Labor relations and their types. Signs of labor relations
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, which appears in the legal relationship, its legal content as interconnectedness with subjective rights and legal obligations.
Thus, the interaction of participants in a social labor relationship manifests itself 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). For example, the employee’s right to health and safe working conditions corresponds to the employer’s obligation to provide such conditions, and the employer’s right to demand that the employee comply with internal labor regulations corresponds to the employee’s obligation to comply with them (submission to internal labor regulations). Let us recall that the labor relationship consists of a whole complex of labor rights and obligations, i.e. is a complex but unified legal relationship and is of a continuing nature. Accordingly, its subjects constantly (systematically) exercise their subjective rights and fulfill their responsibilities.
In this case, subjective right is understood as the legally protected ability (legal measure of freedom) 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 obligation of a participant in an employment relationship is a legal measure of the proper behavior of the obligated person, in other words, the subjective obligation consists of proper behavior corresponding to subjective law.
Since an employment legal relationship always arises between specific persons on the basis of an agreement reached between them (employment contract), 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 Code provides for the basic (statutory) rights and obligations of participants in the labor relationship. In relation to the personality of the employee, these rights and obligations in accordance with the Constitution of the Russian Federation (Article 37, etc.) are enshrined in general form in the Labor Code as the basic (statutory) rights and obligations of the employee (Article 21) and as the basic (statutory) rights and obligations employer (Article 22 of the Labor Code).
When entering into an employment relationship, the employee and the employer, as its subjects, have subjective rights and obligations that constitute the content of this employment relationship, representing a specification and detail of these basic (statutory) rights and obligations.
Thus, in an employment legal relationship, its content consists of subjective rights and legal obligations that its participants acquire with the emergence of this legal relationship on the basis of an employment contract concluded between them. Since the labor legal relationship is a complex, but unified legal relationship and is of a continuing nature, the employee and the employer constantly exercise their rights and fulfill their obligations as long as the labor legal relationship exists and the employment contract on the basis of which this legal relationship arose is in force.
In Art. 21 of the Labor Code establishes the basic (statutory) rights and responsibilities of an employee, which are presented quite widely. This is the right to conclude, amend and terminate an employment contract in the manner and on the terms established by the Labor Code and other federal laws, and to provide him with work stipulated by the employment contract; as well as a workplace that meets labor safety conditions, and timely payment of wages in accordance with the qualifications of the employee, the complexity of his work, the quantity and quality of work performed, and the right to rest, ensured by guarantees such as the establishment of normal working hours, its reduction for certain professions and categories of employees, provision of weekly days off, non-working holidays, paid annual leave. Along with this, the employee has the right to complete reliable information about working conditions and labor protection requirements in the workplace and to professional training, retraining and advanced training in the prescribed manner, as well as to association, including the right to create trade unions and join them for protection of their labor rights, freedoms and legitimate interests, and to participate in the management of the organization in the forms provided for by the Labor Code, other federal laws and the collective agreement. This list is completed by the rights to conduct collective bargaining and conclude collective contracts and agreements through their representatives and to protect their labor rights, freedoms and legitimate interests by all means not prohibited by law, etc.
The main responsibilities of an employee include the obligation to conscientiously fulfill the labor duties assigned to him by the employment contract, and in compliance with the internal labor regulations of the organization, to observe labor discipline, to comply with established labor standards, and to take care of the property of the employer and other employees. In addition, the employee is entrusted with the obligation to comply with labor protection and occupational safety requirements and immediately notify the employer or immediate supervisor of the occurrence of a situation that poses a threat to the life and health of people, or the safety of the employer’s property. A more specific range of duties (work) of certain categories of workers is provided for by the Unified Tariff and Qualification Directory of Work and Professions of Workers and the Qualification Directory of Positions of Managers, Specialists and Other Employees (Technical Performers), as well as technical rules, labor protection instructions, job descriptions and other provisions , approved in accordance with the established procedure. Listed in Art. 21 of the Labor Code, the basic (statutory) rights and obligations of an employee cannot be characterized as “cash” rights and obligations, since actual possession of them is possible only in a specific labor relationship arising from an employment contract.
Thus, Art. 21 of the Labor Code predetermines the content of specific labor relations in which the statutory (fundamental) rights and obligations enshrined in this article of the law are manifested in the form of specific subjective rights and labor responsibilities that have arisen for a given employee who has entered into an employment contract with a given employer and entered into an agreement with him specified legal relationship.
For the first time in the Labor Code (Article 22), the basic (statutory) rights and obligations of the employer were consolidated.
The employer has the right to conclude, amend and terminate employment contracts with employees in accordance with the procedure established by law, conduct collective negotiations and conclude collective agreements, reward employees for conscientious, effective work and require employees to perform labor duties and take care of their property and other employees, comply with the rules internal labor regulations of the organization. The employer also has the right to bring employees to disciplinary and (or) financial liability and, in the prescribed manner, adopt local regulations. He has the right to create associations of employers for the purpose of representing and protecting his interests and to join them.
The employer has many responsibilities. In Art. 22 of the Labor Code, in particular, establishes his obligations to comply with laws and other regulations, local regulations, the terms of a collective agreement, agreements and terms of employment contracts, provide employees with work stipulated by the employment contract, ensure labor safety and conditions that meet the requirements of safety and hygiene labor and provide workers with equipment, tools, technical documentation and other means necessary for the performance of their labor duties, as well as provide workers with equal pay for work of equal value and pay the full amount of wages due to workers on time.
The employer is obliged to conduct collective negotiations, based on their results, conclude a collective agreement in the manner established by the Labor Code, and provide employee representatives with complete and reliable information necessary for concluding a collective agreement, agreement and monitoring their implementation. In addition, the employer is entrusted with the obligation to promptly comply with the instructions of state supervisory and control bodies, pay fines imposed for violations of laws and other regulatory legal acts containing labor law norms, and consider submissions from the relevant trade union bodies and other representatives elected by employees about identified violations laws, other acts, take measures to eliminate them and report on the measures taken to the specified bodies and representatives, as well as create conditions that ensure the participation of employees in the management of the organization in the forms provided for by the Labor Code, other federal laws and the collective agreement.
The employer is also subject to other responsibilities provided for by the Labor Code (for example, Articles 163, 212), federal laws and other regulatory legal acts, collective agreements, agreements and employment contracts. Thus, the list of employer responsibilities provided for in Art. 22 of the Labor Code is not exhaustive.
