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PUBLISHED DATE: - 14-08-2024
DOI: -
https://doi.org/10.37547/tajpslc/Volume06Issue08-03
CONCLUSION OF A FIXED-TERM
EMPLOYMENT CONTRACT: RIGHT OR
OBLIGATION?
Bonu Rakhimberganova
Tashkent State University of Law, Uzbekistan
INTRODUCTION
Modernization processes are associated with the
active participation of the labor force in any area.
And in a state where the labor market is not
regulated, economic growth will not be adequate.
The exact regulatory function of the state is also
seen in its inner policy in ensuring that its laws are
superior and applied uniformly to it in any sector.
Therefore, it is important that the labor market is
also regulated by law. The basis of this is the fact
that the employer enters into a formal relationship
with the employee, in short, enters into an
employment contract. The employment contract is
not only the central institute of labor law, but also
the main legal fact that leads to the emergence of
labor relations. For an employee, the type of
employment contract concluded with him is also
important. As a general rule, an employment
contract is concluded for an indefinite period, while
a fixed-term employment contract can be
concluded only in cases provided for by law.
According to some scientists, the use of fixed-term
contracts can create a segmented labor market,
with insiders enjoying more stability and benefits
compared to outsiders who are often stuck in
temporary positions without the prospect of
transitioning to permanent roles [1].
Labor Relations in the Republic of Uzbekistan are
currently regulated by the Labor Code [2] adopted
on October 28, 2022. This legislation is quite
different from the Labor Code adopted in 1995 [3].
In particular, the norms governing the term
employment contract are also radically different
from each other. With the renewal of the
legislation, its main purpose has not changed. The
RESEARCH ARTICLE
Open Access
Abstract
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main purpose of both legislation is to ensure the
balance of the interests of employees, employers
and the state, as well as to coordinate them.
Therefore, with the adoption of the new Labor
Code, the right of employers to conclude a fixed-
term employment contract expanded.
METHODS
1. Legal Analysis:
Textual Analysis: Conduct a detailed analysis of the
relevant articles in the Labor Code of Uzbekistan,
focusing on the provisions related to fixed-term
employment contracts. Compare these provisions
with the previous Labor Code and international
standards.
Comparative Analysis: Compare the Uzbek Labor
Code's regulations on fixed-term employment
contracts with those of other countries,
particularly those adhering to International Labour
Organization (ILO) conventions.
2. Literature Review:
Academic Sources: Review academic articles,
books, and legal commentaries discussing labor
law, employment contracts, and labor market
regulation. This will provide insights into the
theoretical and practical implications of fixed-term
employment contracts.
Legal Journals: Analyze legal journals and
publications to understand current debates and
interpretations surrounding fixed-term contracts.
3. Case Studies:
Local Case Studies: Examine specific cases from
Uzbekistan
where
fixed-term
employment
contracts were contested or resulted in legal
disputes. Analyze court rulings and legal outcomes
to understand practical enforcement of the laws.
4. Comparative Legislation:
International Standards: Evaluate how the Uzbek
regulations align with or diverge from
international standards set by organizations like
the ILO. This includes examining compliance with
conventions and recommendations.
RESULTS
Focusing on Article 111 of the Labor Code, we see
that the employer in any case does not have the
freedom to conclude a fixed-term employment
contract. That is, we can see that in Part 1 of Article
111, a fixed-term employment contract can be
concluded only in cases provided for by Articles
112 and 113 of the code. It follows from this that
fixed-term employment contracts concluded in
accordance with the rules established in these
norms are considered reasonably concluded.
The Labor Code of 1995 also limited the rights of
employers when concluding a term contract. In
particular, while its Article 75 establishes that a
fixed-term employment contract for up to 5 years
can be concluded, Article 76 states that only in 3
cases employer (in cases where it is impossible to
conclude labor contracts for an indefinite period,
taking into account the nature of the work to be
performed, the conditions of its performance, or
the interests of the employee; the head of the
enterprise, his deputies, with the chief accountant,
and if there is no chief accountant position in the
enterprise, with the employee acting as the
accountant; may be established in other cases
provided for by law) is entitled to conclude a fixed-
term employment contract. Most interestingly,
Article 76 is called as a “restriction of the
employer's right to conclude a fixed-term
employment contract”, and the three cases
mentioned above are expressed as rights granted
to the employer. It is also possible to derive from
this the idea that the employer will not use this
right if he does not want to.
However, in the Labor Code of 2022, cases when it
is possible to conclude a fixed-term employment
contract are expressed in a different way.
According to Article 111 of the Labor Code, if
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individual labor relations cannot be determined for
an indefinite period, taking into account the nature
of the future work or the conditions of its
performance, a fixed- term labor contract shall be
concluded in accordance with Article 112. In the
cases provided for in Article 113 , a fixed-term
employment contract may be concluded without
taking into account the nature of the future work
and the conditions of its performance by
agreement of the parties to the employment
contract.
