Signs of labor relations. Labor relations and labor relations
An employment legal relationship is a social-labor relationship arising on the basis of an employment contract and regulated by the norms of labor law, according to which one subject - the employee - undertakes to perform a labor function subject to the rules of internal labor regulations, and the other subject - the employer is obliged to provide work, ensure healthy and safe conditions labor and pay the employee in accordance with his qualifications, complexity of work, quantity and quality of work.
Signs of an employment relationship
The labor relationship is characterized by certain inherent characteristics. The characteristic features of an employment relationship include the following:
The personal nature of the rights and obligations of an employee who is obliged only by his labor to participate in the production or other activities of the organization (employer). An employee does not have the right to represent another employee in his place or entrust his work to another, just as an employer does not have the right to replace an employee with another, except in cases established by the Law (for example, during the employee’s absence due to illness, etc.). There are no such restrictions in civil law, where the contractor has the right to involve other persons in performing the work.
An employee is obliged to perform a certain, predetermined labor function (work in a certain specialty, qualification or position), not a separate (separate) individually specific task by a certain date. The latter is typical for civil obligations associated with labor activity, the purpose of which is to obtain a specific result (product) of labor, to complete a specific assignment or service by a certain deadline.
The specificity of labor legal relations also lies in the fact that the performance of the labor function is carried out in conditions of common (cooperative) labor, which necessitates the subordination of the subjects of the labor legal relationship to the internal labor regulations established by the organization (employer). Fulfilling a labor function and the associated subordination to internal labor regulations means the inclusion of citizens in the workforce (work collective) of the organization. All three features mentioned in this paragraph constitute the characteristic features of a citizen’s work as an employee, in contrast to the subject of a civil law relationship. It is well known that a single and complex labor legal relationship combines both coordination and subordination elements, where freedom of labor is combined with subordination to internal labor regulations. This is impossible in civil law terms, based on the fundamental principles of civil law enshrined in Art. 2 Civil Code of the Russian Federation.
The remunerative nature of the employment relationship is manifested in the response of the organization (employer) to the performance of work - in the payment of wages, usually in cash. The peculiarity of the labor legal relationship is that payment is made for live labor expended, carried out by the employee systematically during established working hours, and not for a specific result of materialized (past) labor, the execution of a specific order or service, as in a civil law relationship.
A characteristic feature of the labor legal relationship is also the right of each of the subjects to terminate this legal relationship without any sanctions in compliance with the established procedure. At the same time, the employer is obliged to warn about the dismissal of an employee on his initiative in established cases and pay severance pay in the manner prescribed by the labor law
Question 19,20. The concept and system of legal relations in the sphere of application of hired labor.
Labor relations are regulated by labor law and act in the form of labor relations.
Labor relationship- this is a labor relationship arising on the basis of an employment contract and regulated by the norms of labor law, according to which one subject - the employee - undertakes to perform a labor function subject to the rules of internal labor regulations, and the other subject - the employer is obliged to provide the work stipulated by this agreement, ensure healthy, safe and other working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations, employment contracts, including remuneration of the employee in accordance with his qualifications, complexity of work, quantity and quality of work.
Features of the labor relationship:
1) the subjects (parties) of the labor relationship are always the employee and the employer;
3) the labor legal relationship is of a continuing nature, the rights and obligations of the parties are implemented systematically in the process of labor activity in the field of using dependent labor;
Complementary labor relations, as a rule, exist together with the main labor relationship. But the appearance of related ones depends on the occurrence of specific legal facts (committing a disciplinary offense, causing damage to an employee or employer, etc.).
Since an individual can realize his abilities not only by concluding an employment contract, but also using civil contracts (personal contract, assignment, paid services, etc.). It is necessary to take into account the distinctive features of an employment relationship from civil law and other relations arising in connection with the use of labor. The following features are identified as the main characteristics of labor relations in the sphere of the use of dependent labor.
1. The subject of the labor legal relationship is the process of labor activity itself for a certain labor function in the general organization of labor that exists within the organization of the employer - an individual. The subject of civil labor relations is the result of labor (construction of a facility, delivery of cargo to its destination, writing a book, developing an invention, computer programs, etc.).
2. Having concluded an employment contract (that is, when labor relations arise), the employee is obliged to obey the internal labor regulations of a particular organization established by the employer, observe labor and technological discipline, and bear disciplinary or financial liability for violations thereof. What does not exist in civil law relations. The employee works to achieve the final result at his own peril and risk.
3. The conclusion of an employment contract presupposes the performance of a labor function - work in a position in accordance with the staffing table, profession, specialty, indicating qualifications; specific type of work assigned to the employee, usually through his own personal labor. The exception is work at home and in small retail trade, where an employee can involve family members in performing his work. In civil law relations, the customer is not interested in who will fulfill the order and how, since only the final result is important to him.
4. An employer who uses an employee’s labor on the basis of an employment contract is obliged to create healthy and safe working conditions for him, and to comply with labor legislation, including legislation on labor protection. This responsibility is not always assigned to the customer in civil law relations.
5. The employee and employer have the right to terminate the employment contract (termination of the employment relationship) without any sanctions, in compliance with the legal procedures established by law. In this case, the employer is obliged to notify the employee of dismissal in cases provided for by labor legislation, as well as pay severance pay and other compensation. If the terms of a civil contract are not observed, sanctions may be applied to the parties.
6. The existence of labor relations presupposes the systematic (as a rule, at least twice a month) payment of wages in accordance with the labor expended by the employee during established working hours. Civil labor relations, as a rule, involve payment for labor based on the final result. The amount of payment is determined arbitrarily by the customer and the contractor. It does not depend on the length of working time spent by the contractor.
Types of labor relations depend on the types of relevant labor relations, the type of labor contract underlying the emergence, change, existence and termination of the labor relationship, the form of ownership on which they arise, the organizational and legal form of the organization (employer), the area in which the implementation of the labor relationship will take place . That is, there are as many types of labor relations as there are types of employment contracts. Within one organization (employer), it is possible to have several types of employment contracts, and, consequently, labor relations.
Based on the scope of the employment contract, labor relations can be classified into those implemented: in the regions of the Far North; in diplomatic missions and consulates.
Depending on the legal form they can be divided into labor relations arising in: joint-stock companies, partnerships, production cooperatives, unitary and state enterprises; and, based on the form of ownership, we can distinguish legal relations applied by employers created on state and private property.
A special place among employment contracts is occupied by a part-time employment contract. Its specificity lies in the fact that on its basis several labor relations can arise, in which the same employee will be a party. Moreover, they can arise between the same employee and the employer or another employer(s).
Contents of the employment relationship consists of two elements: material and volitional. Material content of the labor relationship constitute the actual behavior of the employee and the employer. The employee actually performs work for a certain job function, and the employer pays him wages for this work and creates normal working conditions for work.
Volitional (legal) content of the labor relationship form subjective labor rights and obligations of the employee and the employer. Any subjective right as an element of the labor legal relationship represents the unity of the possibility of behavior of the most eligible employee or employer; the ability to require certain behavior from an employee or employer; the possibility of resorting to the coercive force of the state in case of non-fulfillment or improper fulfillment of requirements by the employee or employer. Thus, subjective law provides answers to the questions of what opportunities the subjects of labor relations have in relation to each other.
The subjective rights of an employee are characterized by specificity, pretentiousness and relative freedom of behavior in their implementation. An employee has the right to demand that the employer provide work in accordance with his job function, at the same time, when performing his job duties, he has the right to independently take initiative aimed at introducing advanced labor methods. Pretentiousness is manifested in the fact that the employee has the right to demand the provision of safe and healthy working conditions and normal working conditions.
The subjective rights and obligations of each employee, as a party to the employment relationship, establish the boundaries and content of the employee’s possible and proper behavior, within which he has the right to act, demand, claim, enjoy benefits and satisfy the employer’s counter interests and needs.
The employer also has subjective rights and obligations. He has the right to demand that the employee perform work in accordance with the labor function, of proper quality and on time. At the same time, he is obliged to allocate a workplace to the employee, provide the necessary tools, special clothing, etc.
It is important to note that the subjective labor rights and obligations of the employee and the employer act as corresponding to each other. That is, the employee’s right corresponds to the employer’s obligation and vice versa.
That is, the employment relationship arises not only on the basis of an employment contract, but this contract predetermines its content.
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COURSE WORK
on the topic: “Labor relations”
Introduction
Chapter 1. Concept and types of labor relations
1.1 Concept and characteristics
1.2 Types of labor relations
Chapter 2. Structure of the labor relationship
2.1 Subjects of labor relations
2.2 Object of the labor relationship
2.3 Subjective rights and legal obligations
Chapter 3. Employee and employer, the main subjects of the labor relationship
3.1 Employee as a subject of labor relations
3.2 The employer as a subject of the labor relationship
Chapter 4. Grounds for the emergence, change and termination of the employment relationship
4.1 Grounds for the emergence of an employment relationship
4.2 Grounds for changing the employment relationship
4.3 Grounds for termination of the employment relationship
Conclusion
List of sources used
Introduction
Labor law, as one of the leading branches of Russian law, is subject to regulation, social relations in the most important sphere of life of society - in the sphere of labor. Since labor relations occupy an important place in the life of every modern person, this topic will always be relevant.
“In order for this or that social relationship to take the form of a legal relationship, two conditions are required first of all: firstly, it is necessary that this social relationship is expressed or can be expressed in acts of volitional behavior of people, secondly, it is necessary that it was regulated by the will of the ruling class, elevated to law, i.e. rules of law"
Yes, indeed, the general theory of law connects legal relations with the operation of a rule of law and defines it as a social relationship regulated by a rule of law. Based on this, legal relations in the field of labor law are labor relations regulated by labor legislation and derivative relations closely related to them. All social relations that are the subject of labor law always appear in real life in the form of legal relations in this sphere, i.e. they have already implemented labor legislation.
When writing this work, the goal was to consider the labor relationship in all its aspects. Firstly, the very concept of a legal relationship, its features and types, secondly, the structure of the labor legal relationship, which includes the rights and obligations of the participants in this relationship, thirdly, consideration of the subjects of the labor relationship, separately the employee, separately - the employer, and finally, grounds for the emergence, changes and termination of labor relations.
All types of legal relations of labor law are volitional, i.e. arise at the will of the subjects of labor law. Each legal relationship consists of elements: object, subject, content, basis for emergence and termination. By studying these concepts, we will understand the structure of the employment relationship. And, we will analyze in detail the main subjects of the labor relationship: the employee and the employer. We will also superficially touch on other subjects of labor relations.
In addition to workers and employers, the subjects of legal relations in the sphere of labor can be various participants: employment service bodies in legal relations to ensure employment; state authorities and local governments as social partners in social partnership legal relations, etc.
Any legal relationship in the sphere of labor law arises, changes and ends. In the fourth section we will look at the legal facts, the specific grounds that underlie the emergence, change and termination of labor relations.
It is these problems that my course work is devoted to, in which I will try to most fully reveal such a pressing topic as labor relations.
All of the above once again proves that the topic of my course work is very interesting for careful consideration. And it will be interesting for me, as a future lawyer, and simply a member of our society, to work with her.
labor relationship
Chapter 1. Concept and types of labor relations
1.1 Concept and characteristics
An employment relationship is a social relationship regulated by the norms of labor law, based on an agreement between an employee and an employer on the employee’s personal performance for payment of a labor function (work in a certain specialty, qualification or position), the employee’s subordination to internal regulations while the employer provides working conditions provided for by labor legislation , collective agreement, agreements, employment contract.
This relationship is always two-way. Of course, to fully characterize any legal relationship it is necessary:
a) establish the basis for its occurrence, change and termination
b) determine its subjective composition
c) identify its content and structure
d) show what its object is
All these topics will be reflected in my course work. In this chapter we will consider only the signs and types of labor relations.
Certain types of legal relations are regulated by civil law. The branch of civil law is labor law, which in turn regulates labor relations; they are the subject of labor law. The characteristic features of an employment relationship, which allows us to distinguish it from related legal relationships, are:
1. The personal nature of the rights and obligations of the employee, who is obliged only through his labor to participate in the production or other activities of the employer. There are no such restrictions in civil law, where the contractor has the right to involve other persons in performing the work.