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. An employment contract plays an important functional role in the mechanism of legal regulation of labor relations, their occurrence, etc. Like any other contract, it has its own content - these are the conditions on which the parties have 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 also predetermines 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 limit the rights or reduce the level of guarantees of workers established by labor legislation (Part 2 of Article 9 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, 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 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, which in this case cannot be applied.
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 of a certain level of labor rights and guarantees, which the parties do not have the right to reduce by concluding an employment contract, do not have the right to exclude them or replace them with 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 the law of social protection.
It should also be noted that the very existence of the employment relationship is 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. The employee’s obligation to perform a labor function in compliance with internal labor regulations is provided for by the Labor Code (Articles 15, 56, etc.).
This also reveals 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 a certain type of contract, but also another type of contract that suits them better, meets their interests, or can resort to to a mixed civil law contract. In this case, the provisions of the law are not violated, and the contract establishes its essential terms, as required by paragraph 1 of Art. 432 Civil Code.
A similar situation is impossible when concluding an employment contract. In labor law, the employment contract occupies a central place. Its importance increases immeasurably in modern conditions of the formation and development of the labor market (labor force); it is not replaced by any other agreements or contracts.
An employment contract is the organizational and legal form that most adequately meets the needs of the labor market and the private interests of the employee and employer.
More on topic 4.4. Contents of the employment relationship:
- Topic 5.2. Labor relationship The concept of labor relationship
- 22. THE CONCEPT OF HOUSING LEGAL RELATIONSHIP. ELEMENTS OF HOUSING LEGAL RELATIONSHIP: SUBJECTS, CONTENT, SUBJECT (OBJECT)
- § 3. Object and content of civil procedural legal relations
- Question 4. Object and content of civil procedural legal relations
- Codes of the Russian Federation - Legal encyclopedias - Copyright - Advocacy - Administrative law - Administrative law (abstracts) - Arbitration process - Banking law - Budget law - Currency law - Civil procedure -
Labor Relations- these are social relations regulated by labor law norms.
Subjects of labor relations are divided into basic and additional. This division is based on the degree of influence of a particular subject on the emergence, operation and termination of labor relations.
· The main subjects of labor relations are the employee and the employer.
· Additional subjects are the labor council, labor dispute commissions, trade unions, employment services, legal services at the enterprise and other structures that ensure the normal functioning of production.
The labor relationship is based on an agreement by virtue of which one party (the employee) is obliged to perform work in a certain specialty, qualification or position, subject to internal regulations, and the enterprise (employer) undertakes to pay the employee wages and ensure working conditions provided for by law, collective agreement and agreement of the parties. Externally, the labor relationship looks like a type of obligatory relationship under civil law. However, within the framework of civil law relations, the contractor is obliged to provide the result of labor stipulated by the contract, i.e. properly fulfill the obligation. Questions regarding the nature and extent of labor, the working hours and routine, methods of fulfilling accepted obligations, i.e. the process of labor itself, and not just its result, falls within the competence of the labor legal relationship, which distinguishes it from the civil legal relationship.
Types of labor relations.
1. Relations regarding employment issues. Strictly speaking, these relations are not yet labor relations. They precede the emergence of labor relations and create an appropriate legal basis for them. They determine the nature of future labor relations. At this stage there is no employee and employer yet. Here there is an individual who enters into a relationship with the administration of the enterprise regarding the conclusion of an employment contract.
2. Direct labor relations. All subjects of labor law (main and additional) apply here.
3. Relations related to the termination of an employment contract and the dismissal of employees.
4. Relations arising in connection with the reinstatement of the employee. These relations arise if the employment contract was terminated at the initiative of the employer and the employee who disagreed with such a decision filed a claim in court for reinstatement at work.
Rights and obligations of subjects.
Main workers' rights are:
o the right to working conditions that meet safety and hygiene requirements;
o the right (by agreement with the employer) to establish working hours and workday routines;
o the right to remuneration for one’s work depending on personal labor contribution and the quality of work;
o the right to form trade unions;
o the right to annual paid leave;
o the right to compensation for damage caused by injury in connection with work;
o the right to social security due to age and loss of ability to work;
o the right to judicial protection of one’s labor rights.
The duties and rights of employees are defined in Art. 21 of the Labor Code of the Russian Federation and are regulated in detail by internal labor regulations and additional instructions.
The employee is obliged:
o conscientiously perform work duties;
o observe labor discipline;
o treat the property of the enterprise, institution, organization with care;
62.Employment contract: conclusion, amendment and termination.
An employment contract is one of the most important topics in labor law, because It is with its conclusion that labor relations arise, which can last for years and decades and play an important role in the life of any working person. Like any contract, an employment contract is agreement between two parties: the employee and the employer, according to which the employer is obliged to provide the employee with the work stipulated by the employment contract, pay wages on time, and the employee is obliged personally perform a certain job function, comply with internal labor regulations.
The parties to the employment contract are the employer and the employee. The employer, the owner of the property, can be an individual, a legal entity (an organization of any form of ownership), or another entity with the right to enter into employment contracts. Branches and representative offices, not being legal entities, may have the right to hire and fire employees, which must be reflected in the Charter (Regulations).
An employee is always an individual who has entered into an employment contract. The Russian legislator has abandoned the concept of “worker”, replacing it with the concept of worker, i.e. employee. In this case, it is necessary to distinguish between the legal status of a citizen who has a specific right to work and the status of an employee who has entered into an employment contract with the employer.
As a general rule, a citizen, based on the constitutional principle of freedom of labor, has the right to enter into an employment contract from the age of 16 on a voluntary basis. Cases of concluding an employment contract at an earlier age are listed in Article 63 of the Labor Code of the Russian Federation. The Constitution of the Russian Federation (Part 2, Article 37) and the Labor Code of the Russian Federation (Article 4) prohibit forced labor.
By virtue of Article 57 of the Labor Code of the Russian Federation, the employment contract specifies mandatory information and additional conditions; the latter can be included in the employment contract by agreement of the parties.
Additional conditions may include various benefits for a specific employee, conditions for advanced training, etc., while additional conditions should not worsen the employee’s position in comparison with the Labor Code of the Russian Federation.
Mandatory terms of the contract are essential terms of the employment contract. The contract is considered concluded when agreement is reached on all essential terms.
All terms of the agreement - mandatory and additional - can be changed only by agreement of the parties in writing.
