Accogliere la religione e il credo nel diritto del lavoro russo
Fatima Nogaylieva, Lecturer at the Department of Labour Law at the St. Petersburg State University (SPbSU)
L’articolo affronta il problema della protezione dei diritti religiosi dei lavoratori nell’ordinamento russo, che è diventato sempre più difficile a causa della crescente devozione e impegno religiosi (principalmente ortodossi e musulmani) e degli afflussi di migranti dai paesi musulmani dell’Asia centrale. Lo stato attuale della legislazione e della coscienza sociale in materia di religione e credo è fortemente influenzato dall’esperienza del passato sovietico, che aveva infranto la tradizione del rispetto dei bisogni religiosi dei dipendenti. Al fine di trovare modi per risolvere il problema, l’articolo considera l’adattabilità dei mezzi normativi esistenti e delinea i nuovi modi per garantire e proteggere la libertà di religione nei luoghi di lavoro.
The article describes the problem of protecting the employees’ religious rights in Russian law, which has become increasingly challenging due to the growing religious devoutness and commitment of Russian citizens (mainly, Orthodox and Muslims) and the migrants’ inflows from Muslim countries of Central Asia. The current state of legislation and social consciousness concerning religion and belief is strongly influenced by the experience of the Soviet past, which had broken the tradition of respecting the religious needs of employees. In order to find ways of solving the problem, the article considers the adaptability of existing legal regulation means and outlines the new ways to ensure and to protect freedom of religion in the workplace.
Keywords: religious employees – employees’ religious rights – reasonable accommodation – indirect discrimination – prayer – religious organizations – clergy.
1. Introduction - 2. The Background of the Current State of Legislation - 3. Religious Organization as an Employer - 4. Relations with Secular Employers According to the LC and Judicial Practice - 5. Accessible Means of Ensuring Employees’ Religious Rights - 6. Conclusion - NOTE
People today are more likely to seek self-identification through manifestation of religious convictions. Since the 1990s employees have increasingly expected employers to accommodate their religious beliefs.  In Russia over the last two decades there has been the gradual but definite growth of religious commitment: the number of those who admit that their religious faith supports them in certain situations has grown by more than twofold (from 23% to 55%); the number of Orthodox Christian believers increased from 33% to 79%, and Islam from 3% to 7%.  This fact consistently effects on creating the infrastructure for social religious needs (for example, the construction of new cathedrals and churches, restoration and transfer of old ones to the Russian Orthodox Church, opening of prayer rooms, development of halal and kosher food industry, etc.) There is also a number of legislative accommodations for religious needs and convictions of the individuals. Russian legislation stipulates certain conditions, allowing, for example, to withdraw autopsy of a deceased relative or to choose alternative civil service in lieu of national military service; or even to withdraw obtaining a national passport or other documents, merely invoking grounds of religious convictions and beliefs. For this reason it’s striking that labour and employment legislation does not provide such accommodations or any express rulings on how the parties should proceed to fit religious needs [continua ..]
2. The Background of the Current State of Legislation
At first sight, it seems obvious that any person, regardless of whether he/she is employed or not, has the right to religious commitment as the part of freedom of religion and belief (of course, provided that commitment does not create a public danger); in the light of this, the main task to be solved is to ensure a balance of rights and interests of the employee, the employer and other employees of this employer. But in Russia parties to the employment contract face various complexities due to a number of reasons, primarily of legal and psychological nature. Both of these reasons can be explained on the pretext of the general framework on the freedom of religion and belief. Before the October revolution of 1917, the late state policy of the Russian Empire implied religious tolerance rather than the freedom of religion and belief. Religious propaganda was prohibited for all religions except the Orthodox Christianity; in addition, Orthodoxy had been officially declared as the state religion. Nevertheless, irrespective of faith, employees were allowed to have time-off for commitment of prayers and religious holidays or the pilgrimage; requirements on the employee’s appearance and wearing religious garb and symbols were minimal and were conditioned by the strict occupational and safety reasons. Religious practice and commitment had been essential fixture of social life; any kinds of religious worship had been treated by the employers (or leaseholders) the same way with [continua ..]
