Scientific development and achievements

SCIENTIFIC DEVELOPMENT
AND ACHIEVEMENTS

London 2018Tatarenko H.

PhD in Law, Associate Professor, Head of the Department of Constitutional Law of the Faculty of Law, Volodymyr Dahl East Ukrainian National University, Severodonetsk, Ukraine

Hnidenko V.

Postgraduate student of the Department ofLaw of the Faculty ofLaw, Volodymyr Dahl East Ukrainian National University, Severodonetsk, Ukraine.

FLEXIBLE EMPLOYMENT FORMS IN THE SYSTEM OF STATE

ADMINISTRATION AT THE LABOR MARKET: PROBLEMS AND
PROSPECTS OF LEGAL REGULATION

Introduction. Problem statement. Nowadays in Ukraine there are significant reform processes that affect all spheres of state functioning. The system of state administration, which is of great importance for the realization of the state as a social, economically successful, legal and democratic one, is not an exception. The legal basis of the reform of state administration system is the Reforming Strategy of State Administration of Ukraine for 2016-2020, approved by the Cabinet of Ministers of Ukraine in 2016. The reform aims at reducing the administrative burden of state regulation, improving the quality of administrative services provision, ensuring the legality and predictability of administrative actions, which will improve the position of the state in the world's competitiveness ratings. The aim of the Strategy is to improve the system of public administration and, accordingly, increase the level of competitiveness of the country, taking into account the European choice and the European perspective of Ukraine. The strategy is developed in accordance with the European standards of proper administration in the issues of transformation of the system of state administration bodies.

The achievement of this goal requires the necessity of conducting economic, social and legal researches, aimed at forming a single categorical apparatus, developing and consolidating methods, means of effective administrative management, defining standards of quality assessment, conditions and directions for improving the system of state administration.

Modem methods of state administration in the labor market do not fully take into account the changes in social and labor relations, conditioned by the emergence of new forms of employment, which differ from the standard employment by their nature of formation and the process of usage. The issue of improving state administration is actualized not only by a system of employment in general, but also by administration in sphere of using flexible employment forms, as it will allow to use labor potential more efficiently, providing innovative development of the national economy.

Analysis of recent researches and publications. In particular, the following scientists have dedicated their researches to the problems of the organization of state administration of Ukraine as a whole, and the organization of state employment administration: Yu.V. Volynchuk., B.V. Novikov, V.M. Pasichnyk, G.F. Siniok, P.V. Krush, L.Ya. Koldina, V. Dyakova, A.M. Fomichova, A.V. Rajchenko, G.I. Dibnis,

O.R. Sharko, D. Smitburg, V. Tompsona, T. Piters, D. Osborn, R. Stefenson, A. Link, T. Gebler, D. Iston, G. Almond, M. Veber etc. Recently, the issue of the use of flexible forms of employment became the object of attention of domestic scientists such as M.G. Aleksandrov, N.B. Bolotina, L.Ya. Ginzburg, V.V. Zhemakov, M.I. Inshyn, G.A. Kaplina, A.M. Kolot, L.V. Kotova, O.Ya. Lavriv, A.R. Macyuk, O.I. Procevskyj, S.M. Prylypko, P.D. Pylypenko, V.G. Rotan, O.V. Smy'mov, V.M. Tolkunova, G.I. Chany'sheva, N.M. Hutoryan, O.M. Yaroshenko etc. However today theoretical issues of state employment administration and use of its flexible forms remain rather controversial. The analysis of this problem shows that the content and scope of its scientific development is deficient and requires comprehensive research.

Problem setting. To analyze state employment policy and its administrative mechanisms, to study the peculiarities of state administration at the labor market and to determine the place of flexible employment forms in the system of state administration at the labor market.