Article 73 of the Labor Code of the Russian Federation allows for changes in essential working conditions at the initiative of the employer for reasons of changes in organizational or technical working conditions. The employee, having been notified of these changes no later than two months in writing, decides for himself whether he agrees to continue working under the new conditions. If the employee refuses to continue working, the employment contract with him is terminated in accordance with clause 7 of Article 77 of the Labor Code of the Russian Federation.
Employment contracts depending on deadline, on which they are concluded, are divided into two types:
· For undefined period;
· for a certain period, which cannot exceed 5 years.
As a general rule and in the interests of the employee (with rare exceptions), the employment contract does not indicate the duration of its validity; it is concluded for an indefinite period and cannot be terminated according to clause 2 of Article 77 of the Labor Code of the Russian Federation - “expiration of the employment contract.” In order to protect the rights of workers, the ILO adopted Recommendation No. 166 in 1982, limiting the possibility of concluding fixed-term employment contracts.
Concluding employment contracts for a specific period (up to 5 years) is an exception to the general rule. The initiator of concluding a fixed-term employment contract can be an employee or an employer. But at the same time, Article 59 of the Labor Code of the Russian Federation provides exhaustive a list of reasons why a fixed-term employment contract can be concluded: these are reasons related to production needs (replacing a temporarily absent employee who retains his job); reasons related to the nature of the work (temporary - up to two months; seasonal - Article 293 of the Labor Code of the Russian Federation); carrying out urgent work to prevent infrequent cases, accidents and to eliminate the consequences of emergency situations.
Other jobs that allow the conclusion of a fixed-term contract are: work in the Far North, work abroad, internship. Contracts for a certain period are concluded with persons working part-time, with old-age pensioners, with creative workers, with professional athletes, with scientific and pedagogical workers who have passed a competitive selection. Particular mention should be made of managers, their deputies and chief accountants of organizations, regardless of organizational, legal forms and forms of ownership. A fixed-term employment contract is concluded with him.
A fixed-term employment contract is concluded in cases provided for by federal laws. Thus, clause 2 of Article 20 of the Federal Law of August 29, 1996. “On higher and postgraduate professional education”, an employment contract with scientific and pedagogical workers of universities is concluded as a result of competitive selection for a period of up to 5 years. The current Labor Code of the Russian Federation in Article 332 confirms this condition. A fixed-term employment contract can be concluded in the interests and at the initiative of the employee himself. For example, an old-age or disability pensioner or a part-time worker in another organization may ask to conclude an employment contract with them for a certain period, based on personal capabilities.
But in any case, the following rules apply:
· if the contract does not specify a term, then it is considered concluded for an indefinite period;
· if, upon the expiration date of a fixed-term contract, none of the parties demanded its termination, then on the next day of continuation of work, the employment contract is considered concluded for an indefinite period;
· in any case, sufficient grounds are required to conclude a fixed-term employment contract. If the supervisory authorities or the court do not see these grounds, the contract will be considered concluded for an indefinite period.
The employment contract comes into force:
· from the date of its signing by the parties;
· from the date established in the employment contract itself;
· from the day the employee is actually admitted to work on behalf of the employer or his representative;
· the next day after its signing, if no date is specified.
If the employee does not start work without good reason within a week, the employment contract is canceled.
Chapter 11 of the Labor Code of the Russian Federation regulates the issues of concluding an employment contract.
For those applying for a job, the main condition is age. From the age of 16 it is allowed to conclude an employment contract on a general basis. The law provides for the conditions for employment of 14 and 15-year-old citizens, as well as cases of performing labor functions under 14 years of age.
There are guarantees provided to a citizen when applying for a job. Guarantees are presented as a number of prohibitions when concluding an employment contract.
Prohibited unjustified refusal to conclude an employment contract. In practice, this means that a refusal to hire must be justified by the employer because the citizen lacks the necessary qualifications, level of education, or business qualities; Discrimination in employment based on gender, race, nationality, origin and other circumstances is prohibited. Article 64 of the Labor Code of the Russian Federation considers a violation of the rights of a citizen to refuse to conclude an employment contract due to the presence or absence of registration (the notorious registration) at the place of residence or stay.
It is prohibited to refuse to conclude an employment contract to women due to pregnancy or the presence of children, as well as to employees invited in writing to work as a transfer from another employer.
In cases of unjustified refusal, which must be reported to writing, a citizen can appeal the refusal in court. Such lawsuits are not a common occurrence in judicial practice, but with their help it is possible to realize the constitutional right to work and equality of rights and freedoms of man and citizen. It is not superfluous for the violating employer to remind the contents of Article 145 of the Criminal Code of the Russian Federation, which provides for “unreasonable refusal to hire”... a fine in the amount of two hundred to five hundred minimum wages, or compulsory work for a period of one hundred twenty to one hundred eighty hours.
When concluding an employment contract, a person applying for a job is required to provide the employer with a limited number of documents specified in Article 65 of the Labor Code of the Russian Federation. This is a passport or other identity document; employment history; insurance certificate of state pension insurance (new in the Labor Code of the Russian Federation); military registration documents; if necessary - a document on education.
For a first-time applicant, a work book is issued at the main place of work within 5 days. The work book is a document certifying the total work experience; it contains information about the admission, transfers, dismissal of an employee, and information about incentives. Information about disciplinary sanctions (except for dismissal) is not entered in the work book. Entries in the work book must comply with the wording of the Labor Code of the Russian Federation and other regulations. The work book is kept at the main place of work.
Minors, under 18 years of age, and certain categories of employees are required to undergo a medical examination at the employer’s expense before concluding an employment contract.
The employment contract is drawn up only in writing, signed by both parties, one copy is given to the employee. If the employee is actually allowed to work, the employment contract is considered concluded from the day the employee began work. At the same time, the employer must draw up an employment contract with him in writing no later than three days from the date of actual admission to work. The mandatory requirement for a written form of an employment contract has been in effect since October 6, 1992 and is reflected in Article 67 of the Labor Code of the Russian Federation.
Hiring is formalized by an order from the employer, the contents of which must comply with the employment contract. The order is the basis for calculating wages; The employee gets acquainted with the order within three days against his signature.
Failure to comply with the form and procedure for applying for a job, all kinds of oral agreements are a violation of the law on the part of the employer and can contribute to the creation of a situation where it is difficult (or impossible) for an employee to prove his case in government control bodies and in court.
