8 February 2023
The Constitutional Court declared paragraph three of Article 22.2 of the Law of Ukraine “On the Upper General Secondary Education” of 16 January 2020 No. 463–IX and cancelled the discriminatory labour conditions for teachers-pensioners.
On Tuesday, 7 February, at the plenary session, the Constitutional Court of Ukraine adopted the decision in the case upon the constitutional petition of 56 People’s Deputies of Ukraine on the conformity of the rules of paragraph three of Article 22.2 of the Law of Ukraine “On the Upper General Secondary Education” of 16 January 2020 No. 463–IX (hereinafter – the Law), according to which “pedagogical employees of the state and communal institutions of general secondary education who reached the age of retirement and who are paid age pension shall work on the basis of labour contracts concluded for a term from one to three years” to the Constitution of Ukraine.
The petitioners stated that the said rule of the Law did not comply with a number of articles of the Basic Law of Ukraine.
In examining the case raised in the constitutional petition, the Constitutional Court proceeded from the fact that the upper general secondary education is mandatory. This rule imposes a positive obligation on the state to implement responsible state policy in the sphere of education, in particular on ensuring the educational establishments with qualified pedagogical staff both with experienced teachers and those employees who have just begun their pedagogical activity. “It is only by providing an optimal balance in ensuring the educational establishments by both young qualified employees and experienced teachers that the state can implement the function of organisation of the effective education system imposed on it”, reads the Decision. That is why the state has to create relevant conditions for comprehensive, fundamental training of young pedagogical employees and at the same time for preserving the available personnel resource of the experienced pedagogical employees, in particular those among them who, regardless of the attainment of a specific age, comply with the qualification professional requirements and are able to exercise pedagogical activity given their physical and mental health.
According to the requirements of the Law and legislation on labour, pedagogical employees of educational establishments shall be admitted to work under labour contracts, according the general rule, by means of concluding an open-ended labour contract, i.e. labour contract for an indefinite term.
In its earlier decisions, the Constitutional Court has stated that “freedom to work means a possibility of an individual to work or not to work; and if he or she chooses to work, then to freely choose it, ensuring to everyone without discrimination to enter into employment relations in order to implement one’s capabilities”. That is a possibility to freely choose a type of work and to voluntarily enter into employment relationships means a freedom of choice of an individual, who seeks to obtain a legal status of an employee, in particular, a free choice of a type of a labour contract.
In this case the legislator, when adopting the disputed rule of the Law had, in fact, deprived the teachers who attained the retirement age of the right to conclude an open-ended labour contract only because they receive a retirement pension and placed such an employee into unequal position as compared to other pedagogical employees who do not have enough record of work to obtain pension. The Constitutional Court noted that a teacher who earlier had the right to conclude an open-ended labour contract and used such right during a certain period may not be deprived of this right only in view of the fact that he or she attained a retirement age and the fact of obtaining a pension since the Constitution of Ukraine does not associate the right to work and the freedom of concluding a labour contract with attainment of a specific age, obtaining a pension or with the work in the institutions of specific form of ownership.
The Court noted that when introducing an obligatory fixed-term labour contract for teachers–pensioners the legislator could have taken into account that “pedagogical experience is a valuable achievement which is a significant factor of ensuring a due level of education, it has an important meaning for participants of educational process and the whole society with such experience acquired by the pedagogical employees when attaining a specific age“.
The Decision reads that the Constitution of Ukraine does not establish the boundary age restrictions to exercise pedagogical activity, and holding the offices of pedagogical employees in the educational establishments. Therefore, the legislator had, in fact, limited the constitutional right of this category of individuals to work by the disputed provision of the Law.
The Constitutional Court also noted that the equality and inadmissibility of discrimination of a person are not only the constitutional principles of the national system of law, but the fundamental values of the global community, which is stressed in the acts of international law on the protection of human and civil rights and freedoms, in particular in the 1966 International Covenant on Civil and Political Rights, the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights case-law, and other international acts and documents.
It is noteworthy, that the Constitutional Court of Ukraine has earlier formulated the legal position on the admissible limits and conditions of regulating the labour relationships, according to which the constitutional principle of equality does not exclude the possibility for the legislator to establish certain differences when regulating the labour relationships. For instance, with account of special (specific) nature of activities, the legislation of Ukraine established, in particular, the boundary age limits to hold offices of public service, law enforcement bodies employees, bodies of local self-government employees etc.
However, the pedagogical activity is not classified as the public service and it does not have such special nature with account of which specific boundary restrictions as to the age could have been established.
In spite of this, by the disputed provision of the Law the legislator necessitated a possibility to extend pedagogical activity for teachers who attained the retirement age and receive pension by the requirement to conclude only a fixed-term labour contract with them which is an unsubstantiated and unfounded limitation of the right of these individuals in labour relationships.
The Constitutional Court of Ukraine concluded that paragraph three of Article 22.2 of the Law of Ukraine “On the Upper General Secondary Education” of 16 January 2020 No. 463–IX does not comply with the Constitution of Ukraine and shall lose its effect from the day of adoption of this decision by the Court.