State employment policy. Our state suffers recently from social instability, low level of economic development and high unemployment. Today the labor market in Ukraine is rather volatile, and the rate of employment is low. It should be noted that among problems in the labor market, the imperfection of the structure of employment and its efficiency which is directly related to the situation in various sectors of the economy, illegal internal and external labor migration and shadow (illegal) employment, is also defined. Also, we need to note that the inefficient employment structure reflects a model of economic development based on cheap labor, low level of social guarantees and unstable model of state employment administration. Therefore, the current state of the economy naturally requires high-quality state administration, and also the development and implementation of effective employment policy, since only positive changes in the employment structure will be able to ensure the country's exit from the crisis and the move towards economic growth.

In Ukraine, as in most other countries, there is a profound transformation of employment. It is about changing its basic forms, types and content. The domestic labor market is gradually borrowing global trends. Leasing of personnel, distance employment and non-standard schedules of working time can be considered as the principle employment innovations. The new quality gains the flexibility of the labor market in its various forms and manifestations. These employment processes have a significant impact on the social and labor spheres, as under their influence, both the structure and the content of social and labor relations change [1, p.4].

The International Labor Organization (1988) Convention on the Employment Promotion and Protection against Unemployment stipulates that the acceding States “will, by all appropriate means, implement a policy of promoting full, productive and freely chosen employment through all appropriate means, including social security. Such means should include, among other things, employment services, vocational training and professional orientation” [2]. This suggests that the state should implement its employment policy in such a way that it can ensure the right of every person to freely choose of any form or type of employment, despite the rapid development of the flexibility of the labor market and the emergence of new employment forms.

It should be noted that the lack of active state policy concerning the support of the latest trends of the development of the sphere of employment leads to the formation of a relatively new problem for the Ukrainian society, namely the problem of actualizing the risks of socio-economic rejection of workers.

The solution of the employment issues is related to overcoming the negative impact of certain socio-economic factors on the state of employment of the population, which is the result of existing risks of economic and social development of the country at the present stage and the existing shortcomings in the implementation of reforms. The prerequisite for their solution is the definition of the main directions of implementation and priority tasks of state employment policy in the context of carrying out socio-economic reforms in the country and developing of a set of measures concerning state regulation of employment in accordance with these tasks [3, p.9].

One of the main problems of implementing state employment policy is that the principles of the Law of Ukraine “On employment of population” requires from state bodies to implement active social and economic policies through: tax, monetary, investment, budget, social, foreign economic and innovation policies [4, p. 15-16], in Ukraine the state employment policy is mainly concentrated on the issues of the State Employment Service and the Ministry of Social Policy. The results of the analysis show that the employment situation is not connected with the components of macroeconomic policy, investment, monetary, foreign economic, tax and budget policies.

When defining state employment policy, it should be borne in mind that this is a rather complex and voluminous category. State employment policy includes a huge number of factors that in one way or another affect some of its characteristics and determine the target orientation. Definite influence on state employment policy has the political system of society. In addition, the structure and content of the state employment policy is formalized by legal system that defines its main parameters (legal status of subjects, principles of implementation, limits of state intervention, measures of liability for offending behavior, etc.). At the same time, the quality of legal principles that forms state employment policy and the effectiveness of their using, is a key point of its characteristics. State employment policy is directly influenced by the actual activities of state bodies, as well as subjects of certain relations.

P.V. Morozov, characterizing state employment policy, indicates that in general, state policy is a system of goals, principles, general and special, short-term and long­term measures, secured by economic preconditions, which have a mechanism for monitoring and implementation [5, p.93]. In this case, in a law-governed state, the policy must have a legal form, that is, be carried out within the framework established by law, based on international and constitutional principles.

It should also be noted that state employment administration requires appropriate infrastructure elements, a specific set of measures, a certain consistency and coherence in their implementation, which in its totality determines the mechanism of the state employment administration.

We consider it necessary to stop and analyze the mechanism of the state employment administration.

Thus, the mechanism of the state employment administration is a system intended for the practical implementation of state administration and the achievement of set goals, which has a definite structure, methods, levers, tools for influencing the object of administration with the relevant legal, regulatory and information support [6, p. 6].