A pre-employment test is not required, but may be determined upon hiring by agreement of the parties in order to verify the employee’s suitability for the assigned work. The initiator in these cases is the employer, but the wording of Article 70 of the Labor Code of the Russian Federation indicates that the employee must express his consent (or disagreement). As a result of the concerted actions of the parties, the test condition is included in the employment contract (and in the order). It should be borne in mind that during the probationary period the employee all labor legal norms and local acts of the enterprise apply, incl. all conditions prisoner employment contract. You should not fall for the tricks of some employers who promise to “test first and then hire.” In this case, after working, you can lose your wages. A job test is only an additional condition of the employment contract, and the entire procedure for applying for a job must be strictly followed.
The probationary period is up to three months for all employees, up to six months for the heads of the organization, their deputies, and chief accountants.
If the employee has completed the probationary period, he continues to work after the expiration of the period. If the employee is not suitable for the given job, the employer may dismiss him before the expiration of the probationary period, warning him about this in writing no later than three days in advance or on the day of the end of the probationary period, indicating the reasons for the non-compliance with the job; The employer's decision can be appealed by the employee in court. However, the employee himself can resign of his own free will before the expiration of the probationary period, if the job is not suitable for him, by notifying the employer three days before the termination of the contract.
The dismissal of an employee who fails to complete the probationary period is simplified: the consent of the trade union body is not required, and severance pay is not paid.
Chapter 12 of the Labor Code of the Russian Federation is devoted to changes in the employment contract, namely, issues of transfer to another job, changes in essential working conditions, which is equivalent to transfer to another job; problems of relocation and labor relations in the context of a change in the owner of the organization or in the context of a change in the jurisdiction of the organization. First of all, the law regulates the procedure for transfers at the initiative of the employer. In this regard, the most common case of changing the terms of an employment contract is the transfer of an employee to another permanent job. According to Article 72 of the Labor Code of the Russian Federation, “other permanent work” is considered to be:
· change in job function or change in significant working conditions;
· transfer to permanent work in another organization;
· transfer to another location together with the organization while maintaining the job function.
In all specified cases, translation is permitted with the written consent of the employee.
A transfer of an employee to another workplace in the same organization or to another structural unit of this organization in the same area should be distinguished from a transfer to another job. An employee may be moving to work on another mechanism or unit. The transfer does not require the consent of the employee, an order from the employer is sufficient, but in each case the transfer can only be carried out within the scope of the specialty, qualification or position specified in the employment contract. Sometimes frequent movements can be seen as actions by the employer aimed at infringing on the rights of unwanted employees. The court can put an end to controversial situations.
Temporary transfer to another job is allowed only in case of production necessity for the performance of unforeseen and urgent work. Their list is given in Article 74 of the Labor Code of the Russian Federation. These are works related to the prevention or elimination of the consequences of disasters, accidents, natural disasters, industrial accidents; These are works related to the prevention of downtime, loss or damage to property. Temporary transfers are allowed for a period of up to one month with payment not lower than the average earnings for the previous job.
In this case, the employee can be transferred without his consent to a job that is not specified in the employment contract. A transfer in connection with replacing an absent employee cannot exceed one month in a calendar year. An employee may refuse a temporary transfer in the event of a medical contraindication. The temporary transfer is formalized by order. Article 73 of the Labor Code of the Russian Federation provides for the possibility of changing at least one significant working condition (for example, changes in wages, working hours, etc.) at the initiative of the employer, but for reasons of organizational or technological nature. Such changes objectively occur from time to time; the employee must be notified of them in writing no later than two months in advance and make a decision either to continue working under the new conditions or to refuse it. In this case, he is dismissed under Part 2 of Article 81 of the Labor Code of the Russian Federation. A change in the owner of the organization’s property, a change in jurisdiction or reorganization is not grounds for terminating labor relations with employees. If the employee does not want to continue working, he may be dismissed under Part 6 of Article 77 of the Labor Code of the Russian Federation.
The new owner can terminate the Employment contract within 3 months only with the manager, his deputies, and the chief accountant.
Article 76 of the Labor Code of the Russian Federation lists the grounds for the suspension (non-admission to work) of an employee for a period of time until the circumstances that led to the suspension (non-admission) to work are eliminated.
Transfers to another job are allowed on the initiative of the employee himself for medical reasons; pregnant women and nursing mothers - for easier work, and in other cases specified by law.
Article 77 of the Labor Code of the Russian Federation contains general grounds for termination of an employment contract; in this case, an entry in the work book must be made with reference to the relevant art. Art. Labor Code of the Russian Federation.
Let's consider the grounds (reasons) for dismissal.
Termination of an employment contract by “agreement of the parties” means that a contract with an indefinite period can be terminated by mutual agreement of the parties, when in practice one party initiates the termination of the employment relationship, and the other party agrees with this. This demonstrates the principle of voluntariness, both when concluding a contract and when terminating it. In this case, the parties do not restrain each other, motives can be hidden, the will of the parties is sufficient. A fixed-term contract can also be terminated early on the same grounds.
However, Article 77 of the Labor Code of the Russian Federation names more natural reasons for terminating a fixed-term contract. It can be terminated upon expiration, of which the employee must be notified three days before dismissal in writing. The employer has the right to renew the employment contract for a new term, but he can also refuse to renew the contract for the employee. A dispute over this may lead the parties to court.
A fixed-term contract is terminated upon completion of the work for which it was concluded; with the departure of a temporarily absent employee, with the expiration of seasonal work, which is a type of fixed-term employment contract.
Termination of an employment contract “at the employee’s own request” is extremely simple. An employee submits a letter of resignation without specifying reasons dismissals. The employer has the right to detain the employee for two weeks (or dismiss him on the day the application is submitted). The employee has the right to withdraw his application before the expiration of the 2-week period, provided that another employee is not invited in writing to take his place. After the expiration of the 2-week period, the employee has the right to stop working, demand the issuance of a work book and final payment. Controversial issues are resolved in court.
When an employee goes to school and in other cases, two weeks’ notice is not required.
Termination of a contract at the initiative of the employer occurs in the cases listed in Article 81 of the Labor Code of the Russian Federation and in other cases established by the Labor Code and other federal laws.
The employee may be fired in strict accordance with the law, the reasons for dismissal are entered in the work book in the wording of the Labor Code of the Russian Federation and, if necessary, the employer proves to supervisory and regulatory authorities and in court the correctness of his actions. The legislator regulates all cases of dismissal at the initiative of the employer, protecting the employee from the arbitrariness of the employer.
