, tunnels and underground facilities for special purposes, production and transmission of electricity and heat, oil and gas production, production of medicines, etc. (Order of the Ministry of Health of Ukraine No. 46, 1994).
The reason for the provision of such benefits is the features of young organisms and the lack of the necessary training in them (Kisel, 2019). The provision of Art. 188 of the Labor Code enshrines the general rule on the minimum age for admission to the employment of 16 years of age. However, the working age may be reduced to 15 years of age with the consent of one of the parents. According to the Labor Code, persons aged 14 to 15 years may have the possibility of employment, provided that they perform “light work” that does not interfere with education and does not harm health exclusively during free time (Labor Code of Ukraine, 1971). At the same time, there is no definition of “light work” provided. In order to encourage minors to work, it is allowed to employ school and college students subject to reaching the age of 14, parental consent, work outside school hours, and light work (Medinskaya, 2016). In our opinion, the enshrinement of the definition of light work in the Labor Code of Ukraine will contribute to strengthening the guarantees of protection of labor rights of minors. The signs of such work will include the presence of simple and clearly defined tasks, the ability to perform such work without significant physical effort, limited working hours, regular breaks, etc.
In addition, the legislation regulates the length of the working day for minors. In particular, the working hours for minors from 16 to 18 years old are 36 hours per week, and 24 hours per week are for persons from 15 to 16 years old and students from 14 to 15 years old working during holidays. The Labor Code also provides for the obligation of a minor to undergo a medical examination before being employed. In addition, Article 190 of the Labor Code prohibits the use of work of minors in heavy work, work with harmful or dangerous working conditions, and underground work (Labor Code of Ukraine, 1971).
It is worth noting that the Law of Ukraine On Labor Protection of 1992 contains quite similar provisions to the Labor Code in the matter of prohibiting the employment of minors in heavy work. Under Art. 11, it is prohibited to involve minors in heavy work and work with harmful or dangerous working conditions, underground work, night work, overtime work, and work on weekends. The same article prohibits the lifting and moving of things by minors, the weight of which exceeds the limit norms established for them under the list of heavy work and work with harmful and dangerous working conditions, the limit norms for lifting and moving heavy things, approved by the central executive body in the field of health care (Law of Ukraine No. 2694-XII…, 1992).
According to the Law of Ukraine On Childhood Protection of 2001, the tasks of the state include, among others, the creation of safe and healthy working conditions. Art. 21 of the said Law is important in the context of the topic under the study. It establishes the minimum age of children for admission to employment is 16 years, but they can be employed from the age of 15 if such work does not harm their health and education, and there is the consent of one of the parents. The Law also provides for the limitation of working hours of minor workers and the prohibition to take part in heavy work. Children are employed only after a preliminary medical examination in the presence of a written medical conclusion that there are no contraindications. The authors can state the Law of Ukraine On Childhood Protection, in general, repeats the provisions of the Labor Code, expanding and specifying them. Among the provisions that require special attention, the Law enshrines a list of the worst forms of child labor. It is worth noting the Law also establishes the right to engage in entrepreneurial activity for persons who have reached the age of 16 and the possibility of minors to form and join trade unions (Law of Ukraine No 2402-III…, 2001).
Therefore, the domestic legislation contains properly formulated legal rules aimed simultaneously at attracting minors to work and protecting their labor rights and freedoms in connection with their special legal status. The aim of the current legal rules of the Ukrainian legislation is the protection of children. In addition, they contain the requirements of international legal acts adopted in the relevant field.
3.4. Employment of minors: problems and ways of solving them
Despite the efforts of the legislator to protect minors in employment as much as possible, some problems need solving in order to ensure an adequate level of protection of labor rights of minors. First of all, it is worth paying attention to the previously mentioned absence of the definition of light work in the Labor Code, which can cause contradictions and incorrect application of the legal rule due to its subjective interpretation. Therefore, some scholars highlight the existing gap in the legislation. The Ukrainian researcher Telichko express one of the most interesting opinions. She emphasizes there must be a clear definition of light work enshrined in addition to the regulation of the permit for such work for minors aged 14-15 years (Telichko, 2016).
However, despite the fact that the scholar paid attention to such a significant legal gap, she does not provide her own recommendations to solve this problem. We believe it would be possible to formulate the definition of this phenomenon under consideration in order to eschew possible legal discrepancies. At the same time, the researcher Kisel holds if an appropriate definition is enshrined in the Labor Code, it will strengthen guarantees of protection of the labor rights of minors (Kisel, 2019). The authors of this article believe it is necessary not only to provide a legal interpretation of light work but also to distinguish the following features inherent in it: strictly formulated and simple tasks; no need to make physical efforts; the ability to take regular breaks; a limited duration of the execution time (working day).