In our opinion, the most successful system of levers and instruments of state administration has been described by O.G. Mordvinov. The system has been grouped according to the features into the following groups:

1. 
   State administration means: administrative (standards, permits, limits, prohibitions, restrictions, normative standards, fines); economic (taxes, state investments, purchases, subsidies, donations, commercial loans, loans, prices for agricultural products); information (publications in mass media, documents).
   
2. 
   State administration instruments: legislative and legal (laws, decisions, decrees); regulatory and administrative (orders, decisions, instructions, rules, regulations, agreements); organizational and economic (plans, projects, state and local budgets, government procurement and state contract, agreements, target programs, forecasts) [7, p. 79-80].
   

In turn, state administration means and instruments are implemented through state administration methods, that is, the means of state administration influence. In the vast majority of scientific studies, the classical direct methods of state employment administration (legislative regulation of the conditions of hiring and using labor, stimulation of creation of new workplaces, measures for the preservation and increase of the level of employment at enterprises) and indirect (state financial policy, monetary, fiscal, payment of various kinds of unemployment benefits) are determined [8, p. ISO- 181].

In our view, among the mechanisms of state employment administration, there should be legal, administrative, organizational and economic mechanisms, which, in turn, include appropriate methods and instruments of influence.

1. 
   The legal mechanism of state employment administration is a system of all state-legal (juridical) means by which the state influences on public employment relations of the population [9]. The main legal means of state regulation of employment in Ukraine are the Constitution and laws of Ukraine; Decrees of the President of Ukraine; resolutions and other acts of the Verkhovna Rada of Ukraine, resolutions and orders of the Cabinet of Ministers of Ukraine, normative acts of central executive authorities of Ukraine; normative acts of local state administrations.
   
2. 
   The administrative mechanism of state employment administration is a set of methods of influence, based on the use of objective organizational relations between people and general organizational principles of administration. The administrative mechanism of state employment regulation is carried out by organizational, administrative and economic methods.
   

The characteristic features of the administrative mechanism are as follows: direct influence on the administrated object by establishing its powers (rights and duties); one-sided choice by the subject of administration of the nearest and final goal, the tasks of the administrative process, the order, the term of their implementation by the object, resource support, the conditions for the implementation of tasks at each specific stage; the legal obligation of administration assets (decrees, resolutions, decisions, orders), non-performance of which is considered as a violation of duties and may lead not only to administrative or disciplinary liability, but also to criminal one [10].

3. 
   The organizational mechanism of state employment administration is a set of different specific organizational elements in the administrative mechanism, which should organize regulation, administration in the interests of state government, effective operation of the state-administrative system. The objects and subjects of regulation, organizational infrastructure, goals, tasks, principles and results of regulation should be mentioned among the elements [11, p.l 15].
   

It should be noted that the organizational mechanism of state employment regulation of population uses two methods of influence: administrative and organizational. The first should include the establishment of the procedure for conclusion of labor contracts, the introduction of compulsory deductions of entrepreneurs to national employment funds, the definition of quotas for employment; the second should include the creation of the employment service, the creation and improvement of information system serving the labor market, the state system of professional orientation of youth, personnel training and retraining, development of employment promotion programs.

4. 
   The economic mechanism of state employment administration is a system of methods of direct and indirect influence and their focus on social and economic development, in compliance with the requirements of economic laws in certain exchange relationships and with the usage of other economic instruments, in order to create conditions, which ensure the achievement of high economic results [12, pp. 72- 73].
   

In particular, the investments and subsidies, aggregate demand, wages, unemployment benefits, taxes and tax benefits, monetary instruments (NBU discount rate, preferential loans) and economic sanctions (fines) can be referred to the effective instruments of the economic mechanism.