In this case, the following rules apply: upon dismissal under clauses 2 and 3 of Article 81 of the Labor Code of the Russian Federation, the employer is obliged to offer the employee another job (if there are vacancies); an employee cannot be dismissed during vacation or temporary disability; upon dismissal under paragraphs. 2, 3 the participation of a trade union organization is necessary.
An employment contract may be terminated due to circumstances beyond the control of the parties, in cases of conscription of an employee for military service, conviction of an employee by a court, death of an employee or employer (individual) and in other cases specified in Article 83 of the Labor Code of the Russian Federation. Labor The Code of the Russian Federation for the first time in the practice of Russian legislation gives a legal definition labor disciplines.
The concept of labor, legal relations. The labor relationship is a legal relationship regarding the use of the labor of a citizen as an employee who has entered into an employment contract at an enterprise, institution, or organization. The employer can also be an individual. The employer's status is regulated by labor law. The parties are vested with powers and responsibilities, the implementation of which is ensured by the possibility of using the coercive force of the state. The labor relationship is characterized by a specific subject composition. Each party has special rights and obligations. The basis for its occurrence is the employment contract (as a single act or in combination with other legal acts).
Thus, the labor legal relationship can be defined as a social relationship, regulated by the norms of labor law, that develops between an employee and an employer (enterprise, institution, organization, as well as an individual), by virtue of which one party (the employee) is obliged to perform work in a certain specialty, qualification or position, obey the internal labor regulations, and the employer undertakes to pay the employee wages and provide working conditions provided for by law, the collective agreement and the agreement of the parties.
With the help of the characteristics specified in the definition, a labor law relationship can be distinguished from other similar (also related to labor) legal relationships, for example, from civil ones. The latter arise between the same persons, but in connection not with the labor process, but only with its result. As a result, the responsibilities of subjects in civil legal relations (under a contract, assignment, author's agreement) are of a different nature than in labor relations. Here, neither the measure nor the mode of labor are regulated (unlike an employment contract), and the performer is only obliged to present the result of labor stipulated by the contract.
Labor relations, i.e. relations regulated by labor legislation should be distinguished from relations arising from membership in corporate organizations (partnerships, cooperatives). The latter are complex, including not only labor, but also elements of property, organizational (maybe land) relations, while the former are labor hiring relations. Any organization, regardless of its form of ownership, can hire an employee, enter into an employment contract with him and thereby “bring” the parties under the action of labor legislation. Membership relations, even in the case of performing a labor function (i.e. the existence of labor relations), are currently regulated not only by labor legislation, but also by the charters and constituent documents of the relevant organizations and civil legislation.
By its legal nature, labor relations are complex. Unlike simple ones, they include a number of powers and corresponding responsibilities and can be divided into separate simple ones, for example, into legal relations regarding wages, working time and rest time. In each of them, the separate authority of the subject corresponds to the obligation of the other party, for example, the employee’s right to wages corresponds to the employer’s obligation to pay it to the employee.
Contents of the employment relationship constitute the rights and obligations of its subjects (employees and employers). In contrast to the fundamental (statutory) rights that make up the content of the labor legal status of citizens, enshrined in Art. 2 of the Labor Code of the Russian Federation and discussed in Chapter. IV, subjective rights and obligations in legal relations represent the implementation of fundamental rights and obligations, which are specified in individual labor relations. Thus, the statutory right of a citizen to rest in a specific legal relationship means the right to establish a specific length of working time, a specific work schedule - a five-day or six-day working week and a certain duration of vacation for a given employee.
The main responsibilities of the employee are also specified. Provisions of Art. 2 of the Labor Code of the Russian Federation are specified and detailed in Art. 127 of the Labor Code of the Russian Federation, further - in the internal labor regulations, job descriptions (for employees) and tariff and qualification reference books (for workers), and in some industries - in the discipline regulations. Internal labor regulations are developed at enterprises and institutions. They usually include the following employee responsibilities:
work honestly and conscientiously, promptly and accurately execute orders from the administration, use all working time for productive work, refrain from actions that interfere with other employees performing their job duties;
increase labor productivity, timely and thoroughly fulfill production standards and standardized production tasks;
improve the quality of work and products, avoid omissions and defects in work, maintain technological discipline;
comply with the requirements for labor protection, safety precautions, industrial sanitation, occupational hygiene and fire protection, provided for by the relevant rules and instructions, work in the issued protective clothing, safety shoes, and use the necessary personal protective equipment;
take measures to immediately eliminate the causes and conditions that impede the normal production of work (downtime, accident) or complicate it, and immediately report the incident to the administration;
comply with the established procedure for storing material assets and documents;
take care of property, effectively use machines, machines and other equipment, take care of tools, measuring instruments, workwear and other items issued for use by employees, economically and rationally use raw materials, materials, energy, fuel and other material resources;
behave with dignity, follow all rules of the hostel.
An even more specific range of responsibilities (taking into account the labor function) is established by the Unified Tariff and Qualification Directory of Work and Professions of Workers *, the qualification directory of positions for managers, specialists and employees, as well as technical rules and job descriptions.
* See: Bulletin of the USSR State Committee for Labor. 1985. No. 6. P. 7; 1989. No. 1. P. 8.
The content of labor relations, along with the subjective rights and responsibilities of employees, includes the subjective rights and responsibilities of organizations (enterprises and institutions). At the same time, they correspond to each other, i.e. The rights of one subject correspond to the responsibilities of another and vice versa. For example, the employee’s right to create healthy and safe working conditions corresponds to the employer’s obligation to ensure these conditions, etc.
At the same time, the administration, as a body of an enterprise, institution, or organization, must also perform special responsibilities. In accordance with Art. 129 of the Labor Code of the Russian Federation, it is obliged to properly organize the work of workers, create conditions for the growth of labor productivity, ensure labor and production discipline, strictly comply with labor legislation and labor protection rules, be attentive to the needs and demands of workers, and improve their working and living conditions.
In addition, the legislator also imposes responsibilities on the administration to ensure normal working conditions to meet production standards (Article 108 of the Labor Code of the Russian Federation). These conditions are considered:
1) good condition of machines, machines and devices;
2) timely provision of technical documentation;
3) proper quality of materials and tools necessary to perform the work, and their timely supply;
4) timely supply of production with electricity, gas and other energy sources;
5) safe and healthy conditions (compliance with safety rules and regulations, necessary lighting, heating, ventilation, elimination of the harmful effects of noise, radiation, vibration and other factors that negatively affect the health of workers, etc.).