The purpose of both norms is one, that is, to make
it clear to the employer when a fixed-term
employment contract can be concluded. But it does
not give a clear conclusion as to whether it is his
right or his obligation. The reason is, Article 112 is
called cases in which a fixed-term employment
contract with an employee is concluded, not cases
in which it is mandatory.
Article 113, by contrast, represents the cases in
which a fixed-term employment contract with an
employee may be concluded, but also establishes
the condition that it must be concluded by
agreement of the parties. From this comes three
different considerations. Firstly, article 113 gives
the employer the right, and secondly, if the
employee does not want, the employer cannot
conclude a fixed-term employment contract,
whereas there is provision for an agreement by the
parties, and thirdly, an employee does not sign an
employment contract unless he agrees to enter into
a fixed-term employment contract under the
circumstances of Article 113, and the employer
does not hire him. Therefore, in any case, this
indicates the superiority of the employer’s right.
It is understood from the content of Article 112 that
this norm not only gives the employer the right, but
also the opinion that it forces him to conclude a
fixed-term employment contract in established
cases. That is, the employer cannot enter into an
employment contract for an indefinite period even
if he wishes, in the circumstances established by
Article 112. This idea is not the final conclusion of
course. So, it is necessary to study to what extent
this hypothesis is justified. In some literature, the
first type of grounds is also known as legal grounds
and the second type as contractual grounds [4]. In
fact, the legal basis for the conclusion of a fixed-
term employment contract does not correspond to
the principle of freedom of the parties to conclude
a contract. In particular, professor M.Rahimov
argues that this principle holds that employers and
employees should have the freedom to negotiate
terms and conditions of employment without
undue interference from the state or other parties
[5].
DISCUSSION
If we analyze this issue at the international level,
Article 2 (3) of the International Labour
Organization Convention No. 158 “Termination of
employment”, 1982 [6] esta
blishes that adequate
safeguards shall be provided against recourse to
contracts of employment for a specified period of
time the aim of which is to avoid the protection
resulting from this Convention. Restrictions on the
implementation of this goal are enshrined in
paragraph 3.1 of the ILO Convention No. 166
“Termination of employment” of 1982 [7]. To this
end, for example, provision may be made for one or
more of the following:
(a) limiting recourse to contracts for a specified
period of time to cases in which, owing either to the
nature of the work to be effected or to the
circumstances under which it is to be effected or to
the interests of the worker, the employment
relationship cannot be of indeterminate duration;
(b) deeming contracts for a specified period of
time, other than in the cases referred to in clause
(a) of this subparagraph, to be contracts of
employment of indeterminate duration;
(c) deeming contracts for a specified period of time,
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when renewed on one or more occasions, other
than in the cases mentioned in clause (a) of this
subparagraph, to be contracts of employment of
indeterminate duration.
The purpose of these provisions is also to protect
employees from being deprived of certain rights
and guarantees as a result of the conclusion of a
fixed-term employment contract [8]. However,
Convention No. 158 has not been ratified by the our
country. Nevertheless, our government has been
following these rules.
It may not be considered a violation of labor
legislation when an employer enters into a contract
for an indefinite period in any case. But if,
unreasonably, an employment contract is
concluded for a certain period, then an offense is
committed by the employer, and a fine is imposed
on him based on Article 49 of the Code of
Administrative responsibility of the Republic of
Uzbekistan [9].
The purpose of this study is to determine whether
the grounds that are actually allowed in the
legislation for the employer to conclude a fixed
–
term employment contract are the rights or
obligations assigned to them. In today's legal
studies,
when
establishing
a
fixed-term
employment contract, determining the rights of
employers and expanding them are raised as the
main issue, the problems arising in law
enforcement practice are aimed at determining
what consequences can arise if the employer enters
into an employment contract for an indefinite
period, in the event that the employer must
conclude a fixed-term employment contract.
Therefore, we believe that it is advisable to put
forward one important point. If the circumstances
in which a fixed-term employment contract could
be concluded by labor law were not clearly defined,
the employer would be able to conclude a fixed-
term employment contract in any case. It meant
that he had the right to choose. However, the
current legislation eliminated this choice in the
employer and limited his right. The limited right,
on the other hand, cannot be considered an
obligation. To ensure the legitimacy of fixed-term
contracts, parties must consider additional legal
factors to protect the rights and obligations of both
parties involved [10].
Judicial practice
. Citizen Q.G. the court filed a
lawsuit against the school No. 46 of the Jomboy
District of the Samarkand region. In his claim, she
said that on may 1, 2023, she was hired as an
English teacher at this school for an indefinite
period, the employer later stated that she was
temporarily hired to replace another teacher who
went on maternity leave and required her to write
an application for dismissal. Q.G. rejected the
employer’s request, because an employment
contract was concluded with her for an indefinite
period. Nevertheless, the employer unreasonably
terminated the employment contract concluded
with her by Article 168 (4) of the Labor Code (with
ground of violation of the established rules on
employment).
