Legal Collisions In Labour Law: Problems Of Translation And Use Of Foreign Terminology

Conflicts in labour law caused by linguistic peculiarities

Conflicts between national and international labour standards arise are in the following situations:

1. Textual inconsistency of international and national norms.

It can arise due to several reasons. Firstly, it is translation problems. Most international standards are not initially adopted in Russian, but in English and (or) French or other foreign languages. So, the Versailles Peace Treaty in §8 stipulated that the language in which the proceedings will be conducted, in the absence of an opposite agreement, will be English, French, Italian or Japanese, depending on what is decided by the interested Allied or Associated Power. Article №396 of the same treaty provides that the International Labour Office, a periodic bulletin devoted to the study of issues relating to industry and labor of international interest, will compile and publish in French, English and in other languages that the Governing Body deems appropriate. Any of the adopted ILO conventions contains an article stating that English and French texts are equally valid (for example, Article №19 of ILO Convention №175 “On Part-time Work” (Geneva, June 24, 1994). ILO Convention on Labor in Maritime Navigation (Geneva, February 23, 2006) contains the section “Official Languages”, where in Article XVI it is also noted that the English and French versions of the text of this Convention are equally valid. The question of translating international treaties into Russian for subsequent ratification, application, study, etc. arises for the Russian Federation. The matter is that the Russian Federation does not have an official translation of the ILO conventions. The official text of the document will exist only when it is published in one of the official languages ​​of the organization receiving the document. Russian is not an official language of the ILO and most international organizations. Opening the text of the Convention in the legal reference system, in the upper right corner we see the inscription "unofficial translation". The accuracy of the presented translation may depend on various factors: the education of the translator, his knowledge of legal terminology, knowledge of translation practice in various countries, etc. For example, one of the key concepts in labour law is a “labour contract”. The word “agreement” in the dictionary has several meanings: treaty, agreement, bond, compact, concord, contract, convention, covenant, pact (Hinton & Baykova, 1997). In labour law, the translation “labour contract” is applied to a personal employment contract. However, it is its second meaning in a row (Mamoulian, 1993). The labour contract in the translation of “labour contract” is also used by Butler (1990). ILO Convention № 22 (Geneva, June 24, 1926) in the Russian version is called “On Employment Contracts of Sailors”, in the English version it is called “Seamen's Articles of Agreement Convention”, that is, we see that in this case the “agreement” is mentioned in the original, but an agreement in the Russian language is not always an employment contract. Another expression for a personal contract of employment is “agreement of employment”. The word “employment” can be used in several meanings, like use, personal hiring, work, employment (Hinton & Baykova, 1997). Thus, when translating even basic concepts, the problem arises of how accurate and equivalent they are to their meaning and how clear it is to organizations and citizens who are using the text.

2. Another relevant linguistic problem of jurisprudence in the last 5-7 years, has been the emergence of concepts that do not exist neither in the Russian language, nor in Russian law, and in our case, labour law. For example, several decades ago in foreign labour law, the term “flexibility” began to be actively used. As applied to Russian labour law, Russian scientists began to adopt such concept as flexibility. However, this term is used differently by different scholars in labour law. For example, flexibility means the possibility of modifying labour and legal concepts under the influence of scientific and technological progress and the economy. So, the term labour contract, as an agreement between the employee and the employer, concluded in writing in modern conditions, has changed because the actual admission to work is possible when the labour relationship is not executed in writing, at the same time, the labor contract as a shift form is being replaced today by its electronic counterpart. In addition, flexibility means flexibility in the application of labour standards for certain categories of workers (for example, when establishing a part-time regime for a woman with a child under the age of 14), as well as the possibility of a flexible approach to the legal regulation of relations between an employee and an employer directly, that is in a specific case (for example, when an employee requests granting him leave without pay). Another example of understanding flexibility is the fact that individual employers consider such flexibility as signs of the modern life. They present such flexibility as an opportunity to dismiss an employee on the same day without giving reasons, so in this case, flexibility acts as a possibility of non-compliance with current legislation, which is explained by economic necessity.

In connection with the development of digitalization in labour law, new terms began to appear, such as electronic document management, digital presence, digital detoxification, etc.