The charters and regulations of organizations, collective bargaining agreements and agreements, as well as employment contracts may also stipulate other responsibilities of the administration.
Grounds for the emergence, change and termination of labor relations. The circumstances with which the law connects the emergence, change or termination of legal relations, including labor relations, are called legal facts (or the grounds for their occurrence, change or termination). Thus, the basis for the emergence of an employment relationship is usually an employment contract, a bilateral act - an agreement of one party to go to work, and the other to accept this employee.
But there may be cases when the labor relationship arises from a complex legal fact (actual composition); which, in addition to the employment contract, also includes an administrative legal act - an act of a government body on assignment to work, for example, on the basis of quotas *. Currently, the solution to the question of the way in which work is entrusted to the position of the head of an organization (enterprise, institution) depends, as a rule, on the form of ownership on the basis of which it was created. Thus, in joint-stock companies, labor relations with the sole executive body of the company, as well as with each member of the collegial executive body of the company, are concluded after their election by the general meeting**.
* Cm. : Recommendations for quotas of jobs at enterprises, institutions, organizations for persons especially in need of social protection, approved by the resolution of the Ministry of Labor of the Russian Federation of February 6, 1995 // Bulletin of the Ministry of Labor of the Russian Federation. 1995. No. Z.S. eleven.
** Cm. : Art. 67 of the Federal Law “On Joint Stock Companies”.
But even in an organization with a state or municipal form of ownership, special regulations may establish a competitive selection of employees, presupposing their election to a position. Thus, with a person elected by competition by the academic council at a university, the head (rector) on behalf of the university (faculty) enters into an employment contract, provided that a corresponding order (management act) was previously issued approving the decision of the council and on the competitive election of the person. Thus, the actual composition that gives rise to the labor relationship includes the following facts:
a) a competition completed by the decision of the academic council to elect a candidate, i.e. act of election;
b) an order from the head on the approval of the academic council, which has been given legal force;
c) concluding an employment contract with the chosen one, in which, by agreement of the parties, working conditions are determined *.
* See: clause 2 of Art. 20 of the Federal Law of August 22, 1996 “On Higher and Postgraduate Professional Education” // SZ RF. 1996. No. 35. Art. 4135.
Competitive selection has also been established to fill some civil service positions.
Admission to certain vacant public service positions is preceded by a competition held by the relevant competition (state) commission, by decision of which an employment contract is concluded with the person elected through the competition. There is also a decision of the competition commission, an act of appointment to a position based on the decision on the competition and an employment contract *.
* Cm. : clause 3, art. 4 and clauses 6, 7, art. 21 and 22 of the Federal Law of July 31, 1995 “On the Fundamentals of the Civil Service of the Russian Federation”; Art. 17 Regulations on holding a competition to fill a vacant public position in the federal public service // SZ RF. 1996. No. 18. Art. 2115.
For some senior employees of state-owned enterprises and institutions included in the nomenclature of a higher management body, a procedure has been established for approval of positions by this body. Thus, here too, labor relations arise from two acts: an employment contract and an administrative legal act.
Legal facts associated with a change in labor relations necessarily include the agreement of the parties, or rather, if the initiative comes from the administration, then in the vast majority of cases the employee’s consent is required (the only exception is a transfer to another job due to production needs and downtime). If the initiative comes from the employee, then the consent of the administration is accordingly required, with the exception of a few cases when the employee’s demands must be satisfied unconditionally (for a pregnant woman in accordance with a medical report, as well as for a woman who has a child under the age of one and a half years, if it is impossible to fulfill the previous work - Article 164 of the Labor Code of the Russian Federation).
The basis for termination of labor relations can be either an agreement of the parties or a unilateral expression of the will of each of them. However, if no legal facts are required for the employee (with the exception of concluding a contract for a certain period), then the administration has established a clear list of grounds under which the employment relationship can be terminated. The basis for termination may also be certain legal facts (also listed in the law), when the initiative for termination belongs to a so-called third party who is not a party to the employment relationship. This is conscription or enlistment in military service, sentencing by a court if a criminal sanction precludes the possibility of continuing work, and demands of a trade union body (not lower than the district level) in relation to some senior employees in order to protect the interests of the labor collective of a given enterprise or institution (clause 3, 7, Article 29, Article 37 of the Labor Code of the Russian Federation).
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« »The concept of labor relations
An employment relationship is a legal relationship between an employee and an employer in the process of fulfilling the duties assigned to him by the employee.
Labor relationship is a voluntary legal relationship between an employee and an employer, in which both parties in the production process are subject to labor legislation, collective and individual labor contracts.
The relationships themselves have specific features:
- take place under conditions of subordination to internal labor regulations;
- the employee is usually included in the .
The participants (subjects) of labor relations are workers and employers. The subject of the labor relationship can be a foreigner (both as an employee and as a representative of the employer), and the employer can also be an individual citizen who hires an employee as a housekeeper, personal driver, gardener, etc.
Objects of labor relations
The object of the labor relationship is skills, abilities, abilities of the employee which he offers the employer to use and which interests the employer in the process organized by him. It is for them that the employer is willing to pay. In market relations, the price of an employee, like any product, is determined.
Types of labor relations
They depend on the type of relevant relationship and the specific underlying basis for the emergence and existence of this legal relationship. Therefore, in the same production, different types of labor relations are possible, since different types of employment contracts are possible (fixed-term, with an indefinite period, for the duration of seasonal work, part-time work, etc.).
Of these, two specific types of labor relations are distinguished:
- in connection with part-time work;
- under a student agreement.
Their specificity is that part-time job creates a second employment relationship for the employee along with his main place of work. A student legal relationship obliges the student, unlike other labor relations, not to work in a specialty or position, but to master this specialty in production. Then, after passing the qualification exam, the apprenticeship legal relationship is fully transformed into an employment legal relationship for the acquired specialty or profession.
Features of labor relations
A distinctive feature of labor relations is that labor relations are personal in nature, i.e., with the development of freedom of the employment contract, the individualization of the employee’s labor relations develops.
Another feature is that this relationship are built on compensated started, associated with mandatory remuneration for labor in the form of wages.
The third feature is that labor relations are of a continuing nature, i.e. they do not stop after the employee completes a certain work task, but are associated with his performance of a certain labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; or specifying the type of work entrusted to the employee) - Art. 15 Labor Code of the Russian Federation.