M.Sh. is the director of the school. She involved in
the case as defendant and gave her explanation of
the claim. She said: claimant Q.G. knew that she was
hired instead of another employee. But they
conclude employment contract for an indefinite
period. It was a technical mistake. That’s why she
terminated the contract with another ground. She
said that if the contract had clearly defined its term,
she would terminate the contract under Article 158
of the Labor Code. She mentioned that due to the
mistake made in the contract, she terminated the
contract according to paragraph 4 of Article 168 of
the Code.
The court heard the arguments of both parties and
refused to satisfy plaintiff’s claim. Based on this, the
court cited the following: Q.G. has been allocated
few hours of classes with internal documents; she
was given temporary leadership of the class; The
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State Labor Law Inspectorate imposed a fine on the
employer for concluding an employment contract
for an indefinite period. As a result of this, it is
stated that the employment contract was legally
terminated due to the violation of the established
rules on employment [11].
The plaintiff Q.G., dissatisfied with the decision
made in this case and appealed again to the high
standing court. The court of Appeal got acquainted
with the case and considered it unreasonable that
the employee was dismissed by paragraph 4 of
Article 168 of the Labor Code [12]. The reason is,
according to paragraph 52 of the Resolution No. 26
of plenum of the Supreme Court of the Republic of
Uzbekistan 20.11.2023 “On the practice of applying
legislation governing the termination of the
employment contract by t
he courts”, an
employment contract on the basis of paragraph 4
of the first part of Article 168 of the Labor Code is
terminated in cases of violation of the established
rules of employment, if it is not possible to
eliminate the committed violation and it prevents
the continuation of work.
Such cases include, in particular, the following:
1.
recruitment of persons deprived of the right
to hold a certain position or engage in certain
activities during the time appointed by the court
according to the court verdict;
2.
admission to work (service) in one state
organization of persons who are closely related,
when one of them is directly subordinate to the
other or serves under his control (Article 121 of the
Labor code);
3.
admission of minors to work prohibited by
labor law.
In addition, when considering disputes related to
the termination of labor relations according to the
recorded basis, it is necessary for the courts to
determine how a violation of employment was
allowed and whether this could or could not form
the basis for the termination of the employment
contract [13]. In the appeal case highlighted above,
the court held that there was no case of violation of
the rule that provided the basis for the dismissal of
an employee. That is, the fact that the director of
the school concluded an employment contract with
the employee for a indefinite period, instead of for
a certain period, is not a violation of the
employment rule. In this case, the employer on the
ground applied the law incorrectly. The fact that
the employer has in fact violated labor legislation,
but in the process the hiring rule may not arise.
CONCLUSION
If, according to the legislation, the employer enters
into an employment contract for an indefinite
period in the event that a fixed-term employment
contract must be concluded, this can be assessed as
a violation of labor legislation. Because even in the
10 grounds established by Article 112 of the Labor
Code, an employment contract cannot be
concluded for an indefinite period. In such cases,
the employee can contact the employer and ask for
a clear definition of the term of his contract. The
employer also has the right to contact the employee
with an offer to change term the contract. However,
if an employee rejects this offer the employer
cannot fire him. Even if there is no way to get him
to work. It should be noted that if the nature of the
case is permanent, but a fixed-term employment
contract is concluded, then when the employee
applies to the court, his contract is determined by
the court to be concluded for an indefinite period
(according to paragraph 15 of the Resolution No.
26 of plenum of the Supreme Court of the Republic
of Uzbekistan 20.11.2023 “On the practice of
applying legislation governing the termination of
the employment con
tract by the courts”, whether
the fixed-term employment contract was
concluded with the employee on a reasonable
basis, that is, whether the requirements of articles
111, 112, 113 of the Labor Code were taken into
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account when concluding the employment
contract). But if the contract, which must be
concluded for a certain period, is concluded
indefinitely, there are also insufficient legal
grounds for the court to consider the contract to be
fixed-term.
Therefore, we can consider the grounds in Article
112 as a binding basis for the employer. Employers
who do not comply are liable. But this error of the
employer should not undermine the interests of
the employee. It is not allowed to change the term
of the contract without the consent of the
employee, or to terminate the contract for the
expiration of the term in practice, not taking into
account the fact that the contract is inappropriate.
Employers need to be attentive in any case in
concluding an employment contract and setting
conditions.
The findings of this research highlight the need for
clear and precise legal guidelines to balance the
rights and obligations of employers and employees.
The study concludes that while the 2022 Labor
Code introduces restrictions on the use of fixed-
term employment contracts, it is essential to
ensure that these restrictions do not undermine
the contractual freedom that underpins the labor
market.
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