So, it should be noted that the complexity of the current economic situation is explained by the ineffective governance system that was formed at the beginning of the post-Soviet period. Taking it into account, the main positions of state employment policy are the relations between the employment policy and the economic policy of the state. The effectiveness of this connection depends directly on how consolidated the efforts of all branches of government, employers' and trade unions, central and local executive authorities and social partners, who should oversee the implementation of state employment policy. In order for state employment policy be effective, it is necessary for the state to ensure the practical implementation of the mechanisms of public administration, to which it is necessary to include: the legal, administrative, organizational and economic mechanisms of state employment administration Only in the complex they will be able to guarantee an effective state employment policy and will provide a real opportunity to secure, implement and protect the right for decent work.

Administration of labor market. The Ukrainian labor market was created under the influence of the inherited centralized system of labor and employment organization, the transformational crisis, as well as the recent socio-economic transformations. The state of the labor market is determined, first of all, by actions in the field of macroeconomic regulation, as well as by the effectiveness of actions in various spheres of social policy, in particular in the fields of general and professional education, pension support, income level, etc. The formation of new components of the Ukrainian labor market still lags behind the overall pace of economic transformation, acting as an additional factor that negatively affects the dynamics of employment and unemployment [13].

In our opinion, one of the components of the search of ways to reform the national system of employment regulation for improving the efficiency of state administration of this process is to study the mechanisms, principles, legal principles and forms of regulation of the labor market in foreign countries.In general, five dominant models of labor market regulation are distinguished: American, German, English, Swedish and Japanese [14, p.l 1]. It should be noted that the main differences of the Ukrainian model of labor market regulation from the above- mentioned are that they apply different approaches to allocate funds to active and passive measures of state employment policy, as well as in the difference of the legislative provision of employment guarantees and legislative consolidation of employment forms.

1. 
   American model of labor market regulation.
   

The basis of this model is the subsidiary type of socio-labor relations, the orientation of the employee to achieve personal success and self-realization. This model is characterized by the following features:

• 
  decentralization of the labor market and legislation on employment and social insurance;
  
• 
  high level of control over the employee by the employer;
  
• 
  high geographical and professional mobility of workers;
  
• 
  relatively high rate of unemployment;
  
• 
  professional career is connected with change of workplace;
  
• 
  high level of mobility;
  
• 
  the level of wages is established on the basis of qualification of work and its complexity;
  
• 
  promotion, as a rule, is not connected with the extension of the professional qualification profile;
  
• 
  attention is paid to the issues of professional orientation;
  
• 
  there are both private agencies and special centers for professional guidance at colleges and universities [15, p.251].
  

2. 
   German model of labor market regulation.
   

In our opinion, one of the most effective ways of solving unemployment problems, which is currently acutely facing Ukraine, is the way Germany is going. The German (or neo-liberal) employment model is based on active employment policy and is characterized by the following features:

• 
  the state encourages all producers (employers and employees) who create new
  

jobs;

• 
  supports the existing level of employment under the modernization of enterprises;
  
• 
  provides privileges to enterprises that refrain from mass layoffs of employees;
  
• 
  the main part of subsidies is directed to cooperatives formed on the basis of bankrupt enterprises from the unemployed who have certain knowledge but lack of business organization skills [10, c. 51];
  
• 
  high level of legal protection of the employee;
  
• 
  strict norms of labor law, focused on preserving j obs;
  
• 
  high legal minimum wage;
  
• 
  relatively small differentiation of wage.
  

3. 
   English model of labor market regulation.
   

State activity is important for the English employment model. The legislative system in England provides the opportunity for local authorities to encourage entrepreneurial initiatives independently [16]. This model is characterized by the following features:

• 
  collecting and disseminating information on the state of supply and demand at the labor market;
  
• 
  integrated vocational training and employment system;
  
• 
  training and retraining programs for increasing the competitiveness of the women and youth labor market;
  
• 
  development of targeted programs of public work;
  
• 
  development of unemployment insurance funds;
  
• 
  development of the social security system;
  
• 
  an extensive network of semi-governmental organizations;
  
• 
  issues of employment and unemployment are taken care of by the Commission on Labor, which carries out an advisory function with regard to the Government;
  
• 
  employment regulation is carried out by the Department of Employment [17,
  

p.281].