The legislation stipulates that labor relations based on the certainty and stability of the employee’s labor function, and prohibits the employer from requiring the employee to perform work not stipulated by the employment contract (Article 60 of the Labor Code of the Russian Federation).
Both the employment contract and the employment relationship arising on its basis are always mutual and bilateral.
Both parties to an employment relationship have the right to demand that the other subject fulfill his or her labor duties under the given legal relationship.
Since the employer has the right of disciplinary power, he can punish the employee himself if he fails to fulfill his duties in accordance with labor legislation, bring him to disciplinary and material liability, and both parties can resort to the coercive force of the state. This characterizes the volitional content of labor relations, which is supported by labor law norms that ensure normal, safe, appropriate payment, compensation for harm (damage), the possibility of dismissal, etc.
Emergence, change and termination of labor relations
, determining the emergence, change and termination of labor relations, usually associated with the moment of conclusion, change and termination(Article 16 of the Labor Code of the Russian Federation). But it should be noted that these legal facts do not always represent a type of action (hiring and dismissal of an employee); sometimes these are circumstances that are in the nature of events (death of an employee, emergency circumstances, etc.). In addition, often legal facts may provide participants with an alternative choice (for example, grounds for dismissal) or have a complex composition that includes several circumstances together (for example, the presence of fault, the wrongfulness of the act, the presence of damage and the causation of unlawful culpable behavior and material damage).
The basis for the occurrence The employment relationship is usually considered an employment contract. For employees holding elected positions, the basis for the emergence of their labor relations is the fact of election to this position. For some categories of employees, the basis for the emergence of labor relations is a complex composition of legal facts, when, in addition to the employment contract, it is preceded or followed by some legal fact. Thus, for persons hired through competition, the conclusion of an employment contract must be preceded by their election through competition to the given position. The complex structure of the emergence of labor relations among 14-year-olds, when an employment contract must be preceded by parental consent.
The fact of the emergence of an employment relationship can be actual permission to work, even if the hiring was not properly completed.
Changes in labor relations may occur due to lawful actions. Changes will be considered circumstances specified in Chapter 12 of the Labor Code of the Russian Federation.
The employment relationship is terminated the fact of termination of the employment contract on the grounds provided for by law (Chapter 13 of the Labor Code of the Russian Federation).
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Ministry of Education and Science of the Russian Federation
Federal Agency for Education
State Educational Institution
Higher professional education
"Komsomolsk-on-Amur State
Technical University"
Department of Jurisprudence
Specialty "Jurisprudence" - 030500
COURSE WORK
in the discipline "Labor Law"
Topic: “Labor relationship»
Student gr. 7YUR4d-1N
A.L. Kolesnikov
Teacher G. P. Mingaleva
Introduction
2. Grounds for the emergence, change and termination of labor
Conclusion
List of sources used
Introduction
The relevance of the chosen topic is due to the fact that in the system of legal relations the main thing is the labor legal relationship as it connects all other types of legal relations. The basis for the emergence of an employment relationship is a legal act such as an employment contract concluded between an employee and an employer.
When entering into labor relations, employers and employees defend their own interests that do not coincide with the interests of the other party to the employment contract. The discrepancy, and sometimes the opposition (antagonism) of the interests of employers and employees in the process of carrying out labor activities is the objective basis for the emergence of conflicts regarding the establishment and change of working conditions, the application of legislation and other normative legal acts, and labor agreements.
The causes of conflicts can also be subjective factors: the employer’s reluctance to comply with the requirements of current legislation, incorrect understanding and interpretation of the law, etc.
The relevance of the topic of this study is also determined by the fact that the rapid development of modern market civil turnover and, as a consequence of this, the improvement of the mechanism of labor relations and those directly related to them, require adequate legal regulation. This was largely facilitated by the entry into force of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) on February 1, 2002, in article 15 of which the legislator for the first time established the legal definition of labor relations.
The study of labor relations within the framework of labor law was carried out by such legal scholars as V. N. Tolkunova, V. I. Mironov and others. L. S. Tal, L. Ya. Ginzburg, N. G. Alexandrov, V. N. Skobelkin , B.R. Korabelnikov, E.N. Bondarenko and others, considered the issue of the concept, properties and specifics of the labor relationship.
Object of study: legal relations in the field of labor law.
Subject of research: labor relations.
Purpose of the study: to consider the grounds for the emergence, change and termination of labor relations and features that make it possible to distinguish them from civil legal relations related to the use of labor.
To achieve this goal, it is necessary to solve the following tasks:
1 Study the scientific and regulatory literature on the research problem.
2 Consider the concept of an employment relationship and features that allow it to be distinguished from other similar types of legal relationships.
3 Determine the main content of the employment relationship.
4 Consider the grounds for the emergence, change and termination of labor relations.
Research methods: study and analysis of legislation and scientific literature on the research problem.
The course work consists of an introduction, two main chapters, a conclusion and a list of sources used.
1. Labor relationship and its features
1.1 The concept of labor relations
labor legal relationship civil
O. V. Smirnov defines labor legal relations as follows: “a labor legal relationship is a legal form of expression of the social-labor relationship that develops in the labor market between an employee and an employer, according to which one party (the employee), being included in the workforce of the organization, is obliged to perform a certain type of work in compliance with the internal labor regulations established there, and the other party (the employer) is to provide the employee with work in accordance with the specialty, qualification or position stipulated by the agreement (contract), pay his labor and create working conditions favorable for health and personal development "
According to Art. 15 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), labor relations are relationships based on an agreement between the employee and the employer on the personal performance by the employee for payment of a labor function (work according to the position in accordance with the staffing table, profession, specialty, indicating qualifications, the specific type of entrusted work), the employee’s subordination to the internal labor regulations while the employer provides working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract.
The labor relationship has characteristic, inherent features.
In the conditions of collective work of workers, a given employer (organization) has various social relations that are regulated by such social norms as traditions, customs, moral standards, charters (regulations) on public associations, etc.
In contrast to these social relations, the labor relationship, regulated by the norms of labor law, is a legal relationship regarding the use of the labor of a citizen (individual) as an employee. The latter is opposed by the employer, which can be either a legal entity (organization) or an individual - an individual entrepreneur, or a citizen entering into labor relations with an employee using his labor. Thus, the subjects of the labor relationship are the employee and the employer.