The researcher Reus defines two criteria in the occurrence of work capacity, age-dependent and volitional, and the authors of this article consider them appropriate. By the first criterion, Reus means the attainment of a minor person of the maximum age allowed by law. By the second criterion, the researcher understands the ability (mental and physical) and desire to enter into labor relations. Having conducted the analysis, Reus proposes to bring more clarity to the classification of minor workers. The researcher suggests dividing them into two categories by age and state benefits. The division of minor workers by age is as follows: under 14 years of age (or minors who cannot work under the law); 14-15 years of age; 15-16 years of age; 16-18 years of age (Reus, 2003).
The authors of this article consider this division important since the legislator has restrictions on the work of minors depending on their age, and the separation of particular categories will simplify approaches to the legal regulation of their employment. Having analyzed the academic approach of Reus, it is impossible to disagree that her remarks on distinguishing the criteria is completely justifiable and important because the legislator contains the restrictions as regards to working of minors depending on their age, while distinguishing certain categories will allow to facilitate the approaches to legal regulations of their employment. Returning to the classification of minors by state benefits, Reus distinguishes between minors who do not work, minors who combine work and study, and minors who work and do not study (Reus, 2003).
Since minors are not sufficiently aware of their labor rights, another problem arises, which concerns unscrupulous employers, who can restrict the rights of minor workers, violate their interests, or manipulate them for their purposes. In order to ensure that the younger generation does not have problems with the exercise of their legal labor rights, it is advisable to conduct educational programs and awareness-raising activities at the state level to inform working children of their rights and obligations and mechanisms for protecting violated labor rights. Hence, there is also a need to create an accessible and understandable institutional mechanism at the state level which allows minors to protect their labor rights. Minors often do not know where to turn in case of violation of their rights due to their age and lack of knowledge.
Following this purpose, it is appropriate to create an institutional mechanism for minors with a simplified application procedure to ensure the protection of their rights from unscrupulous employers or forced labor. In addition, such a simplified mechanism should be available in the form of an online application. The reason is the digitalization of all spheres of human life and the simplification of access to public services and information. Moreover, since minors have exceptional skills in using technology, it will be convenient for them to exercise their right to appeal or protect violated labor or natural rights using the Internet platform or online form of appeal.
4. DISCUSSION
Eriashvili, Sarbaev, and Kukharev (2021) drew important conclusions on the system of international legal regulation of the rights of minors. In their work, they note the issue of legal regulation of the employment of minors is significant in the system of labor relations today. Moreover, any state should define the improvement of labor legislation in part regulating the work of minors as their foremost task. Minors are the younger generation on which the future of all civilization depends. Accordingly, it is necessary to competently and correctly use the work of this category of the population to obtain maximum potential and opportunities with a minimum probability of negative consequences for the health of minors. Therefore, the researchers comprehensively studied the rules of international law on the protection of the rights of minors and analyzed them in the context of national legal acts and current challenges in the relevant field. They emphasize activities of minors are very widely regulated by regulatory legal acts and ensured by many regulations, laws, and conventions (Eriashvili et al., 2021).
Moreover, Karpenko, Ivanova, and Kalyuzhna (2020), a group of scientists, drew important conclusions in the context of the legal regulation of the labor of minors. They studied the Ukrainian legislation on the protection of the rights of minors and compared it with international norms devoted to similar problems. In addition, the scientists highlighted some problematic issues that exist in the studied field and proposed comprehensive approaches to their solutions. Having studied the Ukrainian legislation, they substantiated that working minors are a special category of the population provided with additional labor benefits and guarantees in case of labor activity. These guarantees take into account the age and health of minors and working conditions at the enterprise. In addition, the scientists focus their attention on the need to improve domestic law regarding the employment of minor workers (Karpenko et al., 2020).
Following this idea, the work by Irioglu seems interesting in the context of the topic under the study. The scientist examined the features of the employment of minors by comparing the labor status of minor workers and adult workers. In addition, the author focused on the following issues related to the main conditions of employment of a minor: the emergence of labor legal personality, the registration of labor relations, working hours, remuneration, and the procedure for dismissing a minor (Irioglu, 2018).
It is also worth considering Ang’s study in the context of the analysis of the protection of minors' rights in employment. The researcher notes the need for a fundamentally new approach to the legal regulation of the labor of minors. Thus, Ang emphasizes the issue of the labor rights of adolescents deserves the legislation pays more attention to it since good intentions of the law frequently contradict the legitimate interests of adolescents (Ang, 2009).
In addition, Kisel carried out an in-depth study and analysis of domestic legislation in the field of protection of the rights of minors in employment. The researcher described domestic legal instruments aimed at occupational safety, ensuring just working conditions, and protecting the rights and freedoms of minor workers. It is worth mentioning that Kisel devoted special attention to the regulation of working hours, working conditions, and the health of employees. Based on the conducted analysis of Ukrainian law on the topic under the study, Kisel highlighted the shortcomings of legal regulation and the problems in the employment of minors and suggested ways to eliminate and improve them. The researcher identifies the steps that should be taken to protect the rights of minor workers during employment (Kisel, 2019).
