FAQ
05.04.2012 | Olga
Can the labor agreement, made with the director of commercial organization with foreign investments established in the Republic of Belarus, be subject to provisions of foreign law?
Article 3 of the Labor Code of the Republic of Belarus (hereinafter – the Labor Coder) provides for the connecting factor lex loci. Therefore, the general rule for determination of the sphere of effect of the Labor Code defines its application to all employees and employers having concluded labor agreements in the territory of the Republic of Belarus. Meanwhile, unlike representative offices of foreign companies, commercial organizations with foreign investments can not set the place of the labor agreement abroad and to subject it to regulations of the foreign law under such basis.
Current labor legislation determines certain peculiarities of labor relations with employees of organizations with foreign investments, including directors of these organizations being employees with labor obligations on management of the organization, in the Article 320 of the Labor Code in the framework of implementation of the unity and differentiation principle of labor regulation.
Thus, under regulation of labor relations with employees (Belarusian citizens) of commercial organizations with foreign investments it is allowed to include provisions different from those (including reference to certain norms of foreign law) determined by the Labor Code and other labor legal acts into labor agreements with them, except a number of provisions worsening employee’s job conditions in comparison to labor law regulations, particularly set in the Article 320 of the Labor Code.
In particular, by means of incorporation of such provisions into statutory documents, local normative acts or labor agreements, effect of regulations of the Article 255 of the Labor Code determining prohibition on staff double jobholding can be eliminated, as well as effect of chapter 18 of the Labor Code setting peculiarities of legal regulation of director’s work.
As of foreign employees of commercial organizations with foreign investments, the Labor Code and other legislative acts are applicable subsidiary against ratified and consummated international treaties of the Republic of Belarus, statutory documents, local normative acts of such organizations and labor agreements, which, in turn, may contain provisions of foreign law.
Hereby, according to analysis of mentioned above legislative regulations, we can conclude there is a possibility of incorporation of reference to foreign law norms into the text of labor agreements with employees of organizations with foreign investments, including directors, subject to restrictions, defined by the Article 320 of the Labor Code.
Meanwhile, according to the Article 97 of the Investment Code of the Republic of Belarus (hereinafter – the Investment Code) labor and associated relations at commercial organizations with foreign investments are subject to conditions of collective agreements and labor agreements (contracts) which can not worsen job conditions of employees of such organization against conditions stipulated by effective legal acts of the Republic of Belarus.
Despite the fact the Investment Code is not a special labor law act, we do not recommend to include reference to norms of foreign law into labor agreements with directors – employees of these organizations, in case they worsen job conditions of employees in comparison to conditions specified by the Belarusian labor law.
Moreover, we shall outline that subject to regulations of the Law of the Republic of Belarus of December 30, 2012 No. 225-Z “On external labor migration” the director of the commercial organization with foreign investments – foreigner not holding a permanent residence permit in the Republic of Belarus, is not obliged to obtain a special permit to the right of labor activity in Belarus.
Current labor legislation determines certain peculiarities of labor relations with employees of organizations with foreign investments, including directors of these organizations being employees with labor obligations on management of the organization, in the Article 320 of the Labor Code in the framework of implementation of the unity and differentiation principle of labor regulation.
Thus, under regulation of labor relations with employees (Belarusian citizens) of commercial organizations with foreign investments it is allowed to include provisions different from those (including reference to certain norms of foreign law) determined by the Labor Code and other labor legal acts into labor agreements with them, except a number of provisions worsening employee’s job conditions in comparison to labor law regulations, particularly set in the Article 320 of the Labor Code.
In particular, by means of incorporation of such provisions into statutory documents, local normative acts or labor agreements, effect of regulations of the Article 255 of the Labor Code determining prohibition on staff double jobholding can be eliminated, as well as effect of chapter 18 of the Labor Code setting peculiarities of legal regulation of director’s work.
As of foreign employees of commercial organizations with foreign investments, the Labor Code and other legislative acts are applicable subsidiary against ratified and consummated international treaties of the Republic of Belarus, statutory documents, local normative acts of such organizations and labor agreements, which, in turn, may contain provisions of foreign law.