2. The employee is obliged to perform a certain, predetermined labor function (work in a certain specialty, qualification or position), and not a separate individual specific task by a certain deadline. The latter is typical for civil obligations associated with labor activity, the purpose of which is to obtain a specific result (product) of labor, to complete a specific assignment or service by a certain date.
3. The specificity of labor relations also lies in the fact that:
- the performance of the labor function is carried out in conditions of common (cooperative) labor;
- a citizen, as a general rule, is included in the personnel of the organization;
- this necessitates the employee’s subordination to the internal labor regulations established by the employer.
That is, a single and complex labor legal relationship combines both coordination and subordination elements: freedom of labor is combined with subordination to internal regulations. This is impossible in civil law terms, based on the fundamental principles of civil law enshrined in Art. 2 Civil Code of the Russian Federation.
4. The paid nature of the employment relationship is manifested in the employer’s response to the performance of work - in the payment of wages, as a rule, in cash. The peculiarity of the labor legal relationship is that payment is made for live labor expended, carried out by the employee systematically during established working hours, and not for the specific result of materialized (past) labor, the execution of a specific order or service, as in a civil law relationship.
5. The complex nature of the employment relationship presupposes the existence of corresponding rights and obligations for each of the parties. The right of each of the subjects (employee and employer) to terminate this legal relationship without any sanctions in compliance with the procedure provided for by the Labor legislation Chapter 13 of the Labor Code of the Russian Federation.
1.2 Types of labor relations
By exercising their rights and assuming responsibilities when performing certain work, the parties are legally bound, and their actions are limited by the framework of the relevant legal norms, i.e. participants in public relations, acting as a subject of labor law, must comply with the requirements of the current labor legislation, as well as comply with the terms of labor and collective agreements, social partnership agreements.
We already know that labor relations are volitional and arise at the will of the subjects of labor law, including on the basis of actual admission to work with the knowledge or on behalf of the employer or his representative in the case where the employment contract was not properly drawn up.
The objects of labor relations are material interest in the results of labor activity, satisfaction of the economic and social needs of the employee and employer, and protection of the relevant labor rights of the subjects.
This concept of labor relations seems broader; it includes the actual labor relationship between the employee and the employer and other social relations directly related to labor. Each of these legal relations differs in subjects, content, grounds for emergence and termination.
The types of labor relations are determined by the subject of labor law, and among them are:
Legal relations to promote employment and employment;
Labor relations between employee and employer;
Legal relations on labor organization and labor management;
Legal relations regarding professional training, retraining and advanced training of workers;
Legal relations between trade unions and employers to protect the labor rights of workers;
Social partnership legal relations;
Legal relations for supervision and control;
Legal relations regarding the material liability of the parties to the employment contract;
Legal relations for resolving labor disputes;
Legal relations regarding social insurance.
All types of legal relations can be divided into:
Basic (labor relations);
Related and organizational and managerial (on employment, organization and management of labor, relations of trade unions to protect the labor rights of workers, social partnership legal relations, legal relations on training, professional retraining and advanced training of personnel);
Protective legal relations (on supervision and control, financial liability of the parties to an employment contract, resolution of labor disputes, compulsory social insurance).
As we have already said, each of these legal relations differs in subjects, content, grounds for origin and termination. For example, when considering the legal relationship to promote employment and employment, we will see that they arise when citizens are employed and recruited by employers, including with the help of the employment service.
These legal relations, as a rule, precede labor legal relations, but can also follow previous labor relations when workers are released, and also accompany labor relations when, without terminating their legal relations with one employer, the employee is looking for a new job.
Depending on the subjects, legal relations regarding employment and employment arise between:
The employment service body and the citizen (when the latter applies to the employment service with an application for assistance in finding a job and registering the person applying as unemployed);
The employment service body and the employer (from the moment the employer acquires legal capacity until its liquidation);
The employed citizen and the employer (if the employer is provided with a referral from the employment service).
We will see something different when considering organizational and managerial legal relations that contribute to resolving issues related to the organization and remuneration of labor, satisfying the socio-economic interests of both work collectives, industries, regions, and the individual employee.
These legal relations arise between:
The collective of employees and the employer;
The trade union body at work and the employer;
Representatives of social partners at the federal, regional, territorial, sectoral and other levels.
Organizational and managerial legal relations arise for an employee from the moment he joins the workforce. These legal relations are of a continuing nature; they arise both between the collective of workers and between the employer and trade union bodies.
The object of these legal relations are the socio-economic interests (wages, labor protection, etc.) of both an individual employee and a team or industry.
The subjects are representative bodies of workers in a social partnership legal relationship, representatives of employers, and in some cases, executive authorities. Social partnership legal relations arise in connection with the beginning of collective bargaining. They last until the expiration of the relevant agreements.
Chapter 2. Structure of the labor relationship
The question of the structure of the labor legal relationship is of particular interest due to the fact that its interpretation diverges from the generally accepted one in legal theory.
In the theory of law, the prevailing civilistic approach to this problem is. Typically, in legal terms, the following main elements are distinguished: 1) subjects of law, i.e. parties (participants) of the legal relationship; 2) the content of the legal relationship (material - the actual behavior of the subjects and legal - subjective rights and obligations); 3) objects of legal relationship.
Labor lawyers do not classify the subjects of the labor relationship as part of its structure. N.G. Aleksandrov noted back in 1948 that it is inappropriate to call the subjects of the labor relationship “elements”. The labor legal relationship arises between the subjects, and not the subjects together with it as one of the elements. In this regard, highlighting the corresponding institution and chapter in the educational literature in the general part of labor law can be considered quite justified. These phenomena should not be explained solely by opportunistic, economic or methodological reasons associated with the formation of a new attitude towards the individual, democracy, and the formation of market economic conditions.
But, despite these differences, in this chapter of our course work, we will consider all three elements of the labor relationship.
From the theory of labor law it follows that the content of the legal relationship, and in particular the labor legal relationship, represents the unity of its properties and connections. Participants in an employment relationship are bound by subjective rights and obligations, a certain combination of which reveals its legal content. It is also customary to define the material content of the labor legal relationship - this is the behavior itself, the activities of the subjects, the actions they perform. That is, the social labor relationship acquires a legal form (becomes a labor legal relationship) after its participants have become subjects of the emerging legal relationship, endowed with subjective rights and responsibilities.
Thus, the interaction of participants in a social labor relationship appears in a legal relationship as the interaction of its subjects, their interconnectedness with subjective rights and obligations, when the right of one (employee) corresponds to the obligation of another (employer). The labor legal relationship consists of a whole complex of labor rights and obligations, that is, it is a complex but unified legal relationship and is of a continuing nature. Its subjects constantly (systematically) exercise their rights and fulfill their obligations, as long as the labor legal relationship exists and the employment contract on the basis of which it arose is in force.
Labor legal relations develop as a result of the influence of labor law norms, and therefore their participants are predetermined (indicated) subjective rights and obligations. In this case, subjective right is understood as a legally protected ability (legal measure) of an authorized person (one subject of the labor relationship) to demand from another - the obligated subject - the performance of certain actions (certain behavior). The subjective legal obligation of a participant in an employment relationship is a legal measure of the proper behavior of the obligated person.
In other words, subjective duty consists of proper behavior consistent with subjective law. Since an employment legal relationship always arises between specific persons on the basis of an agreement reached between them, this legal relationship is defined as a form of specific rights and obligations of its participants. In this sense, the labor legal relationship outlines the framework within which the behavior of its participants can be realized.
2.1 Subjects of labor relations
One of the subjects of the labor relationship is always an individual - a citizen. To enter into labor relations, citizens must have labor legal personality. Unlike civil law, labor law does not know the independent concepts of “legal capacity” and “capacity”. This is explained by the fact that everyone who has the ability to work must carry it out through their personal volitional actions. You cannot perform work duties with the help of other persons. Labor legal personality is a legal category that expresses the ability of citizens to be subjects of labor legal relations, to acquire rights through their actions and to assume responsibilities associated with entering into these legal relations. Such legal personality, as a general rule, arises from the age of 15. But there are also many young people who, studying in general education institutions, educational institutions of primary and secondary vocational education, want to work in their free time from study. This gives them the opportunity not only to have a certain income, but also to better prepare for an independent working life.
Taking into account these factors, it is allowed to hire teenagers from the age of 14. It is necessary that work from this age does not affect the health of adolescents and does not disrupt the learning process. A mandatory condition for hiring a teenager upon reaching the age of fourteen is the consent of the parents, adoptive parents or guardian. It is important to note that the entry into an employment relationship of persons from the age of 15 is accompanied by the establishment of benefits for them in the field of working time. They work less than adult workers. The specific length of working time is differentiated depending on age: for workers aged 16 to 18 years - no more than 36 hours per week, for workers aged 15 to 16 years, as well as students aged 14 to 15 years working during the holidays - no more than 24 hours a week. If students work in their free time from school (not during vacations), then the duration of their working time cannot exceed half of the standard working time established for persons of the corresponding age, i.e. for students from 14 to 16 years old - no more than 12 hours per week, and from 16 to 18 years old - no more than 18 hours per week.
Let us illustrate this point with an example. A 17-year-old college law student works in the court office after classes. His working hours are 18 hours a week. In cases where this student works in court and is on vacation, he is assigned a working week of 36 hours.
A citizen, as a party to an employment legal relationship, has various legal connections with the other party to this legal relationship - a legal entity. In some cases, labor relations arise between two individuals. These include cases when a citizen, as an individual entrepreneur, employs another citizen or when an employment relationship arises regarding the running of a household consumer economy (a labor relationship with a domestic worker, with a car driver, etc.).
Legal entities are recognized as organizations that have separate property in ownership, economic management or operational management and are liable for their obligations with this property, can acquire and exercise property and personal non-property rights in their own name, bear responsibilities, and be a plaintiff and defendant in court.
The legislation provides for various organizational and legal forms of a legal entity. Commercial and non-profit organizations can act as subjects of labor relations. Commercial organizations include business partnerships (full partnership, limited partnership, production cooperative, state and municipal unitary enterprise) and companies (limited or additional liability company, joint stock company).
Non-profit organizations - consumer cooperatives, public or religious organizations (associations), charitable and other foundations, as well as legal entities in other forms provided by law. All these organizations have labor legal personality to establish labor relations with both employees and citizens - participants in the organizations. The boundaries of labor legal personality are fluid, since all organizations are independent in determining the number of employees and their wages. The exception is budgetary institutions, however, they, based on the wage fund approved by them, can independently determine their number.
2.2 Object of the labor relationship
The object of the employment relationship is the performance of a certain type of work, characterized by a certain specialty, qualification and position.
The characteristics of the object of the labor legal relationship are currently not unambiguous, since in labor legal relations the object is essentially inseparable from their material content (behavior of the obligated, etc.). The beneficial effect delivered by the employee (reading a lecture, etc.) can usually be consumed during the production process. And since in labor law material goods (objects) are practically inseparable from the employee’s labor activity, the characteristic of the material content of labor relations exhausts the question of their object.
The material content of the labor relationship is understood as the actual behavior of its participants (subjects), which is ensured by subjective labor rights and obligations. The factual is always secondary and subordinate to the legal (volitional) content of the labor legal relationship, which is formed by the subjective rights and obligations of their participants. The content of these rights and obligations is expressed in the legal ability, within the boundaries established by law, to act, demand, claim, enjoy benefits, etc. and the responsibility to satisfy the counter-interests and needs of other entities.
Based on the unity of the material and legal (volitional) components, we can say that the subjective rights and obligations of employees included in the content of the labor legal relationship are realized and specified statutory rights and obligations that make up the content of the legal status of employees. These rights and obligations of the subjects of the labor relationship will be discussed in the next section of the work.
2.3 Subjective rights and legal obligations
So, the labor legislation of the Russian Federation provides for the basic (statutory) rights of participants in the labor relationship. In relation to the individual employee, these rights and obligations in accordance with the Constitution of the Russian Federation (Articles 30, 37) are enshrined in general terms in Art. 2 Labor Code of the Russian Federation. Subjective rights and obligations that make up the content of a separate legal relationship represent a specification of these statutory rights and obligations.
