Dear Mr Tskitishvili and Ms Barkalaia,

I would like to share with you some comments received from various EU services and partners on the draft amendments to the Labour Code. I understand that these comments may refer to way not the latest version of this legislation, however, I hope they will still be helpful in further improving this legal act before its approval. I would also appreciate if you could share it with those working on this draft and also contact us and EU twinning team (see Ms Kubalova in cc) for further consultations and advice.

As the comments were provided in very different formats and as non-expert I am too cautious to misinterpret the comments of the colleagues, I am sending the separately. Therefore, please see the following:

-          The draft amendments to the labour code translated into English for your reference as this is the document for which the comments were provided and it has probably been already changed.

-          Comments and Assessment to the draft labour code amendments provided by the EU twinning experts – see two files attached. Please note that these comments and assessment were also looked at and supported by our colleagues in DG Employment and ETF.

-          Additional comments from ETF and DG Employment please see below.

I would appreciate receiving from you a short update on the current status of these draft amendments to the Labour Code and further indicative steps/plans.

Kind regards,

Jurate Juodsnukyte

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The initial assessments prepared by the Twinning project team (the first one dated 02.03.2020, 59 pages / the second additional one dated 23.03.2020, 21 pages) very thorough and comprehensive. Their assessment is based only on the selected EU Directives from the AA list, and from a legalistic point of view and are very useful. Notably, there are some issues of meanings lost during the language translation from Georgian to English in the labour code itself. Therefore, the following comments below will point to the issues in general for consideration, but do not propose specific formulations.  

-Article 1. Scope: the coverage of the law seems to be large, but the formulation sentence is vogue in terms of whether this law is applicable to specific worker types which are traditionally not covered by labour law, e.g. domestic care or cleaning workers. There is an international trend in the new labour laws to cover such more vulnerable segments. We suggest to make explicit the coverage of the law and make its scope as large as possible.

-Article 12. Labour agreements(contract types): the article seems to foresee only two types of employment contract (open-ended and fixed-term). Then Article 16 deals with ‘part-time job’ separately. The twinning assessment includes detailed comments on the ‘misuse of fixed-term contracts’, which is good and understandable, but they remain as traditional views.

As you all know, the range of non-standard forms of employment is on the increase, varying from temporary (or fixed-term) workers, temporary agency and contract company workers; to own account self-employed workers; freelancers; part-timers; teleworking; independent contractors (sole proprietors); on-call/ on-demand workers; and more recently just-in-time labour or gig workers. This is also linked to the rise with globalisation and the emergence of new business models in the digital economy (e.g. crowd-working in gig economy). For example, short-term work contracts of less than a year is becoming common due to outsourcing of jobs or fragmentation of work tasks. Georgia is also affected by these development, though at a less extend. All these developments could be partially reflected in the labour code, at least for opening the door for new arrangements at lower degree of legal actions (e.g. decrees). Changing labour code gives this opportunity to update the legal rules based on the actual developments in real life. I am not proposing ‘strict regulations’ for ‘pro’ or ‘anti’ rules, but rather foreseeing the fact that such changes are coming, and the workers in those situation are covered and have the most basic rights (e.g. rights under sub-contracting work) – but the final impact should not be preventing these new forms of employment to function either.

- Article 18. Internship: This includes the description of the work in a written contract for interns, but it does not include ‘learning objectives’ at all, which is crucial. Therefore I suggest to add ‘learning objectives to be specified and included explicitly in the work contract. Moreover, I also suggest to include in this article both ‘internship’ and ‘apprenticeship’ as two different formats of on-the-job training; e.g. one generally linked to higher education students/graduates, while other is linked to VET students/ graduates. Maybe it already includes both groups, but was a matter of EN translation.

-Article 37. Maternity leave, child care leave of absence: This article is drafted in such a way that it looks like referring to mothers, not necessarily both parents. Article 37.3 on child care leave does mention both she and he in the EN translation, but in my opinion it remains vogue, and very much open to traditional interpretation. Considering that ‘paternal leave’ directive is among the list of approximation in the Association Agreement, I would suggest a slight reformulation to encourage also fathers to take child care leave.      

In the EU-Georgia “Sub-Committee Cluster-6” meeting on 13 February 2020 in Tbilisi, where the DG EMPL gave an update of new EU directives in the field of employment. Some of these new developments at the EU level would replace previous directive from the Annex XXX in the EU-Georgia Association Agreement, and creates a need for approximation for Georgia as well. I suggest that these could be also taken into account in the current draft as an opportunity. Two most important ones, which have implications for the Georgian labour code are:

-the new Directive 2019/1152 on Transparent and Predictable Working Conditions (June 2019), which repeals the directive 91/533 and affects the way online platforms operate in the EU

-the new Directive 2019/1158 on Work-life Balance for Parents and Carers (April 2019), which repeals the directive 2010/18/EU and others on parental leave