Hereby, according to analysis of mentioned above legislative regulations, we can conclude there is a possibility of incorporation of reference to foreign law norms into the text of labor agreements with employees of organizations with foreign investments, including directors, subject to restrictions, defined by the Article 320 of the Labor Code.
Meanwhile, according to the Article 97 of the Investment Code of the Republic of Belarus (hereinafter – the Investment Code) labor and associated relations at commercial organizations with foreign investments are subject to conditions of collective agreements and labor agreements (contracts) which can not worsen job conditions of employees of such organization against conditions stipulated by effective legal acts of the Republic of Belarus.
Despite the fact the Investment Code is not a special labor law act, we do not recommend to include reference to norms of foreign law into labor agreements with directors – employees of these organizations, in case they worsen job conditions of employees in comparison to conditions specified by the Belarusian labor law.
Moreover, we shall outline that subject to regulations of the Law of the Republic of Belarus of December 30, 2012 No. 225-Z “On external labor migration” the director of the commercial organization with foreign investments – foreigner not holding a permanent residence permit in the Republic of Belarus, is not obliged to obtain a special permit to the right of labor activity in Belarus.
05.03.2012 | Vladimir
Does the current Belarusian legislation provide a possibility for foreign citizens and legal entities to acquire residential or non-residential premises into ownership by virtue of purchase and sale contracts?
According to the Article 6 of the Housing Code of the Republic of Belarus, the following persons have the right to acquire residential or non-residential premises into ownership:
• citizens of the Republic of Belarus;
• foreign citizens and apatrides;
• legal entities regardless the pattern of ownership;
• state bodies.
In terms of Belarusian migration legislation all the foreign citizens and apatrides (hereinafter – foreigners) are divided into following groups:
1) permanently residing on the territory of the Republic of Belarus;
2) temporary residing on the territory of the Republic of Belarus;
3) temporary staying on the territory of the Republic of Belarus.
All the foreigners (irrespective to affiliation with any of the abovementioned groups), and foreign legal entities have right to acquire into ownership residential and non-residential privately-owned premises by virtue of conclusion of purchase and sale contracts without limitation.
Permanently residing on the territory of the Republic of Belarus foreigners have right to acquire into ownership residential and non-residential privately- and publicly-owned premises by virtue of conclusion of purchase and sale contracts.
As to temporary residing and temporary staying on the territory of the Republic of Belarus foreigners, the current Belarusian legislation contains particular limitations in respect to acquiring premises into ownership. Thus, the abovementioned group of foreigners has no right to acquire into ownership residential publicly-owned premises by virtue of purchase and sale contracts. The same rule is applicable to foreign legal entities.
But nowadays there is one exception. Citizens of the Russian Federation have right to acquire into ownership residential and non-residential premises on the territory of the Republic of Belarus on one level with Belarusian citizens.
*Residential socially oriented premises, situated in military base areas are not subject to sale.
• citizens of the Republic of Belarus;
• foreign citizens and apatrides;
• legal entities regardless the pattern of ownership;
• state bodies.
In terms of Belarusian migration legislation all the foreign citizens and apatrides (hereinafter – foreigners) are divided into following groups:
1) permanently residing on the territory of the Republic of Belarus;
2) temporary residing on the territory of the Republic of Belarus;
3) temporary staying on the territory of the Republic of Belarus.
All the foreigners (irrespective to affiliation with any of the abovementioned groups), and foreign legal entities have right to acquire into ownership residential and non-residential privately-owned premises by virtue of conclusion of purchase and sale contracts without limitation.
Permanently residing on the territory of the Republic of Belarus foreigners have right to acquire into ownership residential and non-residential privately- and publicly-owned premises by virtue of conclusion of purchase and sale contracts.
As to temporary residing and temporary staying on the territory of the Republic of Belarus foreigners, the current Belarusian legislation contains particular limitations in respect to acquiring premises into ownership. Thus, the abovementioned group of foreigners has no right to acquire into ownership residential publicly-owned premises by virtue of purchase and sale contracts. The same rule is applicable to foreign legal entities.
But nowadays there is one exception. Citizens of the Russian Federation have right to acquire into ownership residential and non-residential premises on the territory of the Republic of Belarus on one level with Belarusian citizens.
*Residential socially oriented premises, situated in military base areas are not subject to sale.