At the same time, the rights and obligations of the employer, unlike the employee, have not received such clear and special provisions in a specific article of the Labor Code or other federal law. Certain rights and obligations of the employer are established in many articles of the Labor Code, federal laws, local acts, and may be enshrined in the charters (Regulations) of an organization (legal entity), etc.
Considering that the subjective right of one participant in the labor relationship corresponds to the legal obligation of another, we will indicate here only the obligations of the subjects of the labor relationship.
The employee's responsibilities include the following:
a) performance of a certain labor function, which is stipulated with the employer when concluding an employment contract (Article 15 of the Labor Code). The certainty of the labor function is ensured by Art. 24 of the Labor Code, according to which the administration of the organization does not have the right to require an employee to perform work not stipulated by the employment contract;
b) compliance with labor discipline, submission to internal regulations, established working hours, use of equipment, raw materials, other property of the employer in accordance with the provisions and rules, preservation of this property, compliance with instructions and rules on labor protection, etc.
The main responsibilities of the employer (organization) can be grouped as follows:
a) compliance with the work required by the labor function and, accordingly, ensuring the actual employment of the given employee as a performer of the labor function, as well as the creation of conditions that ensure its productive implementation;
b) ensuring healthy and safe working conditions provided for by labor legislation, collective agreement and agreement of the parties;
d) meeting the social and everyday needs of the employee.
Subjective rights and obligations that make up the content of the labor legal relationship arising on the basis of a legal act - an employment contract, correspond to the terms of this contract. The employment contract, as will be shown below, plays a fundamental role in the legal regulation of labor relations. Like any other, it has its own content - these are the conditions on which the parties reached an agreement. These agreed terms of the employment contract correspond to the content of the employment relationship, its subjective rights and obligations. Thus, the labor legal relationship not only arises on the basis of an employment contract (legal act): this contract determines its content.
However, the employment relationship and the employment contract are not equivalent. The terms of the contract are formed in the process of its conclusion by the parties on the basis of freedom and voluntariness of labor, but should not worsen the position of workers in comparison with the law (Part 1 of Article 15 of the Labor Code). The agreed terms, as it were, determine the scope of the content of the emerging employment relationship. However, an employment contract cannot determine all its contents and all elements. A citizen, on the one hand, and an organization (legal entity) or an individual entrepreneur, on the other, act as private individuals when concluding an employment contract and establishing an employment relationship. It is as private individuals that they act on the basis of each other’s freedom of choice, the freedom to conclude an employment contract and the freedom to determine its conditions (content). At the same time, private individuals cannot fully realize the public law element of the labor relationship through the legal form of an employment contract. This public law element consists in establishing a normative minimum standard of employee labor rights and guarantees, the deterioration of which in an employment contract leads to the invalidity of its individual conditions or the contract as a whole.
Consequently, the labor legal relationship, the content of which is determined by the terms of the employment contract, also carries an independent essence, independent content. The independence of the labor relationship is manifested in the legislative establishment at a minimum level of labor rights and guarantees, which imperatively predetermine a number of conditions of the employment contract.
When concluding an employment contract, the parties do not have the right to reduce the specified level of rights and guarantees (possible changes relate only to its increase), just as they cannot exclude them or change them by others. This is one of the features of labor law, which indicates its social orientation and allows us to characterize the branch of labor law in the Russian legal system as social law.
Note that this is itself based on the disciplinary and directive power of the employer. The employee’s subordination is imperatively “built-in” into the content of the employment relationship, not allowing these individuals to exclude it or replace it with another condition when concluding an employment contract.
Chapter 3. Employee and employer, the main subjects of the labor relationship
3.1 Employee as a subject of labor relations
The labor legal status of a citizen as a subject of labor law is common to all citizens. It clearly reflects the differentiation of legal regulation by labor law. In addition to the general labor status, the subject of labor law may have a special labor status (woman, minor), secured by special norms.
A citizen actually becomes a subject of labor law from the moment he looks for a job, and he acquires the status of an employee from the moment he is hired by a specific organization. To do this, a citizen must have legal personality.
As a general rule, the period of its onset is associated with the achievement of the biological age specified by law - 16 years. According to Art. 63 of the Labor Code of the Russian Federation, in order to prepare young people for industrial work, it is allowed to employ persons studying in general education institutions, educational institutions of primary and secondary vocational education who have reached the age of 14, subject to the following conditions:
1) they can only be accepted to perform light work that does not cause harm to health;
2) to perform work in free time from study, without disrupting the learning process;
3) the consent of parents, adoptive parents or trustees and the guardianship authority is required.
In cases of receiving general education, or continuing to master the basic general education program of general education in a form of study other than full-time, or leaving a general education institution in accordance with federal law, an employment contract can be concluded by persons who have reached the age of fifteen years to perform light labor that does not cause harm to their health.
In cinematography organizations, theaters, theatrical and concert organizations, circuses, it is allowed, with the consent of one of the parents (guardian) and the permission of the guardianship and trusteeship authority, to conclude an employment contract with persons under the age of fourteen to participate in the creation and (or) performance (exhibition) ) works without harming health and moral development. In this case, the employment contract on behalf of the employee is signed by his parent (guardian). The permit from the guardianship and trusteeship authority specifies the maximum permissible duration of daily work and other conditions under which the work may be performed.
Individuals who have reached the age of 18 years have the right to conclude employment contracts as employers, provided that they have full civil capacity, as well as persons who have not reached the specified age - from the day they acquire full civil capacity.
Individuals with independent income who have reached the age of 18, but whose legal capacity is limited by the court, have the right, with the written consent of the trustees, to enter into employment contracts with employees for the purpose of personal service and assistance with housekeeping.
On behalf of individuals who have independent income, who have reached the age of 18, but have been declared legally incompetent by a court, their guardians may enter into employment contracts with employees for the purpose of providing personal services to these individuals and helping them with housekeeping.
Minors aged 14 to 18 years, with the exception of minors who have acquired full civil capacity, can enter into employment contracts with employees if they have their own earnings, scholarships, other income and with the written consent of their legal representatives (parents, guardians, trustees).
Legal representatives (parents, guardians, trustees) of individuals acting as employers bear additional responsibility for obligations arising from the employment relationship, including obligations to pay wages.
Special requirements have been established for certain categories of persons. Thus, a foreign citizen must obtain a work permit to work on the territory of the Russian Federation. At the same time, the employer receives permission to attract and use foreign workers.
Only a citizen of the Russian Federation who has reached the age of 18, speaks the state language and meets other requirements established by current legislation has the right to enter the civil service.
The Labor Code does not establish an age limit for entering into an employment relationship; The exception is a certain range of jobs and positions. Thus, according to the Law on the State Civil Service, the age limit for holding a civil service position is 65 years. However, even after reaching this age, you can enter into an employment relationship to perform work where the age limit is not established.
Additionally, when hiring, special labor legal personality is assessed, which is expressed in the degree of professional training, the presence of a certain specialty or qualification.
In some cases, health status may be a special requirement. As a rule, this is associated with performing work using sources of increased danger (drivers, pilots, etc.) or in production that creates an increased danger to the environment (railway, nuclear power plant, etc.).
After concluding an employment contract, a citizen becomes an employee, he has the legal status of an employee, which is expressed in the presence of certain labor relations of rights and obligations.
The basic (statutory) rights of an employee are listed in Art. 37 of the Constitution of the Russian Federation and Art. 21 Labor Code of the Russian Federation:
Conclusion, amendment and termination of an employment contract;
Providing the employee with work stipulated by the employment contract;
Providing a workplace that meets state regulatory requirements for labor protection and the conditions provided for by the collective agreement;
Timely and full payment of wages in accordance with your qualifications, complexity of work, quantity and quality of work performed;
Providing rest, ensured by establishing normal working hours, reduced working hours for certain professions and categories of workers, providing weekly days off, non-working holidays, paid annual leave;
Complete reliable information about working conditions and labor protection requirements in the workplace;
Professional training, retraining and advanced training;
The right to association, including the right to create trade unions and join them to protect their labor rights, freedoms and legitimate interests;
Participation in the management of the organization;
Conducting collective negotiations and concluding collective agreements and agreements through their representatives, as well as information on the implementation of the collective agreement and agreements;
Protecting your labor rights, freedoms and legitimate interests by all means not prohibited by law;
Resolution of individual and collective labor disputes, including the right to strike;
Compensation for damage caused to him in connection with the performance of his job duties and compensation for moral damage;
Compulsory social insurance in cases provided for by federal laws.
The rights of the employee and their implementation require him to respond - to fulfill the responsibilities that he assumed by concluding an employment contract with the employer. In the most general form, these obligations are formulated in Art. 21 Labor Code of the Russian Federation. These duties are fundamental to the application of the legal norms contained in the chapters of Part II of the Code: in Ch. 22 “Labor rationing”, ch. 30 “Labor discipline”, ch. 34 “Occupational Safety and Health Requirements”, etc. The responsibilities provided for in the Code are specified in laws and other regulatory legal acts, in particular, in personnel regulations and internal labor regulations.
The main responsibilities of the employee include:
Conscientious performance of official duties;
Compliance with labor discipline, internal labor regulations and technological rules and regulations;
Compliance with established labor standards;
Careful attitude towards the property of the employer and other employees;
Compliance with labor protection and occupational safety requirements (safety precautions, industrial sanitation);
Immediate notification to the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the employer’s property.
The rights and responsibilities of an employee, as a rule, are stipulated in the employment contract, as well as in the job description, safety instructions, internal labor regulations, and other local acts. However, in all cases they are limited to the scope of the labor function performed and cannot go beyond the limits established by the current labor legislation.
The statutory rights and obligations of an employee have legal guarantees, which are the legal means enshrined in labor legislation for the implementation of these rights and obligations, as well as their protection.
3.2 The employer as a subject of the labor relationship
An employer is an individual or legal entity acting as a subject of labor law when entering into an employment relationship with an employee in order to use his labor in his legitimate interests.
The legal status of the employer includes:
1) employer legal personality;
2) basic labor rights and obligations in relation to each employee and the entire workforce.
The legal personality of an employer begins from the moment of registration in the manner prescribed by law, when it acquires the ability to conclude employment contracts. In this case, the necessary conditions will be: the presence of a wage fund, determination of the number and staff of employees and some others.
The basic labor rights of an employer include the rights:
Conclude, amend and terminate an employment contract;
Demand from the employee the conscientious performance of official duties, compliance with internal labor regulations, and careful handling of property;
Encourage employees and hold them to disciplinary and financial liability;
Adopt local regulations.
The employer's main job responsibilities are:
Comply with labor legislation and other regulatory legal acts containing labor law norms, local regulations, terms of the collective agreement, agreements and employment contracts;
Provide employees with work stipulated by the employment contract;
Ensure safety and working conditions that comply with state regulatory labor protection requirements;
Provide employees with equipment, tools, technical documentation and other means necessary to perform their job duties;
Provide workers with equal pay for work of equal value;
Pay the full amount of wages due to employees within the terms established in accordance with the Labor Code of the Russian Federation, collective agreement, internal labor regulations, employment contracts;
Conduct collective negotiations, as well as conclude a collective agreement in the manner established by the Labor Code of the Russian Federation;
Provide employee representatives with complete and reliable information necessary for concluding a collective agreement, agreement and monitoring their implementation;
Introduce employees, upon signature, to the adopted local regulations directly related to their work activities;
Timely comply with the instructions of the federal executive body authorized to carry out state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms, other federal executive bodies exercising control and supervision functions in the established field of activity, pay fines, imposed for violations of labor legislation and other regulatory legal acts containing labor law norms;
Consider submissions from the relevant trade union bodies and other representatives elected by employees about identified violations of labor legislation and other acts containing labor law norms, take measures to eliminate the identified violations and report on the measures taken to the specified bodies and representatives;
Create conditions that ensure the participation of employees in the management of the organization in the forms provided for by the Labor Code of the Russian Federation, other federal laws and the collective agreement;
Provide for the everyday needs of employees related to the performance of their job duties;
Carry out compulsory social insurance of employees in the manner established by federal laws;
Compensate for harm caused to employees in connection with the performance of their labor duties, as well as compensate for moral damage in the manner and under the conditions established by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation;
Perform other duties provided for by labor legislation and other regulatory legal acts containing labor law standards, collective agreements, agreements, local regulations and employment contracts.
