COLLECTIVE AGREEMENT (CONTRACT): GENESIS AND CURRENT STATE OF UNDERSTANDING

Abstract

Background. The article is devoted to the genesis and modern understanding of the collective agreement and the collective contract. This issue gained considerable relevance due to the adoption of the Law of Ukraine "On Collective Agreements and Contracts". The quality and vector of practice in this regard will depend on how participants of legal relations in the field of labour and courts understand the legal nature of the collective agreement and collective contract. 
Methods. The article is based on the following general and special scientific and legal cognition methods: historical, formal logic methods, and legal comparative methods. The historical method was used to study the genesis of the collective agreement and the collective contract. The formal logic methods were manifested in clarifying gaps in the legal regulation of the collective agreement and the collective contract. With the help of the legal comparative method, it was possible to compare the approaches to understanding the collective agreement and the collective contract. 
Results. The genesis of the concept and the legal nature of a collective agreement and a collective contract are considered through the prism of comparative research taking into account the doctrine and the new Law of Ukraine "On Collective Agreements and Contracts". Doctrinal and normative approaches to understanding the concept of collective agreement and collective contract are analyzed. 
Conclusions. By outlining scientific approaches in legal literature, two main approaches are distinguished in understanding the concept of a collective agreement: 1) The first approach reflects a monistic concept: the concept of a collective agreement as a local normative act; 2) the pluralistic concept: the concept of the dual legal nature of the collective agreement. The given concept outlines the idea that the collective agreement acts as both a local normative act and reflects the obligatory nature of the collective agreement. The collective agreement (collective contract) should be considered as a heterogeneous legal substance, that is, through the prism of complex multi-level collaboration: (1) of the legal concept of an agreement (consensus), (2) the legal concept of an agreement combined with 3) the concept of local rule-making (several conditions of a collective agreement (contract) act as a source of labour law in the form of a local normative act). At the same time, the first two concepts outline the obligatory function, because they reflect the collective agreement (contract) in the classical private law sense, and the third one reflects the normative function of the collective agreement (contract). The author's definition of a collective agreement (contract) has been created.