The following Ukrainian and foreign researchers studied particular aspects of the legal regulation of the labor of minors: Buyanova (2005), Geikhman and Dmitrieva (2011), Inshyn (2009), Kisel (2019), Medinskaya (2016), Morozov (2011), Reus (2003), Saifutdinova (2020), Solopov (2020), Telichko (2016), Tsipishchuk and Konopeltseva (2020). Even though scientific research on the issue under the study is available, and there is a legal basis for the protection of the rights of minors during employment, the issue still does not have a full regulation in the legal aspect. In addition, minors often face violations of their rights during employment and do not have enough knowledge and experience for adequate protection of their rights. Thus, the study of the features of the employment of minors requires a more detailed analysis at the research level in order to find the most beneficial ways of improvement.
5. CONCLUSION
The authors of this article can state that labor relations with minors are specific and require more attention and legal protection on the part of the state. The improvement of labor legislation on the regulation of the labor of minors leads to the annual increase in the number of minors who want to get a job, and this, in turn, positively influences the general development of the country. The younger generation is the future of any state and the world, so the active development and improvement of legislation in the field of employment support and regulation of labor relations creates a solid foundation for the development and prosperity of the entire world community. The entitlement of labor rights to minors should have certain legal guarantees - those benefits and legislative prohibitions that would protect this category of workers from many problems, including pressure from the employer, reducing personal time, and exploitation in heavy work. Such a prohibition happens to be since work should not harm the health and moral development of the individual.
The state carries out the representation and protection of the rights of employees who have not reached the age of majority, which acts as a guarantee of protection of the labor and legal status of minors and plays a vital role in the development of the institution of labor law in general. The work of a child under the age of majority does not have any strict objections from society unless it relies on legal prohibitions and is not close to labor exploitation. Moreover, the will of the child is not enough; the emergence of labor relations engages the legal representatives of the child, the guardianship authority, the state labor inspectorate, and the commission for minors. The state encourages early involvement in work, seeking to improve labor and family laws to ensure better working conditions. The Institute of Minors' Labor, which receives increasing importance in the conditions of the developing economic system, will subsequently eliminate legal and practical contradictions, obtaining the most effective development.
First, we believe that it is advisable to consolidate the definition of "light work", its characteristic features, such as safety, short working hours, as well as an exhaustive list of these works for underage workers. For this purpose, we consider it appropriate to adopt a special regulatory act. Secondly, it is relevant to recognize as invalid the Regulation on the procedure of labor and vocational training of minors in professions related to work in harmful and difficult working conditions, as well as high-risk work of 30.12.1994 No. 130. Instead, we propose to establish a ban on internships at enterprises with harmful working conditions. Thirdly, there is now a need to oblige the employer to conduct free extraordinary medical examinations for underage workers and to ensure special medical supervision of the health of young workers after they stop working before reaching the age of eighteen, which will fully comply with the requirements of the Directive of the Council of the European Union, 1991 № 91/383 EEC (1991). In national legislation, in particular within the legal doctrine and the draft Labor Code of Ukraine, it is necessary to pay attention to the concept of labor protection of developed Western countries; to strengthen the influence of social partners on improving the situation in the field of labor protection of underage workers.
Among the practical steps aimed at improving the existing legislation on the protection of minors in employment, it is necessary to adopt the following: to provide an interpretation and determine the features of the concept of light work at the legislative level; to classify minors in more detail depending on age and state benefits; to conduct educational measures to inform minors of their rights, including in the field of employment; to develop a simplified mechanism for the protection of minors of their violated rights. The mentioned list of practical measures is vital in order to strengthen the legal basis of minors’ employment, protect their rights and prevent possible violations of their rights as a result of legal gaps. Apart from that, effective mechanisms for protecting the rights of minor workers will lay foundations for the growth of the young generation’s interest in participating in labor relations in different economic sectors. As a result, this will lead to the impovements for both the state (in the form of taxes, future specialists’ training, and the development of innovations under the influence of the youth) and futher development of minors as personalities and citizens. Finally, the success of any development consists in the effective legal system, which embraces a wide range of relations and regulates completely and thoroughly all aspects of the cooperation between the state and the society.
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Received: 4th May 2022
Accepted: 16th January 2023
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1 Department of Life Safety and Law. Petro Vasylenko Kharkiv National Technical University of Agriculture, 61002, 44 Alchevskikh Str., Kharkiv, Ukraine. Corresponding author: olena.pavlichenko@pltch-sci.com
2 Department of Jurisprudence. Volodymyr Dahl East Ukrainian National University, 93400, 59-а Tsentralnyi Ave., Severodonetsk, Ukraine.yuliya.ostapenko@sci-univ.com
3 Taras Shevchenko National University of Kyiv, 01033, 60 Volodymyrska Str., Kyiv, Ukraine. dmytro.kryvenko@edu-knu.com
4 Taras Shevchenko National University of Kyiv, 01033, 60 Volodymyrska Str., Kyiv, Ukraine. halyna.fomina@edu-knu.com
5 Scientific Institute of Public Law, 03035, 2A Georgy Kirpa Str., Kyiv, Ukraine. olha.lets@edu.cn.ua