In all cases, the employer must strictly comply with the requirements of the current labor legislation, within the framework of which additional responsibilities may be assigned to the employer. For example, a collective agreement may provide for the employer’s obligation to provide additional days for the next vacation, establish salary bonuses for length of service in a particular organization, etc.
Depending on the content and nature of the rights and obligations belonging to the employer, his legal status is determined by the presence of rule-making power (adopting local regulations), administrative power (issuing binding orders regarding the performance of labor duties), disciplinary power (application of incentives, measures disciplinary and financial liability).
On behalf of the employer, the head of the relevant organization and its administration enter into labor relations. For the obligations of employers-institutions financed in whole or in part by the owner (founder), as well as employers of state-owned enterprises, arising from labor relations, the owner (founder) bears additional responsibility in accordance with federal laws and other regulatory legal acts of the Russian Federation.
The head of the organization has his own status: he issues orders and instructions (mandatory for all employees of this enterprise), exercises the right to hire and fire, etc. At the same time, he himself performs labor functions, a contract is concluded with him, which stipulates his rights, duties and responsibilities, the period, procedure and amount of remuneration, grounds for dismissal (including additional ones).
In addition to the previously mentioned rights and obligations, there are also some specific features relating to individual employers.
Employers are individuals registered in the prescribed manner as individual entrepreneurs and carrying out entrepreneurial activities without forming a legal entity, as well as private notaries, lawyers who have established law offices, and other persons whose professional activities in accordance with federal laws are subject to state registration and (or) licensing, who have entered into labor relations with employees in order to carry out the specified activities (hereinafter referred to as employers - individual entrepreneurs). Individuals who, in violation of the requirements of federal laws, carry out the specified activities without state registration and (or) licensing, who have entered into labor relations with employees for the purpose of carrying out this activity, are not exempt from fulfilling the duties assigned by the Labor Code to employers - individual entrepreneurs; individuals who enter into employment relationships with employees for the purpose of personal service and assistance with housekeeping.
An individual employer draws up an employment contract with an employee in writing and must:
Register this agreement with the relevant local government authority;
Make insurance premiums and other obligatory payments in the manner and amounts determined by federal laws;
Issue insurance certificates of state pension insurance for people entering work for the first time.
The document confirming the time of work for an individual employer is a written employment contract (Article 309 of the Labor Code of the Russian Federation). An employer - an individual who is not an individual entrepreneur - does not have the right to make entries in the work books of employees, as well as to draw up work books for employees hired for the first time.
Among employers, in addition to legal entities and individuals, another entity is named, endowed in cases established by law with the right to conclude employment contracts. Such a subject could be, for example, a local government body, if this is specified in the federal law.
The Labor Code names legal entities as employers, therefore branches and representative offices cannot be employers. According to Art. 55 of the Civil Code of the Russian Federation, branches and representative offices are not legal entities. They are endowed with property that created them by the legal entity and act on the basis of the provisions approved by it. Their leaders, acting in civil matters, act under the power of attorney of a legal entity.
The head of a branch or representative office may have a power of attorney, giving him the right to hire and dismiss employees, however, in this case, the branch or representative office is not an employer. The employer in relation to the employees of a branch or representative office is a legal entity on whose behalf the head of the branch or representative office exercises the authority to conclude an employment contract and terminate it. If the head of a branch or representative office is not authorized to hire, labor relations with employees of the branch or representative office arise on the basis of an employment contract concluded by the legal entity itself.
Chapter 4. Grounds for the emergence, change and termination of the employment relationship
4.1 Reasons for the emergence of labor
Legal facts that entail the emergence of labor relations are called the grounds for their occurrence. The peculiarity of these facts is that events, offenses, or a single administrative act cannot serve as such. These facts represent legal actions (the expressions of the will of the employee and the manager acting on behalf of the employer) performed in order to establish labor relations.
The labor legal relationship is based on the free expression of its participants, the legal expression of which is an employment contract - a bilateral legal act. An employment contract as a bilateral legal act plays a very important role in the mechanism of legal regulation; it “translates” the norms of labor law to subjects and gives rise to a labor legal relationship.
As a general rule, an employment contract is the basis for the emergence of most labor relations. The legal significance of a specific employment agreement (contract) lies in the fact that it acts as the basis for the existence and development of legal relations regarding the use of workers’ labor. This is expressed as follows. Firstly, an employment contract is the most common basis for the emergence of labor relations between employees and specific enterprises, institutions, and organizations. Secondly, labor relations exist in time due to the concluded employment contract. It is the employment contract that is the legal basis for those mutually dependent actions of its parties, which must be performed by the parties systematically or periodically in order to realize over time their rights and fulfill the obligations assumed. The systematic or periodic exercise of rights and obligations is characteristic of the legal relationship generated by an employment contract as a continuing one, in which the rights and obligations are designed for long-term coordination of the behavior of the parties. Thirdly, an employment contract individualizes the place of work (enterprise, institution, organization with which the employment contract is concluded) and the type of work (specialty, qualification or position) of the worker as a subject of the labor relationship. An employment contract can individualize other conditions of the employment relationship for a given citizen, with the limitation, however, that the terms of the contract that worsen the position of workers in comparison with labor legislation are invalid (Article 5 of the Labor Code).
However, it is necessary to distinguish between the conditions: direct, the content of which is entirely determined by the contracting parties themselves, and derivatives, the content of which is not developed by the contracting parties, but is provided for in laws and other centralized and local regulations (for example, in legislation on working time or in local regulations on bonuses for employees). Such derivative conditions when concluding an employment contract are also accepted for implementation, since by force of law (Article 15 of the Labor Code) they form an integral part of the employment contract and endow its parties with a set of mutual rights and obligations.
A feature of the current definition of an employment contract is that it also includes the concept of a contract. This legislated the dominant concept in the science of Russian labor law, which considers the contract not as an ordinary fixed-term employment contract, but as a special type of employment contract.
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The concept and basic elements of civil legal relations. Characteristics of the structure of civil legal relations. Features of social relations related to the consideration of the grounds for the emergence, change and termination of civil legal relations.
An employment relationship is a legal relationship based on an agreement between an employee and an employer, according to which
to which one party (the employee) undertakes to personally perform a certain labor function (work in a certain specialty, qualification or position), subject to the internal labor regulations established by the employer, and the other party (the employer) undertakes to provide the employee with the work stipulated by the employment contract, to ensure proper working conditions for him , as well as pay the employee on time.
The elements of an employment legal relationship are its object, subjects (parties) and content, i.e., the subjective rights and obligations of the parties.
The object of the labor relationship is the labor function performed by the employee, paid for by the employer.
The subjects of the labor relationship are the employee and the employer. An employee is an individual who has entered into an employment relationship with an employer. Employer is an individual or legal entity (organization) that has entered into an employment relationship with an employee. In cases established by federal laws, another entity entitled to enter into employment contracts may act as an employer. Both citizens of the Russian Federation and foreign citizens, as well as stateless persons (stateless persons), can act as employees. On the employer's side, individuals or legal entities (organizations) participate in labor relations.
Subjective law is a measure of the possible behavior of a subject of law secured by law. Duty is a measure of the proper behavior of the subject of law. Subjective rights and obligations constitute the content of the legal relationship.
The basis for the emergence of labor relations are the norms contained in the sources of labor law and legal facts.
Legal facts are real life circumstances with which the norms of objective law connect the establishment, change or termination of subjective rights and obligations (legal relations).
The most common basis for the emergence of labor relations is an employment contract. But sometimes it is necessary to have some other facts, that is, a legal structure is required, the elements of which are an employment contract and other facts that serve as the basis for its conclusion. The following legal facts are included in the Labor Code of the Russian Federation: -
election(s) to a position; -
election by competition to fill the relevant position; -
appointment to a position or confirmation in a position; -
Referral to work by bodies authorized by law against the established quota (such quotas can be established for the employment of disabled people, as well as minor orphans and children without parental care); -
court decision on the conclusion of an employment contract.
Plan:
Introduction
Chapter 1. The concept of labor relations
1.1 Concept and features of the labor relationship
Chapter 2. Subjects of labor relations
2.1 Citizens (workers) as subjects of labor relations
2.2 Organization (employers) as subjects of labor relations
Chapter 3. Grounds for the emergence, change and termination of the employment relationship
Conclusion
Bibliography.
Introduction.
Today Russia is going through one of the most difficult periods in its history. In the process of transition to a market, many important problems arise, including problems of ownership, organizational and legal forms of entrepreneurship, investment, profit, taxes. But the market cannot exist without the labor market, and the market economy cannot exist without the use of this labor.
Relations arising in the sphere of labor require legal regulation. The level of development of society is largely determined by the effectiveness of legal regulation of social relations. The human right to work is a fundamental human right, and the state of legislation and the real state of affairs in the field of implementation of this right is not only an indicator of the civilization of a society, but also directly affects its morality and the efficiency of its economy.
From this we can conclude that the topic of this work, “labor relations,” is relevant at the present time. The need to consider this issue arises from the fact that labor relations during a market economy become more complex, appear in new forms and therefore require legal regulation.
When writing this work, the goal was to consider the labor relationship in all its aspects. Those. firstly, the very concept of the legal relationship and its features, secondly, the very concept of the labor legal relationship and its features, thirdly, the content of the labor legal relationship, which includes the rights and obligations of the participants in this relationship, fourthly, consideration of the subjects of the labor legal relationship, separately the employee, separately - the employer, and finally, the grounds for the emergence, changes and termination of labor relations.
The main objective of the study is to show the real state of labor law, labor legislation, and in particular in the field of regulation of labor relations. All the disadvantages, as well as the positive aspects.
To write the work, the comparative method, logical, historical and systematic methods of scientific knowledge were used. This contributed to the possibility of conveying the entire network of the issue more objectively. To combine the thoughts of many famous people, thoughts on this topic, and present them in this work.
The study was carried out on the basis of such famous authors as Alexandrov N.G. and Ginzburg L.Ya. Although the publication of their books dates back to 1948 and 1977, respectively, they are almost the only researchers in this field. Their theoretical conclusions on issues related to labor relations are not outdated today.
Also in the work were used the works of such authors as Betichev B.K. , Geykhman V.L. , as well as articles from the magazines “Man and Labor”, “State and Law”, etc., textbooks on labor law in Russia, on the theory of state and law, various authors and the code of labor laws.
Chapter 1. The concept of labor relations
1.1Concept and features of labor relations
“In order for one or another social relationship to take the form of a legal relationship, two conditions are required, first of all:
Firstly, it is necessary that this social attitude is expressed or can be expressed in acts of volitional behavior of people
Secondly, it is necessary that it be regulated by the will of the ruling class, elevated to law, i.e. rules of law » 1
“A legal norm, regulating social relations, thereby gives them the form of legal relations. Social relations, before they develop as legal relations, must pass through the consciousness and will of the politically dominant class, expressed in a legal norm. Specific legal relations arise, of course, not from norms, but from the vital needs of people, but the legal nature of such relations is determined by the current rules of law" 2
Even in his book Alexandrov N.G. draws attention to the connection of any legal relationship with the state “capable of both protecting authority and forcing the performance of duties.” 3 “A legal relationship is intersected by a legal relationship if the parties are deprived of the opportunity to resort to state protection in the event of a violation of their powers.” 4
1 Alexandrov N.G. “Labor relations” M. 1948, p. 73.
2 Alexandrov N.G. Decree. essay from 75
3 Alexandrov N.G. Decree. essay from 75
4 Alexandrov N.G. Decree. essay from 75
Now, in the period of a market economy, which is also unstable, state support, in the form of issuing regulations that strictly and definitely regulate all types of legal relations, is necessary for the further successful development of the state.
Any legal relationship is a connection between subjects of a social relationship regulated by law, which is expressed in the presence of subjective rights and obligations.