3. Appearance of foreign terms in Russian labour law.

Foreign terms in Russian labour law are mostly English, and sometimes they can be the words of different backgrounds. There are various reasons for this: an increase in the number of comparative legal studies, the absence in Russian of analogies of foreign words and concepts, the reluctance of the authors to choose a Russian-language term, etc. For example, with the development of the digitalization of the economy, foreign terms are increasingly used in Russian labour law. So, with the amendments to the Labour Code of France due to this phenomenon, the appearance of the term “the right to disconnect” (le droit déconnecter) in French law regarding the absence of existing gadgets linking the employee and employer is widely discussed throughout the world. And today, this term is applied in a truncated form "the right to shutdown" without any explanation or clarification.

Currently, the issue of discrimination and its types is debatable. One of them is age discrimination. In this case, citizens of pre-retirement and retirement age, as well as minor workers, etc. are meant. Such discrimination in Russian labour law is often referred to as the term “ageism”. The concept of flexibility was also considered above.

4. The role of the conceptual apparatus in the unification of conflict of laws in the conditions of extraterritorial application of labour law.

Currently, the conceptual apparatus in labour law plays a significant role, acting as the "foundation" on which the national labour legislation of the contracting states is built within the framework of international organizations and economic pools. Such changes occur in several directions:

• the emergence of conceptual constructions in international treaties and through their ratification and in the national legislation of states;

• the establishment of uniform standards in international treaties in the understanding of certain labor and legal terms.

For example, it takes place within the framework of the International Labour Organization. In 2006, ILO recommendation №198 “On Labor Relations” was adopted, which gave the concept and signs of labor relations, one of which was the performance of work in accordance with the instructions and under the supervision of the employer. And only in 2014, after the adoption of the relevant federal law, article №15 in the Labour Code of the Russian Federation as an indication of labour relations was supplemented with the words “in the interests, under the control and control of the employer”. Within the framework of European Union, concepts for different states are also unified, for example "an employee and members of his family", where the wife and children of the employee are understood as family members. From the point of view of European law, an equal sign is placed between those who are in a registered marriage and those who live in an unregistered marriage. Children of both families are also equal in their labour and social rights. However, under the Treaty on the EAEU (Eurasian Economic Union), Article №96 states that a family member is a person who is married to an employee, dependent children and other persons, according to the legislation of the country of employment.

“Jurislinguistics” and its influence on conflict solution in labour law

The requirements for the terms of various terminological systems may be different and not in contact with its actual use. In this case, it is necessary to take into account not only the sphere of fixation, but also the sphere of functioning, where the terminology is removed from the framework of the closed system and becomes freely interwoven with the general literary presentation.

The term is a word or phrase limited in use by a group of people engaged in the same area. In this case, terminologists can identify some special properties of this type of term. These features of the term, in the described case of the legal term, require a certain amount of attention, knowledge of the “environment”, the rules of compatibility, and so on, when translating a legal document.

Lawyers themselves give the following definition of the term of law: A legal term is a word (phrase) used in the legislation, is a generalized name of a legal concept that has an exact and definite meaning, and is distinguished by semantic uniqueness and functional stability (Pigolkina, 1990).

English terminology, as well as the Russian one, has its roots in the preliterate period of the language, since the basis of English law in the Anglo-Saxon period was customs and traditions (Batler & Nersesyants, 1990). The very development of English law is fundamentally different from Russian.

Such concepts as trust ownership, consideration, estopple (estoppel (deprivation of the right of objection)), burglary (burglary), tort (tort), and impact on the personality (trespass to person). The process of terminisation mainly occurs through the rethinking of the meaning of a common word. Although a certain proportion of such words is made up of latinisms and other borrowings that have come historically from the French language.

In addition, in English terminology, unlike Russian, there is a certain proportion of colloquial terms recorded in the corresponding dictionaries:

• yellow contract (a contract for employment, in which there is a clause where the hired worker refuses to join the union) (Garner, 1987);

• joyriding (stealing a car for fun);

• kangaroo (a colloquial term for parliamentary practice that allows the chairman of the commission to allow discussion of only a few amendments to the bill), (Abraham & Hawtrey, 1956).