Convention defines compulsory or forced labour, which should be understood as any
work or service exacted from any person under the menace of any penalty and for
which the said person has not offered himself voluntarily. Therefore, presence and
proof of two factors will allow to recognise the work as forced or compulsory labour,
namely: firstly, the lack of willing to provide the services in order to perform a specific
job; secondly, the existance of penalties for failure to perform such work. Para. 2 of
the same Article containes comprehensive list of works and services, conduction of
which is not considered to be forced or compulsory labour. Provisions of ILO
Convention on the Abolition of Forced Labour (1957) № 105 are focused on the states’
implementation of commitments on immediate and complete elimination of forced
labour in any form.
Para. 3 of Art. 43 of the Constitution of Ukraine enshrines prohibition of forced
labour. However, lack of definition of this concept in Ukrainian law makes it
declarative and incomplete. Only the draft Labour Code of Ukraine stipulates
provisions on the prohibition of forced labour, which are set by the ILO Convention on
Forced or Compulsory Labour (1930) № 29 and the Convention on the Abolition of
Forced Labour (1957) № 105, in particular in terms of prohibition of the use of forced
labour, determining the types of work that qualify as forced labour and those which are
not considered to be forced labour.
However, in violation of provisions of para. 2 of Art. 2 of the ILO Convention №
29 on the definition of the types of work not included into the term forced or
compulsory labour, part 1, para 2, Art. 5 of the draft Labour Code of Ukraine
significantly expands the scope of relations, which allow the use of forced or
compulsory labour. Para. 2 of Art. 2 of the ILO Convention № 29 does not recognise
as forced labor any work or service required on the basis of compulsory military service
laws and applied for work of purely military nature. However, according to part. 1
para. 2, Art. 5 of the draft Labour Code of Ukraine what is not considered to be forced
labour is military or alternative (non-military) service, if the work is of purely military
or official nature. Consequently, domestic legislator unreasonably includes into the
list of works that are not considered to be forced labour the works of official nature
within the military or alternative (non-military) service.
The next principle is to prevent the worst forms of child labour. The existence of
institutions governing young people’s labour rights protection, both in international
and domestic law, is brought about by the special status of minors. This category of
workers has additional benefits and guarantees of labour rights, since such care has an
objective character and stems from two factors. First is the need for public health
protection of young workers from harmful workplace factors, risks and dangers.
Second is providing opportunities for young people’s education, training, cultural and
intellectual development.
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