However, such a definition only reveals the essence of the legal relationship. To fully characterize any legal relationship it is necessary:
a) establish the basis for its occurrence, change and termination
b) determine its subjective composition
c) identify its content and structure
d) show what its object is
Certain types of legal relations are regulated by civil law. The branch of civil law is pond law, which in turn regulates pond relations; they are the subject of labor law.
When analyzing what the subject of labor law is, it is necessary to point out its characteristic features, these include:
Firstly, labor relations arising in connection with the direct activity of people in the labor process, the use of living labor and the creation of material and spiritual benefits.
Secondly, labor relations are characterized by the inclusion of the performer of the work in the work collective of a particular organization with the ensuing subordination to the internal labor regulations, which means a certain mode of work, proper organization and safe working conditions, and implementation of the established work measure.
Thirdly, labor relations are remunerative relations, i.e. workers who are participants in these relations have the right to receive wages for their work.
Fourthly, when participating in labor relations, the employee performs certain work using personal labor. This feature stems from the very nature of living labor. You cannot enter into an employment relationship using your ability to work through a representative.
“Based on these characteristics, we can characterize labor relations as social relations that develop when a citizen is included in the work collective of an organization to perform certain work with personal labor for remuneration (wages) subject to internal labor regulations.” 1
(1 “Russian Labor Law” - textbook by Prof. Zaykin A.D. M. 1997, p. 13)
Also, the indicated signs of the labor relationship make it possible to distinguish it from other estimated relationships in the field of application of labor. For example, arising on the basis of individual civil law contracts (contract, subordination). The purpose of the contract is to obtain a tangible result of the work. When concluding such an agreement, a specific task is determined for the contractor and the customer accordingly cannot demand from the contractor work that goes beyond the scope of the established task. In a contract agreement, the contractor independently organizes his work (at any time, at his own risk, using his own materials or materials provided by the customer, without establishing internal labor regulations in the customer’s organization, and without obeying the customer’s instructions if he interferes in business activities) .
A different situation arises when concluding an employment contract. Its object is living labor, performing work of a certain kind (in a specific specialty, Article 15 of the Labor Code), which is called the labor function, here the employer has the right to entrust the employee with any production task that does not go beyond the scope of the employee’s labor function. According to the employment contract, the employee is included in the staff of the organization (or individual entrepreneur) and is subject to the established internal labor regulations. On the basis of freedom of labor enshrined in the Constitution of the Russian Federation, the employee uses his personal ability to work (Part 1 of Article 37) voluntarily concluding an employment contract. At the same time, he is obliged to take personal part in the joint labor process, and his replacement is allowed only in exceptional cases provided for by law.
Labor relations arise on the basis of an employment contract and are regulated by labor law, in contrast to those arising from a civil contract of personal contract
relations regulated by civil law.
Labor relations occupy a central place in the subject of labor law, but on the basis of the use of joint (collective) labor, other social relations are formed that constitute the subject of labor law and are included in the scope of its regulation. These relations regarding employment and employment, relations regarding professional training directly in production, i.e. on apprenticeship, relations for advanced training directly in production, organizational and managerial relations, relations for supervision of compliance with labor legislation, relations for the consideration of labor disputes, procedural relations
“Labor relations (we are talking, of course, about social and labor relations),
since they are expressed in volitional relations and since they serve in a state-organizational class society as the direct subject of legal regulation, they take the form of a legal relationship.” 1
(1 Aleksandrov N.G. “Labor legal relationship” M. 1948, p. 81)
According to Alexandrov, the labor legal relationship has a material definition - “a legal relationship that mediates the social-labor relationship” 1, and a formal definition - “a form of expression of social-labor relations in labor relations” 2. The material definition of an employment relationship indicates its objective basis, the socio-economic content of the powers and obligations of the parties” 3
“Form in general is not just the outer shell of content. It serves as a means of organizing content and giving it a certain direction. The labor legal relationship is a form of social-labor relations that creates a state influence on these relations.” 4
“The material and formal definitions of the labor legal relationship characterize the same relationship from different sides. Only the combination of the signs of a material and formal definition gives the minimum necessary completeness to the concept of a labor relationship.” 5
1 Alexandrov N.G. “Labor relations” M. 1948, p. 91.
2 Alexandrov N.G. Decree. essay from 91
3 Alexandrov N.G. Decree. essay from 91
4 Alexandrov N.G. Decree. essay from 91
5 Alexandrov N.G. Decree. essay from 91
Labor relations regulated by labor law in real life act (exist) in the form of labor relations. Along with them, in the sphere of application and organization of labor, other legal relations arise that are considered as related to labor or derived from them.
According to N.G. Aleksandrov, the criteria for limiting an employment legal relationship from legal relationships closely related to them are the following:
a) “In the labor relationship, the worker is obliged not to perform any specific work, but to perform a certain type of work, i.e. to perform a certain labor function..." 1
b) “In an employment legal relationship, the worker is obliged to perform, at certain periods of time, the minimum amount of labor established for a given category of workers, which can be expressed either only in the norm of mandatory production, or in the mandatory length of the day, or in both measures at the same time...” 2
c) “In an employment relationship, an employee is usually obliged to distribute his work over time in accordance with the work schedule established in the enterprise...” 3
d) “In an employment relationship, the employee in the labor process itself must usually follow the technological instructions of the administration...” 4
1. Alexandrov N.G. “Labor relations” M. 1948, pp. 151-152.
2. Alexandrov N.G. Decree. essay from 152
3. Alexandrov N.G. Decree. essay from 152
4. Aleksandrov N.G. Decree. essay from 152
Criteria given by Alexandrov N.G. in his book “Labor Relations” published in 1948, are modern and relevant today. This is confirmed by the above comparison of an employment contract and a contract of order.
Labor and other legal relations are the result of the impact of labor law norms on the relations of subjects in the sphere of employment.
Labor law norms are capable of generating a legal connection between subjects, i.e. the legal relationship itself, if the subjects perform a legally significant volitional action, is a legal act that is the basis for the emergence of an employment legal relationship. The basis for the emergence of an employment relationship may be a legal act such as an employment contract concluded between an employee and an employer.
From here we can derive the definition of an employment relationship.
“First of all, this is a social-labor relationship arising on the basis of an ore contract and regulated by labor law. One subject here is the employee who undertakes to perform a labor function, subject to the rules of internal labor regulations, the other subject is the employer who provides the work, ensures health and safe working conditions and pays the employee in accordance with his qualifications, complexity of the work, quantity and quality of work.” . 1
1 “Russian labor law” textbook, prof. Zaykin A.D. M.1997
If we turn to the history of labor law, we will also find a definition of the legal relationship in Ginzburg’s book “Socialist Labor Relationship” published in 1947.
“This is a mandatory relationship between free and equal workers on the one hand and a socialist enterprise (institution, public organization) on the other hand.” 1
1 “Socialist labor relationship” Glatsburg L.L. M. 1977 from 82.
An organization or institution acting as a link in the socialist economy or state apparatus, i.e. the employer cannot be a private person (entrepreneur). This is the difference between modern legal relations and labor relations of the Soviet period. The main difference, in my opinion, and this is confirmed by V.I. Nikitsky in “The ABC of Labor Law” 1986, is that in Soviet times a person was obliged to work. There was, of course, the right to work, but it consisted of the right to choose a profession. And work was compulsory. The labor relationship is characterized by certain inherent characteristics.
In the conditions of collective work of workers in an organization (enterprise), various social relations arise, which are regulated by such social norms as traditions, customs, and moral standards. In contrast to these social relations, labor relations, regulated by the norms of labor law, represent a legal relationship for the use of the labor of a citizen as an employee. The latter is opposed by a legal entity - an organization, an individual entrepreneur, a citizen as an employer, using the labor of an employee. Thus, the subjects of labor law are the employee and the employer.
The next feature of labor relations is the complex composition of the rights and obligations of its subjects.
Firstly, each of the subjects acts in relation to the other both as an obligated and as an authorized person; in addition, each of them bears not only one, but several responsibilities to the other. And secondly, for some responsibilities the employer bears responsibility himself, while for others responsibility may arise from the manager (director, administration) acting on behalf of the employer as a management body. For some responsibilities, both of them can bear, but different ones. Thus, the employer becomes financially liable in connection with compensation for harm caused to the health of the employee, and the manager (director) may be brought to disciplinary or administrative liability due to an accident that occurred at work.
Based on the fact that the obligations of one subject of legal relations correspond (correspond) to the rights of another, and vice versa, it is obvious that labor legal relations are characterized by a complex of mutual rights and obligations. This feature is connected with another feature of labor relations: it covers the entire complex of mutual rights and obligations of subjects in inextricable unity, i.e. despite the complex composition of rights and obligations, it is a single legal relationship.
And finally, a feature of labor relations is its ongoing nature. In the labor legal relationship, the rights and obligations of subjects are realized not by a one-time action, but by a systematic or periodic way of performing those actions that are necessary during established working hours (working day, shift). The performance of a labor function by an employee, subject to compliance with internal labor regulations, after a certain time (2 weeks or 1 month) triggers a response from another entity. The employee has the right to receive payment for his work and the employer has the obligation to pay the appropriate wages. This does not mean the constant emergence of new types of legal relations, but indicates the ongoing nature of a single labor legal relationship and the constant implementation of the rights and obligations of its subjects. A characteristic feature of the labor legal relationship is also the right of each of the subjects to terminate this legal relationship, without any sanctions, in compliance with the established procedure. In this case, the employer is obliged to warn the employee about dismissal, on his initiative, in established cases and to pay severance pay in the manner prescribed by the labor law.
1. subjects of legal relations - persons and organizations with legal capacity and legal capacity
2. real benefits of a material or spiritual nature for the sake of possession, which the subject performs an act of legal expression of will
4. legal facts and legal structures as grounds for the emergence, change and termination of legal relations
5. various forms, means of obtaining the desired benefits
6. level of intellectual – emotional – volitional mastery of elements one way or another involved in a legal relationship, development of a behavior plan and readiness to implement it
7. performing actions within the framework of relations cultural - moral level of behavior of subjects
8. intellectual and emotional perception and assessment of both one’s own behavior and the behavior of the opposite party” 1
1 “Legal relations and their role in the implementation of law” scientific. ed. doc. legal sciences
Yu.S. Reshetov Kazan 1993 from 15-16
The content of the labor relationship represents the unity of its properties and connections. Participants in an employment relationship are bound by subjective rights and obligations, a certain combination of which reveals its legal content. It is also customary to define the material content of the labor legal relationship - this is the behavior itself, the activities of the subjects, the actions they perform. The social labor relationship acquires a legal form (becomes a labor legal relationship) after its participants have become subjects of the emerging legal relationship, endowed with subjective rights and responsibilities. “Thus, the interaction of participants in a social labor relationship is represented in a legal relationship as interconnectedness by subjective rules and responsibilities. When the right of one (employee) corresponds to the obligation of another (employer)” 1. For example, the employee’s right to health and safe conditions corresponds to the employer’s obligation to provide such conditions.
(1 “Russian Labor Law” - textbook by Prof. Zaikin A.D. M. 1997, p. 105)
And the employer’s right to demand that the employee comply with internal labor regulations is the employee’s responsibility to comply with them.
Labor legal relations develop as a result of the influence of labor law norms and therefore their participants are granted subjective rights and obligations.
“Subjective rights and obligations are determined by the needs and interests of subjects of law. These interests are a prerequisite for the acquisition and implementation of subjective rights. It is the need to satisfy their own interests that encourages subjects to perform actions related to the acquisition and implementation of subjective rights, and to demand that other subjects fulfill their duties. Subjective law and legal obligation have the goal of ensuring the satisfaction of the legitimate interests of subjects of law” 1. In this case, subjective rights are understood as the legally protected ability (legal measure) of an authorized person (one subject of the labor relationship) to demand from another - the obligated subject - the performance of certain actions. “The subjective legal obligation of a participant in an employment relationship is a legal measure of the proper behavior of the obligated person.” 2
1 “Theory of State Law” – textbook, Gerdantsev A.F. M. 1999 from 299-300
2 Zaikin A.D. – “Russian labor law” - M. 1997. from 105
Since labor relations always arise between specific persons on the basis of an agreement reached between them, this legal relationship can be defined as a form of expression of the specific rights and obligations of its participants. In this sense, the labor legal relationship outlines the framework within which the behavior of its participants can be realized. The labor legislation of the Russian Federation provides for the basic statutory rights and obligations of participants in the labor relationship.