3. Religious Organization as an Employer
Labor Code of Russian Federation contains separate references to faith and religion. The most detailed and remarkable of them is in chapter 54 «Special procedures for employees of religious organizations». Parties in this relations are an employer (religious organization registered in the procedure set be the federal law) and an employee (a person over 18 years old), who concluded the written contract. The labor contract may be concluded for a determined period of time and includes essential terms and conditions for the employee and the religious organization as an employer in accordance with the LC and internal regulation of the organization. The internal regulations of the religious organization are not to contradict the Constitution of Russian Federation, the LC and other federal laws. When concluding the labor contract the employee takes responsibility to perform any work specified in the contract and not forbidden by the law. Work schedule of religious organization employees is determined taking into consideration the standard working hours specified by the LC and the schedule of religious rituals and other activity of the religious organization set by its internal regulations. In addition to the general reasons foreseen in the LC a labor contract with a religious organization employee may be terminated upon the reasons specified in the labor contract. The terms of notification about labor contract cancellation upon the reasons specified in the labor [continua ..]
4. Relations with Secular Employers According to the LC and Judicial Practice
The fundamental principle of Russian labor law is the unity and differentiation of legal regulation. Unity means general principles, common for all employees and employers, basic labor rights and duties; unity is established by the general rules of the LC, covering the entire territory of the Russian Federation and all employees and employers. Differentiation, on the other hand, indicates a need in different approaches to the legal regulation of labor, with allowances made for the following factors: 1) harmful and hazardous working conditions; 2) climatic conditions (the Far North region and associated areas); 3) personal characteristics of an employee (physiological characteristics of the female, the social role of a parenthood, the physiological characteristics of the adolescents, the need to continue education during employment, the limited working capacity of disabled); 4) the specifics of labor relations (seasonal or temporary employment); 5) features of labor in the industrial sector (sectoral differentiation). The rules of differentiated regulation are aimed to mitigate the effect of these factors and to enable certain categories of employees to enjoy their labor rights on an equal basis with others. Special procedures for these cases are provided in the rules, partially restricting the application of general rules or provide additional rules. The ultimate goal of these legal rules is promoting of substantive equality of employees rights. The LC doesn’t provide [continua ..]
5. Accessible Means of Ensuring Employees’ Religious Rights
According to article 9 of the LC, labour relations can be regulated by employees and employers concluding, amending, appending collective contracts, agreements, labour contracts. Seeking to avoid the negative consequences of the indirect discrimination, the religious employee may apply to set a contractually-agreed: 1) individual possibility for working conditions and accommodations (in the labour contract); 2) general possibility of such accommodations for the group of concerned employees (in collective agreements or in local acts of an employer). The concerned employee may have a need to apply for changing such conditions, as employment functions, working hours and rest time, breaks for prayer, appearance and dress code, diet requirements at workplace canteens, providing prayer rooms, exemption from participation in collective prayers and religious celebrations, etc. Accommodating each of these conditions will have its own features and clauses deriving from the special procedures of working conditions, thus, mandatory rules of the LC and labour legislation should not be changed under any circumstances. For example, if the employee finds a contradiction between his employment functions and religious convictions, the only way for the employee to protect his religious interests is to refuse to conclude an employment contract or dismiss at his own will (depending on the stage at which the negotiations are held). Should this happen, performing of these actions by the employee [continua ..]
For different reasons in Russia the problem of religion at workplace has not yet received scientific comprehension and legislative solution. The growing number of scientific papers and materials of law-enforcement practice in foreign legal systems have not been studied in Russia until now. The main reason to point out is long period of exclusion of religion from the number of public institutions to be studied and practiced. Rapidly changing social reality predetermined the need to explore the initial provisions and capabilities of labor legislation in matters of ensuring the employee’s freedom of religion and to find ways to improve it. On the one hand, labor legislation provides for the protection of the employee from indirect discrimination. However, the procedural difficulties of proof make the demand of the employee to this remedy futile. On the other hand, the remedy specifically designed to level the position of employees with special needs (differentiation of legal regulation in the LC) does not extend to the criterion of religion and belief. Human labour is the reflection both of the physical and spiritual capacities, skills and inclinations of employees, implemented in the economic sphere of an employer. There is a strong case to assert, that religion and beliefs of religious employees should take their place among the grounds for differentiation of legal regulation. Introduction of employers’ obligation to negotiate with employees in the LC could [continua ..]