4. 
   Swedish model of labor market regulation.
   

A characteristic feature of Swedish politics is the prevention of unemployment, but not the fight against its consequences. The government of the country in social policy pays special attention to the development of measures aimed at creating new jobs, mainly in the economy state sector; coordinating the migration of the population and labor force by providing subsidies and loans for moving families from areas with excessive labor force to areas where vacancies are available; ensuring the operative access of the population to timely information on available vacancies, etc. [17, p.280]. This model is characterized by the following features:

• 
  achievement of full employment of the able-bodied citizens;
  
• 
  providing of social guarantees to the population;
  
• 
  ensuring equal opportunities for the achievement of welfare, vocational training and retraining of unemployed persons or those who are in danger of unemployment;
  
• 
  creation of new workplaces, mainly in the economy state sector;
  
• 
  ensuring geographical mobility of the population and labor force;
  
• 
  providing of information services based on computer databases on vacancies by country regions;
  

- encouraging the development of small business through the provision of public loans and subsidies [17, p.280].

5. 
   Japanese model of labor market regulation.
   

The Japanese model of labor relations is characterized by the support of employees' sense of involvement in the firm, which is stimulated by special forms of social assistance. There are: increase of wages in case of creation of a family or the birth of a child, the purchase of housing for the employee by the company or payment of a loan for its purchase. A characteristic feature of this model is a special strategy for preventing unemployment on the basis of maintaining the accounting number by transferring employees to other enterprises of the firm, as well as ensuring a shorter working day. However, in addition to large corporations that pursue a life-long employment policy, there are many small firms in Japan, where workers do not have any employment guarantees at all.

Another feature is a slight differentiation of wages between low-skilled and highly skilled workers (not more than in 4 times). In Japan trade unions operate mainly on the domestic level [18].

The Japanese model provides guarantees of employment for employees throughout the working life, increasing all types of benefits depending, first of all, on the length of service. The unemployment rate in Japan in recent years is 3-3.5%. However, domestic scientists point out that this is a model that can be implemented in a specific mental environment [20, p.370], considering that living conditions differ from Western European and Ukrainian standards.

Consideration of national characteristics of countries with market economic shows that they are characterized by the refusal from strict regulation of labor relations in the conditions of a stable and long-term existence of a system of guaranteed protection of workers’ rights. Another peculiarity is the flexibility of labor relations and the weakening of direct state interference in them.

It should be noted that although each model has its own specific features, it is possible to identify certain common trends that are present in each model and which state employment policy should be directed to. In our opinion, they should include the following:

1. 
   professional orientation of the population, personnel training and advanced training;
   
2. 
   employment of the unemployed population;
   
3. 
   legislative providing of socio-labor relations;
   
4. 
   promoting the creation and development of flexible labor market and non­standard forms of employment;
   
5. 
   social protection of the unemployed population;
   
6. 
   conducting economic policy in the interests of employment.
   

Thus, the modem approach to employment in public policy requires a profound analysis of the employment situation, which should be considered not as a purely social phenomenon, which causes interest only in terms of the scale of unemployment, its professional aspects, but rather much deeper, because the structural crisis of the economy is also a crisis of the employment structure in the national economy of the country. The essence of these directions is to create economic conditions for employment through the development and implementation of economic policies aimed at developing new and maintaining effective workplaces. In connection with this, a combination of the investment, monetary, tax, fiscal policy of the state with the employment policy needs to be created [20, p. 262].

Having analyzed the existing models of labor market regulation, we can conclude that state employment regulation is directly proportional to the main market regulators of its formation, which in different regions have their own specific features. The Ukrainian labor market is no exception and also requires a clear system of administration that will allow to achieve high employment rates.