In relation to the individual employee, these rights and obligations in accordance with the Constitution of the Russian Federation (Articles 30, 37) are enshrined in general form in Article 2 of the Labor Code of the Russian Federation. Subjective rights and obligations that make up the content of a separate employment relationship represent a specification and detail of the specified statutory rights and obligations.
The rights and obligations of the employer, unlike the employee, have not received such clear and special recognition in a specific article of the Labor Code or other federal law. Certain rights and obligations of the employer established in many articles of the Labor Code, federal laws, and local acts can be enshrined in the charters (regulations) of the organization.
Considering that the subjective right of one participant in the labor relationship corresponds to the obligation of another, we consider only the obligations of the subjects of the labor relationship.
The employee's responsibilities include:
1. performance of a certain labor function, which is stipulated with the employer when concluding an employment contract (Article 15 of the Labor Code). The certainty of the labor function is ensured in accordance with Article 24 of the Labor Code, where the administration of the organization does not have the right to require the employee to perform work not stipulated by the employment contract
2. compliance with labor discipline, submission to internal labor regulations, established working hours, use of equipment, instruments, raw materials, and other property of the employer in accordance with the stipulated provisions and rules, preservation of this property, compliance with instructions and rules on labor protection.
The main responsibilities of the employer (organization) can be grouped as follows:
a) Providing work for a conditional labor function and, accordingly, ensuring the actual employment of this employee as a performer of the labor function, as well as creating conditions that ensure its productive implementation
b) Ensuring healthy and safe working conditions provided for by the legislation on ore, a collective agreement or an agreement between the parties
c) Payment of wages taking into account the complexity of the work and the quality of the work in accordance with the amount stipulated by the agreement, as well as providing guarantee and compensation payments
d) Satisfying the social and everyday needs of the employee
Subjective rights and obligations that make up the content of the employment relationship, arising on the basis of a legal act - an employment contract, correspond to the terms of this contract. An employment contract plays a fundamental role in the legal regulation of labor relations. Like any other, it has its own content - these are the conditions on which the parties reached an agreement. These agreed terms of the employment contract correspond to the content of the employment relationship, its subjective rights and obligations. Thus, labor relations not only arise on the basis of an employment contract (legal act): this contract also determines its content.
However, the employment relationship and the employment contract are not equivalent. The terms of the contract are formulated in the process of concluding it by the parties on the basis of freedom and voluntariness of labor, but should not worsen the position of workers in comparison with the law (Part 1 of Article 5 of the Labor Code). The agreed terms, as it were, determine the scope of the content of the emerging employment relationship. Nevertheless, an employment contract cannot determine all its contents and all elements. A citizen on the one hand, and an organization (legal entity) or an individual entrepreneur on the other hand, when concluding an employment contract and acting as private individuals, they act on the basis of each other’s freedom of choice, the freedom to conclude an employment contract and the freedom to determine its conditions (content).
“At the same time, private individuals cannot fully realize through the legal form of labor the public legal element of the labor relationship. This public legal element consists in establishing a normative minimum standard of employee labor rights and guarantees, the deterioration of which in an employment contract leads to the invalidity of its individual conditions or the contract as a whole.” 1
Hence the conclusion that the labor relationship, the content of which is determined by the terms of the employment contract, carries an independent essence. Independence is manifested in “the legislative establishment at a minimum level of labor rights and guarantees, which imperatively predetermine a number of conditions of the employment contract.” 2
1 Zaykin A.D. “Russian labor law” - M. 1997. from 107
2 Zaikin A.D. “Russian labor law” - M. 1997. from 107
When concluding an employment contract, the parties do not have the right to reduce the specified level of labor rights and guarantees, nor can they exclude or replace them.
This is one of the features of labor law, which indicates its social orientation and allows us to characterize the branch of labor law in the Russian legal system as social law.
It should also be noted that the very existence of the employment relationship is based on the disciplinary and directorial power of the employer. The employee’s subordination is imperatively “built-in” into the content of the employment relationship, not allowing these individuals to exclude it or replace it with another condition when concluding an employment contract.
The employee’s obligation to perform a labor function in compliance with internal labor regulations is provided for by the Labor Code of the Russian Federation.
This reveals one of the differences between an employment contract and civil contracts, the parties to which are autonomous, equal and free to such an extent that they can choose not only each other, but also another type of contract that suits them more, meets their interests, or may resort to mixed
civil law contract. In this case, the law is not violated, and the contract establishes its essential terms, as required by the Civil Code of the Russian Federation.
A similar situation is not possible, as is known, when concluding an employment contract.
In labor law, the employment contract occupies a central place. Its importance increases immeasurably in the modern conditions of the formation of the labor market (labor force)
Chapter 2. Subjects of labor relations
2.1. Citizen (employee) as a subject of labor relations .
It is well known that a subject of law is a person recognized by law as capable of entering into a legal relationship and acquiring rights and obligations.
“We know from history that not all people in the past were recognized as subjects of law, for example, slaves, who could only be objects of rights. In Roman law, a slave was considered a speaking instrument, an object, a thing. However, there was no equality among the free. Under feudalism, serfs were also not full citizens, and therefore, not full subjects of law. Their rights were significantly limited. Feudal law was the right of privilege; it clearly gradated people depending on social origin, rank, class, etc.
In modern civilized countries these discriminations have been eliminated. The International Covenant on Civil and Political Rights (1966) states: “every person, wherever he may be, has the right to recognition of his right to subjectivity (Article 16).” This provision is also enshrined in the Universal Declaration of Human Rights of 1948 (Article 61).” 1
1 Matuzov N.I., Malko A.V. – “Theory of State and Law” – textbook M.2000 p.517
“Legal capacity is a continuing relationship between a person and the state, a relationship that determines the person’s position in his relationships with other persons. It means the potential opportunity for its owner, in the presence of legal norms and circumstances (legal facts) provided for by the hypotheses, to demand certain behavior from other persons.” 1
1 Alexandrov N.G. “Labor relations” M. 1948 p. 164
2 Alexandrov N.G. Decree. op. from 165
The unity of legal capacity and legal capacity is determined by the concept of “labor legal capacity” or “labor legal personality”.
Thus, labor legal personality is the single ability of an individual to be the subject of a labor legal relationship.
Unlike civil legal personality, which arises from the moment of birth, labor legal personality is limited by law to reaching a certain age, namely 15 years. The age criterion of labor legal personality is associated with the fact that from this time a person becomes capable of systematic work, which is enshrined in the law. Based on the physiological characteristics that are characteristic of a teenager’s body, persons under 18 years of age are prohibited from working in harmful and dangerous conditions, benefits are established for them in the field of labor protection, and in labor relations they are treated as adult workers.
“Along with age, labor legal personality is characterized by a volitional criterion associated with a person’s actual ability to work (work capacity).” 1
1 “Russian labor law” - textbook M. 1997 prof. Zaykin A.D. from 86
Typically, ability to work is considered as physical and mental ability to work, which, however, cannot limit equal legal personality for everyone.
Citizens have equal labor legal personality; according to the Constitution of the Russian Federation, they are free to exercise labor rights and must be free from discrimination in the field of labor. Labor legislation prohibits any direct or indirect restriction or established direct or indirect advantages in hiring depending on gender, race, nationality, language, social origin, property status, place of residence, attitude to religion, beliefs, and as well as other circumstances not related to the business qualities of employees (Part 2, Article 16 of the Labor Code).
Labor legal personality may be limited by a court verdict that has entered into legal force, establishing as a penalty the deprivation of the right to hold certain positions or engage in certain activities.
Limitations of labor legal personality may occur in relation to foreign citizens and stateless persons on the basis of the law. The Constitution of the Russian Federation provides for the right only for citizens of the Russian Federation to take part in the management of state affairs (Article 32), the right to participate in the administration of justice (Article 119).
According to these norms and in accordance with the Federal Laws: “On the Fundamentals of the Civil Service of the Russian Federation”, “On the Prosecutor’s Office of the Russian Federation”, “On the Police”, and other legislative acts, the access of foreign citizens and stateless persons to fill government positions in the civil service, etc. .d.
When exercising labor legal personality, the specific capabilities of an individual to fill positions or perform work of a higher category of complexity are also taken into account. In such cases, the person must have special training and qualifications, confirmed by special diplomas, certificates, and other documents indicating his ability to perform this or that type of work.
In addition to legal capacity and capacity, an individual is also characterized by legal status. “The concept of legal capacity... in the theory of state and law may correspond to the concept of legal status, expressing the individual’s relationship to the state.” 1
1 Alexandrov “Labor legal relationship” M. 1948. from 165
This means the totality of the rights, freedoms and obligations of an individual, secured by the norms of all branches of Russian law (constitutional, civil, labor, etc.)
The legal status of an individual in the sphere of relations regulated by labor law norms is determined by the fundamental rights, freedoms and responsibilities enshrined in the Constitution of the Russian Federation (Article 37), the Labor Code of the Russian Federation (Article 2), and other regulations. The totality of these fundamental rights, freedoms and responsibilities, along with labor legal personality, constitute the content of sectoral legal status, also called “labor status”.
Indication of rights and obligations, unlike others, is usually called “statutory”: they receive their development and detail in the subjective rights and obligations that constitute the content of specific labor legal relations with the emergence of an labor legal relationship, the legal status of an individual, as it were, merges with the legal status of the subject of this legal relationship - employee.
“The terms employee and employer are among the concepts requiring legislative definition. The Labor Code uses the term employee, but there is no initial basis that designates him as a participant in the employment contract and the relations arising on its basis.”
“An employee is a person who has an employment relationship with the employer on the basis of a concluded employment contract and directly performs a labor function.”
“Only the employee has a labor relationship with the employer on the basis of a concluded employment contract, which determines his labor function. Then, the fulfillment of the latter is carried out by him directly and in the conditions of a joint labor process, which requires the subordination of employees to internal labor functions and subordination to the internal labor regulations means the inclusion of a citizen in the workforce of a given organization and turning him into an employee.
All these features constitute the characteristic features of a citizen’s work as an employee.” Insufficient development of the concept of employee as an independent legal category leads to the fact that only persons of the so-called hired labor are often classified as employees as subjects of the labor legal relationship. At that time, those working in various business partnerships and societies - persons associated with these organizations through relations of participation or membership - are excluded from the number of employees. This, in turn, allows us to conclude that they are subject to labor law. This is completely unfounded. In Art. 1 of the Labor Code establishes that labor legislation regulates the labor relations of all workers, regardless of the scope of their labor. The separation of these persons from the total number of workers is explained by fundamental changes in property ownership and the development of a mixed economy. These changes laid the foundation for the emergence in the Russian Federation of a new and rather unique subject of labor - an employee of an organization, simultaneously associated with this organization by participation or membership.
“Wage labor” differs from independent labor, in which an individual producer is both the owner of the means and tools of labor and the organizer of production and, having labor power, disposes of it. The different nature of the wage labor of a citizen (worker) is based on the fact that he has labor power, but does not own the means and tools of labor, and therefore is deprived of the role of organizer of production.
The main economic characteristics of hired labor are:
1. Carrying out work under an employment contract with the employer (employer), subject to the workers representing exclusively their own labor force, namely:
a) non-use by the employee, in turn, of hired labor
b) the use of tools, means, labor, raw materials, materials, etc., belonging to the employer. In the labor relationship, the employer is obligated to provide compensation to the employee if the latter uses his own items or means of labor.
c) provided that the employee derives income from work solely from his own strength, which stipulates that the employee is paid according to the work he performs for the actual working time worked
2. The work, no matter how short-term it may be, must be performed by an employee in a certain specialty, qualification or position for a separate employer (employer)
“So, the employee enters into an employment relationship arising on the basis of an employment contract in connection with the use of his abilities in work, and the employer uses someone else’s labor, that is, the employee’s ability to work, paying for his work. At the same time, the employee must personally perform the labor function under the direction of the employer, observing the established internal regulations, and the employer is obliged to pay for labor and create favorable working conditions for the employee, providing him with objects and means of labor.” 1
1 Zaykin A.D. “Russian labor law” M. 1997. from 91
Based on this, we can assume that hired workers are hired workers. This would have to limit them to those who are associated with a legal entity through a relationship of membership or participation and work in this organization.
It is necessary to pay attention to the fact that labor society reveals the dependence of the employee on the employer, who has disciplinary and directorial power, although not over the personality of the employee, but over the way he performs the work. Therefore, the employee performs the labor function stipulated by the employment contract, under the guidance and control of the employer. Payment for work performed by an employee by the employer also indicates a certain economic dependence of the employee on the employer.
All this does not allow us to consider persons associated with the organization not only by membership or participation, but also by performing a labor function, as completely free, like a contractor or executor of a contract for the provision of services (independent work). On the contrary, it must be recognized that their relations in the sphere of labor are labor relations regulated by labor law, and they themselves are workers. For all persons performing a labor function stipulated by the employment contract on the basis of which they entered into an employment relationship, that is, for workers, the ratio of the Labor Code of the Russian Federation remains unshakable in the regulation of their labor. The terms of labor contracts, the worsening of the situation of workers in comparison with labor legislation, are invalid (Part 1, Article 5 of the Labor Code). It does not matter where the employee works, in an organization, a legal entity of any organizational and legal form, or an individual entrepreneur, and whether he is connected with this organization at the same time through participation in it. All employees are guaranteed the minimum level of their labor rights and social obligations established by law. This level cannot be reduced by any labor contracts. Otherwise, the terms of such contracts will be invalid as they worsen the position of workers in comparison with the labor law. It is obvious that the norm of the current legislation of the Russian Federation does not provide grounds for any division of workers into hired and others. The Labor Code regulates the labor relations of all employees. Since there is no legal basis for identifying employees, it seems advisable to follow the legislator’s lead in using the single term employees.
2.2 Organization (employers) as subjects of labor relations
Another subject of the labor relationship is the employer. To identify an employer, the economic criterion is first used. It allows you to clarify whether a given person (individual or legal entity) is involved as an entrepreneur, that is, whether the determining factors of his production and activity are the systematic receipt of profit, investments, risk, danger of losses, etc., as well as the use of employee labor - all this is evidence that the entrepreneur acts as an employer.
From the position of workers, any organization as a legal entity (regardless of its organizational and legal form) and individual entrepreneur are of interest in the case when they are able to satisfy the offers of workers in the labor market (labor force). These organizations and individual entrepreneurs act as employers if, experiencing demand for labor, they have and open new jobs for which they hire workers.
Unlike civil law, the organizational and legal form of legal entities or the participation of the employer of an individual entrepreneur does not play a significant role in the regulation of labor relations. Citizens as potential workers in the labor market are interested in the employer's legal capacity of future employers related to the provision of work to citizens, payment and labor protection.
Consequently, any organization can act as an employer - a legal entity that is considered created from the moment of its state registration. From the same moment, the organization - a legal entity acquires labor legal capacity (labor legal personality) and can act as an employer in labor relations with employees.
“The legal capacity of a legal entity is limited, first of all, by the fact that it can be the subject only of those legal relations that are protected by civil and property sanctions.” 1
“The employer legal capacity of legal entities lies in the recognition by the state of the opportunity to provide citizens with guaranteed work, to allow them to apply their labor force to the means of production included in the separate property complex of this legal entity for remuneration paid from the specified set.” 2
1 Alexandrov N.G. “Labor legal relationship” M.1948 p.202
2 Alexandrov N.G. Decree op. p.203
Along with a legal entity, an individual can also act as an employer as a subject of an employment relationship. This is a citizen who, from the moment of state registration of individual entrepreneurs, is engaged in entrepreneurial activities without creating a legal entity. In some cases, an individual citizen may act as an employer, inviting a citizen to work as a housekeeper, gardener, etc. only for the use of their labor in the interests of personal farming without making a profit. The labor legal capacity of a legal entity, in contrast to the labor legal personality of a citizen (individual), is special. In terms of its content, the labor legal capacity of an organization must correspond to the goals and objectives of its activities defined in its charter. Typically, working capacity is determined by two criteria: operational (organizational) and property.
The operational criterion characterizes the organization’s ability to hire and fire workers, organize their work, create all necessary working conditions, provide social protection measures, and respect the employee’s labor rights. The property criterion determines the ability to manage funds (wage background, other relevant funds), pay the employee for their work, give them bonuses, and provide other benefits related to material support.
An organization (legal entity) that has the legal capacity to work enters into an employment contract and enters into a labor relationship as an employer with those citizens that the organization needs to fulfill its statutory tasks. This employer legal capacity is also inherent in some organizations (branches and representative offices) that do not have the formal legal capacity of a legal entity in the civil legal sense. They had the right to act on the basis of approved provisions, had a separate wage fund, a bank account, an independent balance sheet, and entered into labor relations with citizens (employees) on their own behalf as an employer. Such organizations are usually called "actual legal entities."
Chapter 3. Grounds for change or termination of employment
legal relations
The emergence of the labor relationship is described by Ginzburg in his book “Socialist Labor Relationship.” True, in the definition there is such a concept as socialist, but this does not change the essence of the very emergence of the legal relationship.
“The emergence of a socialist labor relationship is due to the will of the parties: the employee and the entrepreneur, the coincidence of two expressions of will: the employee expresses the desire to work as part of a given team, the enterprise perceives this desire.” 1
“The basis for the emergence of legal relations are a type of so-called legal facts. Legal facts generally mean all the circumstances with which the current law connects either the emergence, change, or termination of legal relations.” 2
“An administrative act, together with civil legal transactions, forms the concept of a legal act in the sense of lawful expressions of will made in order to establish, change or terminate certain legal relations.” 3
1. Ginzburg L.Ya. “Socialist labor relations” M. 1977 p. 44
2. Alexandrov N.G. “Labor legal relationship” M. 1948. With. 219
3. Alexandrov N.G. Decree. op. With. 229
For the emergence, change and termination of labor relations, the corresponding legal fact must occur in accordance with the rules of law.
“In their relation to the will of people, legal facts are divided into events and actions” 1
1 Theory of State and Law - textbook by M.N. Marchenko M. 1997 from 397 – 398
Events are phenomena that do not depend on the will of man, i.e. natural disaster, birth, reaching a certain age, death of a person, etc. They can have legal significance only to the extent that they influence social relations. Events become the basis for lawful actions.
An event, as a phenomenon independent of human will, is opposed to all types of human actions, as expressions of human will.
Actions are classified into legal and illegal based on the attitude of legal norms to them.
Legal facts that entail the emergence of labor relations are called the basis for their occurrence.
The peculiarity of these facts is that events, offenses, or a single administrative act cannot serve as such. These facts represent legal actions (the will of the employee and the manager acting on behalf of the employer) performed in order to establish labor relations.
Since they are precisely the legitimate expressions of the will of people, they are called legal acts.
Also Geykhman V.A. in his work in 1974. wrote that predominantly labor relations arise on the basis of an employment contract. Although it is stipulated that for certain categories of workers a single legal act of an employment contract is not enough. An employment contract is presented as an agreed expression of will, on the one hand, of a citizen who wants to get a job at a given enterprise (institution, organization) and, on the other hand, of this enterprise. Along with the employment contract, which occupies a leading place in the grounds for the emergence of labor relations, complex legal factual structures occupy a certain place.
For example, a competition and an employment contract, an employment contract and an administrative act, appointment to a position, etc.
“When disclosing the essence of the competition, one should proceed from the fact that this is not a separate legal act, but a set of legal acts (announcement of a competition, submission of applications by applicants for a position, election by the council, approval of the council’s decision).” 1
1 Zaykin A.D. “Russian Labor Law” M. 1997
For the necessary legal consequences to arise during the competition process, it is required. So that all legal acts are carried out consistently, in the order determined by the relevant rules of law. The competition is characterized by competitiveness and the right to select the best employee from among applicants to the board of the institution, i.e. a collegial body that is not a party to the labor relationship. Only after the act of election by the council and approval of the results of the competition by the administration, an employment contract can be concluded with the elected person. Consequently, election by competition and approval of its results are mandatory legal acts preceding the conclusion of an employment contract.
The existence of this composition is due to the specific nature of the work of certain categories of workers, the particular complexity of their work, and the increased responsibility for their implementation.
The extraordinary nature of such work activity represents a fairly high level of requirements for individuals to fill the corresponding positions and necessitates the establishment of a special procedure for the selection of highly qualified personnel. During a competition, the following procedure is observed: with a person elected by competition (for example, at a university) by the academic council, the head on behalf of the university enters into an employment contract, provided that the head previously issued a corresponding management act (order) approving the decision of the council and on the competitive election of the person .
In this case, the specified composition includes legal acts characteristic of different branches of law and performed in the following sequence:
1. competition completed by the decision of the relevant council
2. order of the manager to approve the decision of the scientist, which is given legal force, an act of management
3. conclusion of an employment contract with a person selected through a competition, a bilateral legal act - agreement
Labor relations through competition arise primarily for workers in scientific, pedagogical and artistic and creative work.
Although, to fill some public positions in the civil service, competitive selection has been established (federal law “On the Fundamentals of the Civil Service of the Russian Federation”, Regulations on the holding of a competition for filling a vacant public position). Admission to these positions is preceded by a competition carried out by the relevant competition commission (state commission), by decision of which an employment contract is concluded with the person selected by competition.
Unlike a competition, when choosing a position, a candidate is nominated by groups or teams of people, and they also choose a person for the corresponding position. And the powers of the selected person are established for a certain period. In this case, the candidate’s consent to run precedes the election to the position itself. For example, the rector of a university is elected for a term of up to 5 years by secret ballot at a general meeting in the manner established by the charter of the university (act of election). Then the person elected to the position of rector of the university is approved in the position of the relevant governing body in whose vision this higher education institution is located (an act of approval); in the case of a reasoned refusal to approve the candidate elected to the position of rector, new elections are held. Moreover, if there are less than two-thirds of the votes from the total number of conference participants, it must be approved (Federal Law “On Higher and Postgraduate Professional Education”)
Consequently, in this complex legal factual composition there are juxtaposed such legal acts as elections to a position and approval of the position by a higher governing body, as well as the mandatory, previously obtained consent of the candidate to fill the corresponding position in the elections, that is, an act expressing the will of the candidate himself for job title. Geykhman correctly noted “that the lack of consent to occupy an elective position makes the act of election pointless, due to which it does not give rise to a labor legal relationship.” Distinctive features of this base are:
1. the right to nominate a candidate for an elective position belongs to groups or teams of people, and not to the candidates themselves on the basis of self-nomination
2. these groups participate in the election of a candidate for a position without being subjects of labor relations
3. the election of a candidate for a position in cases established by law requires the approval of a higher management body
4. the powers of the elected candidate are limited to the period for which he was elected, usually for five years
5. preliminary and free consent to fill a position by election means that the candidate expresses consent to all working conditions fixed in legal norms. However, in cases established by current legislation, constituent documents, local legal acts, an employment contract is concluded between a person elected to a position and an appropriately designated official or body, as, for example, when electing a director or members of the board of a joint stock company
6. upon the expiration of the election period and the end of the powers of this person, the employment relationship with him is terminated
Another basis for the emergence of labor relations is appointment to a position. Here, the complex legal structure includes an employment contract and an act of appointment (approval) to the position. Geykhman noted that “the act of appointment has its own characteristics” 1 Firstly, the act of appointment is “an act without which an employment relationship cannot arise” 2, secondly “the filling of the corresponding position in the order of appointment depends, as a rule, on bodies or persons who are not parties to the emerging labor relationship” 3. The decision of a higher authority on appointment to a position is based on the voluntary expression of the will of the citizen.
“An employment contract as a bilateral legal act plays a very important role in the mechanism of legal regulation; it transfers the norms of labor law to subjects and gives rise to labor relations.” 4
1 Soviet state and law - 19973. No. 5 p. 109
2 Specified edition p. 109
3 Specified edition p. 109
4 Specified edition p. 110
The Labor Code stipulates the general conditions inherent in all employment contracts. However, employment contracts differ in terms of validity, content, procedure for conclusion, etc. According to the validity period, employment contracts can be divided into those concluded for a certain period, concluded for a certain period of no more than 5 years, concluded for the duration of a certain work (Article 17 of the Labor Code). Fixed-term employment contracts are concluded during organizational recruitment, for work in the regions of the Far North and areas equivalent to them.
An employment contract for the duration of certain work is also limited by the time it is valid, but not by any specific period, but by the nature and time of the work.
A special type of employment contract is a contract. It is concluded with special categories of workers, these include heads of enterprises: professors, teachers and researchers of universities and research institutes, secondary school teachers, television and radio broadcasting specialists, coaches and other specialists of sports clubs and societies, and some others.
The contract may include any contractual terms that do not worsen the employee’s position in comparison with the conditions provided for by law (Article 5 of the Labor Code).
Employment contracts are concluded with the organized recruitment of workers. Organized recruitment is the recruitment of personnel through specialized bodies that carry out labor intermediation between citizens who want to get a new job and enterprises in need of personnel. The bodies are employment services.
An employment contract for organized recruitment with a citizen is concluded by employment services by proxy of employers on their behalf. However, the parties to the employment contract are the citizen and the enterprise where he goes to work. An employment contract for work in the organizational recruitment procedure is concluded for a certain period: for seasonal work - for the duration of the season, at enterprises in the Far East and the Far North up to three years. The basis for concluding an employment contract is the worker’s statements and a certificate - an obligation of the enterprise, which contains a brief production and economic characteristics of the enterprise.
Employment contracts concluded for part-time work. “Part-time work is the simultaneous occupation of an employee in addition to the main paid position at an enterprise, in an institution, as well as the performance, in addition to the main one, of other regularly paid work under an employment contract in free time from the main job.” 1
1 Zaykin A.D. “Russian Labor Law” M. 1997 p. 176
Consequently, part-time workers enter into two employment contracts: one for their main place of work, the second for their combined work. To conclude a part-time employment contract, a citizen is required to provide a certificate of his main place of work.
Employment contracts concluded with homeworkers.
“For the efficient and fuller use of labor resources, the involvement of the working population in social production, labor legislation allows the conclusion of employment contracts with citizens to perform work at home.” 1
1 Zaykin A.D. “Russian labor law” M. 1997 p. 178
The specifics of the working conditions of this category of worker are established by the regulations on the working conditions of homeworkers, approved by the resolution of the USSR State Labor Committee and the Secretariat of the All-Union Central Council of Trade Unions of September 29, 1981, as well as by industry instructions on the working conditions of homeworkers, approved by ministries and departments. An employment contract for work from home is concluded in writing, setting out all the basic and additional conditions defining the mutual rights and obligations of the parties.
Considering the emergence of labor relations among persons working for citizens at home under contracts. In April 1987, the USSR State Committee for Labor and Social Affairs and the secretariat of the All-Union Central Council of Trade Unions adopted a resolution that approved the Regulations on the working conditions of persons working for citizens under contracts. These legal documents allow the use of the labor of individual citizens from other persons in the household (domestic workers) to provide them with technical assistance in literary and other creative activities, and other types of services. Such labor relations are established on the basis of a written contract, which is concluded by the parties either for an indefinite period or for a specific period of no more than 5 years, or for the duration of certain work.
It should be noted that domestic workers are not covered by the self-employment law. However, they are fully subject to labor law norms with the specifics provided for in the Regulations.
In particular, as a rule, employment contracts are concluded for an indefinite period, when the moment of their termination is not established in advance.
Contracts concluded for a certain period (up to 5 years) and for the duration of certain work are called fixed-term contracts. Their peculiarity is that they can be concluded for any precisely defined and agreed upon period of no more than 5 years.
The contract is not concluded if the work is short-term (up to ten days in total within 1 month).
As a rule, it is not allowed for a citizen to conclude an employment contract with persons who are closely related to him (parents, spouses, brothers, sisters, sons, daughters, as well as brothers, sisters, parents and children of spouses)
An employment contract between a citizen can be terminated at the initiative of each party with a warning in the manner prescribed by law.
The parties also, by mutual agreement, regulate the working time and rest time of the person working under the contract. At the same time, the duration of working hours should not exceed the average number of normal working hours (40 hours per week). Specifically, rest days are stipulated by the parties in the contract. A domestic worker also has the right to annual paid leave. Remuneration for domestic workers is made in amounts determined by agreement of the parties, based on tariff rates (salaries) applied at enterprises in the field of consumer services.
If disputes arise regarding the execution of the contract, they are subject to consideration in court. Cases regarding recognition of a contract as invalid if it was concluded, for example, without the intention of fulfilling the obligations stipulated in it, are considered in the same manner.
Legal acts that form the basis for changes in labor relations are usually bilateral acts. Changing the employee’s labor function is one of the important conditions of the employment contract, i.e. transfer to another job requires the consent of the employee if the initiative is taken by the manager (employer). The employee's consent must be expressed in writing. On the initiative shown by the employee, the consent of the manager is required, except for some cases when the manager is obliged to transfer the employee at his request (Articles 155, 164 of the Labor Code)
An exception is the transfer of an employee without his consent at the initiative of the employer: this is possible only in case of production necessity and due to downtime.
The current legislation provides that the grounds for termination of labor relations are both the agreement of the parties and the unilateral expression of the will of each of them. In some cases, the basis for termination of labor relations may be an expression of the will (act) of a body that is not a party to the labor relationship. The conscription or entry of an employee into military service is also considered the basis for termination of an employment relationship. Since the employment relationship is personal in nature, it naturally terminates in connection with the death of the employee, or his recognition as deceased in the established manner.
Russian labor legislation on the termination of an employment relationship is aimed at protecting the right to work of workers and creating relatively stable labor relations, as well as combating such illegal negative manifestations as ridding employers of unwanted workers.
Current labor legislation uses three terms:
1. termination of the employment contract
2. termination of the employment contract
3. dismissal
The term termination of an employment contract is the broadest concept. It covers all major terminations of labor relations, as well as such grounds as an event, such as the death of an employee, in connection with which he is excluded from the list of employees of this organization.
The term termination includes the grounds for termination of labor relations at the initiative of the parties to the employment contract, as well as the relevant trade union bodies.
Depending on which party to the employment relationship took the initiative, the following may serve as grounds for termination of the employment relationship:
1. agreement (mutual expression of will) of its parties
2. termination of an employment contract at the initiative of the employee
3. termination of an employment contract at the initiative of the employer
4. expression of the will (act) of a body that is not a party to the labor relationship, namely: conscription or enlistment of an employee for military service, a court ruling against an employee that has entered into legal force, a requirement of a trade union body in relation to some senior employees of the organization.
The group of grounds for termination of an employment contract on the joint initiative of the parties includes the following grounds.
Firstly, an agreement between the parties to terminate the employment contract (Article 29 of the Labor Code). Such an agreement can be reached by the parties to an employment contract, either concluded for an indefinite period or for a specific job.
Secondly, the parties, by mutual expression of will, enter into an employment contract for a certain period or for the duration of certain work, thereby, on the basis of the agreement, they determine the time of termination of this contract.
The basis for termination of the employment relationship between a citizen and the employment service body is the act of hiring a citizen, i.e. conclusion of an employment contract with him by the employer.
Such a basis for termination of a contract as the expiration of the contract, if it was concluded for a period or for the duration of certain work, is enshrined in Art. 29 of the Labor Code, but it does not operate automatically. The contract is usually terminated at the initiative of the employee or employer.
The basis for termination of the employment relationship at the initiative of the employee is the latter’s own desire (expression of will). The reason may be enrollment in an educational institution, retirement, etc.
In this case, the employment contract is terminated, which in turn is terminated depending on the period for which it was concluded.
The list of grounds on which an employer can terminate legal relations with an employee is limited by law. The grounds included in this list are called general and can be defined as a general list of grounds for dismissal for all employees, regardless of place of work, job function, or field of activity of the organization where they work. For these reasons, an employment contract can be terminated, either concluded for a certain period or a fixed-term employment contract before its expiration.
This general list includes grounds that are associated in some cases with organizational and production circumstances, in other cases with the personality of the employee, and thirdly with the guilty actions of the employee, or the reinstatement of the employee who previously performed this work.
The presence of one of these grounds gives the right, but is not mandatory, to terminate the employment contract.
For some categories of employees, under certain conditions, in addition to the general ones, additional grounds for termination of an employment contract are established. They differ in the following features: they are terminated for certain categories of employees, and are applied only in certain cases provided for by law.
Conclusion.
As is known, the first attempts to regulate social relations in the sphere of labor were made in the 19th century, during the era of industrial revolutions. Society and the state of that time came to understand the need to protect wage earners from excessive exploitation. Then the first regulations arose regulating the issues of working hours, rest time, remuneration, labor protection, and social security.
Now, at the beginning of the 21st century, with the emergence of new relations in the sphere of labor, as well as with the emergence of new forms of ownership, where the owner is an individual, there has come a need to reconsider the regulation of labor relations. The main normative act on labor, the Labor Code, according to many authors, is outdated. And indeed, many of its articles are excluded or are morally incapable of regulating labor relations. And there is a growing need for the adoption of a new labor code of the Russian Federation, which, in accordance with the Constitution, would consolidate and specify the system of labor rights and freedoms, establish state guarantees for their observance and protection, regulating the relations between workers and employers arising in connection with the conclusion and implementation of labor contracts, collective contracts and agreements.
Not a single regulatory act, nor the Labor Code, sufficiently defines the concepts of employee and employer. The Labor Code uses the term employee, but there is no initial basis that would designate him as a participant in the employment contract and the relations arising on its basis.
The main task of the Government of the Russian Federation, according to many researchers, as one of the legislators in the field of labor and labor relations, is to create economic and social conditions for a significant increase in labor productivity, labor activity, the development of entrepreneurship and business initiative, as well as the introduction of reliable compliance mechanisms enterprises of all forms of ownership of legal guarantees provided to employees, including full and timely payment of labor, social insurance, security, working conditions and regime.
For this purpose, the Government of the Russian Federation is submitting a draft of a new Labor Code to the State Duma. Such a draft was introduced in February 1999, but has not yet been adopted.
The draft, along with others, defines the parties to the labor relationship, the rights and obligations of the employee and the employer.
Summarizing this work, we can draw some conclusions.
The first attempts to regulate social relations in the sphere of labor were made in the 19th century, during the era of industrial revolutions. Society and the state of that time came to understand the need to protect wage earners from excessive exploitation. Then the first regulations arose regulating the issues of working hours, rest time, remuneration, labor protection, and social security.
Now, at the beginning of the 21st century, with the emergence of new relations in the sphere of labor, there has come a need to reconsider the regulation of labor relations.
The main normative act on labor, the Labor Code, according to many authors, is outdated. And indeed many of his articles were excluded. And there is a growing need to adopt a new Labor Code of the Russian Federation, which, in accordance with the Constitution, would consolidate and specify the system of labor rights and freedoms, establish state guarantees for their observance and protection, regulate relations between employees and employers arising in connection with the conclusion and implementation of labor contracts and collective agreements and agreements.
Neither the normative act nor the Labor Code defines sufficiently the concepts of employee and employer, but there is no initial basis that would designate him as a party to the employment contract and the relations arising on its basis.
The main task of the Government, according to many researchers in the field of labor and labor relations, is to create economic and social conditions for a significant increase in labor productivity, labor activity, development of entrepreneurship and business initiative, as well as the introduction of reliable mechanisms for compliance by enterprises of all forms of ownership with the legal guarantees provided employee, including timely and full payment, social insurance, security, working conditions and regime.
Grounds for the emergence, termination and change of the employment relationship. And all these aspects correspond to modern conditions.
It follows that the adoption of a new Labor Code is necessary not only to reflect in it all the changes that are taking place in labor relations as well, but also to prevent violations in this industry that are not long in coming.
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