The next feature of the labor legal relationship is the complex composition of the rights and obligations of its subjects, which is manifested as follows. 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 one, but several responsibilities to the other. Secondly, for some of the employer’s responsibilities he is responsible himself, for others, liability may arise from the manager acting on behalf of the employer as a management body, or they may bear simultaneously, but different responsibilities (for example, in case of non-payment of wages, the employer becomes liable). financial liability, and the manager (director) may be subject to disciplinary or administrative or criminal liability).
Based on the fact that the responsibilities of one subject of a legal relationship correspond (correspond) to the rights of another and vice versa, it is obvious that the labor legal relationship is characterized by a complex of mutual rights and obligations. This feature is connected with another feature of the labor legal relationship: 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, the labor legal relationship is a single legal relationship.
In the science of labor law, there are positions of scientists who defend the independence of the legal relationship regarding the material liability of workers and employers as related to labor legal relations. Attempts to destroy this integrity, to snatch from an inextricable complex individual combinations of rights and obligations do not indicate the emergence of new types of legal relations (on disciplinary or material liability), but lead to the “splitting” of a single complex labor legal relationship.
And finally, a feature of the employment relationship is its ongoing nature. In labor relations, the rights and obligations of subjects are implemented not by one-time actions, but systematically or periodically by performing those actions that are necessary during established working hours (working day, shift, week, month, etc.). The performance of a labor function by an employee in compliance with internal labor regulations after a certain time (two weeks) triggers response actions 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.
Only for educational purposes, its elementary connections are distinguished from the labor legal relationship, but one should not forget about all of its above-mentioned features, including the complex nature of the rights and obligations of the subjects of this legal relationship.
The labor legal relationship is not some kind of abstraction; in real life, labor legal relationships have a very specific embodiment. In a specific case, each citizen (individual) who has entered into an employment contract has an individual labor relationship with a specific employer, which is related to work activity. However, it must be borne in mind that persons who have entered into civil contracts (contracts, assignments, paid services, copyright agreements, etc.) can also engage in labor activity. For the first time in the Labor Code of the Russian Federation in Art. 15 establishes a definition of an employment relationship, which makes it possible to distinguish it from related legal relationships arising from these civil law contracts. The definition of an employment relationship establishes a binding agreement between an employee and an employer on the employee’s personal performance of a labor function for a fee, subject to the rules of internal labor regulations, under the guidance of the employer, who provides the necessary conditions and remuneration for the employee. We can say that the object of regulation in this case is living labor, its conditions and wages.
Thus, the characteristic features of an employment relationship that make it possible to distinguish it from related ones, including civil law relations, include the following.
· The personal nature of the rights and obligations of an employee who is obliged to personally participate only through his labor 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 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.
· The employee is obliged to perform a specific, predetermined labor function (work in a certain specialty, qualification or position), and not a separate (separate) individually 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, i.e. performing work is only a way to fulfill an obligation.
· The performance of the labor function is carried out in the conditions of common (cooperative) labor, which necessitates the subordination of the subjects of the labor legal relationship to the internal labor regulations adopted by the employer (organization) in the manner prescribed by law. Performing a labor function and the associated subordination to internal labor regulations means the inclusion of citizens in the collective of workers (staff) of a given employer (organization).
All three of these features constitute characteristic features of a citizen’s work as an employee, as opposed to a subject of civil law relations. At the same time, as is known, a single and complex labor relationship combines both coordination and subordination ties, where freedom of labor is combined with subordination to the internal labor regulations; this is impossible in civil law terms based on the fundamental principles of civil law.
The remunerative nature of the employment relationship is manifested in the response actions of the employer (organization), which is obliged to pay wages, usually in cash, for the performance of work. 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 labor legislation.
1.2 Subjects of labor relations
The subjects of the labor relationship are the employee (individual) and the employer. 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 (being a bearer of) rights and obligations. This is due to such qualities inherent in a person as legal capacity and capacity.
The employee is a mandatory subject of the labor relationship. Without it, this legal relationship simply cannot exist.
The Constitution of the Russian Federation in Art. 37 enshrines the right of everyone to manage their ability to work, to choose their type of activity and profession. Any living labor requires the personal volitional activity of a person and is associated with the use of his abilities to work (labor power). Only he himself has the right to dispose of these abilities and realize them; labor duties cannot be carried out through representatives and must be performed himself. Consequently, for an individual, legal capacity and legal capacity are inextricably linked and arise simultaneously, i.e. this person is recognized as both legally capable and capable. This unity is defined by the concept of “labor legal capacity”, or “labor legal personality”. Labor legal personality is the single ability of an individual to be the subject of an employment legal relationship (as well as some other legal relationships related to it). Labor legal personality is characterized by age and volitional criteria.
Unlike civil legal capacity, which arises from the moment of birth, labor legal personality is limited by law to reaching a certain age, namely 16 years. In the case of receiving basic general education 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 15 years. Persons studying in educational institutions who have reached the age of 14 can be hired to perform light labor that does not interfere with the learning process, in their free time from study, with the consent of one of the parents (guardian, custodian) and the guardianship and trusteeship authority. In cinematography, theater and other creative organizations, it is allowed, with the consent of one of the parents (guardian, trustee) and the guardianship and trusteeship authority, to conclude an employment contract with persons under 14 years of age to participate in the creation and (or) performance of works without harm to their health and moral development.
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, and benefits are established for them in the field of labor protection. They are also prohibited from performing work that may harm their health and moral development (gambling business, working in a night cabaret, etc.)
Along with age, labor legal personality is characterized by a volitional criterion, which is associated with a person’s actual ability to work (ability to work). Typically, ability to work is considered as physical and mental ability to work, which, however, cannot limit the equal legal personality for everyone. Even persons recognized as disabled and who have lost the ability to perform this work, on the recommendation of the relevant medical authorities, can participate in other types of work. In the same way, mentally ill people who have retained the ability to work have legal personality at work, with the exception of cases when, due to illness, they have completely lost their ability to work (for example, they are unable to balance their actions with the actions of others, cannot reasonably express their will, etc.) . If they have labor legal personality, then they can enter into a labor legal relationship and be its subject.
Thus, labor legal personality is characterized by legislation as equal for all citizens (individuals). This means that citizens are free to exercise their rights, and natural differences between them, such as gender, age, race, nationality or property status, the presence or absence of registration at the place of residence, or attitude to religion and other circumstances should not be of a discriminatory nature. sphere of labor.
Discrimination is prohibited by the Constitution of the Russian Federation, as is forced labor. This provision is reflected in labor legislation at the level of the basic principles of labor law enshrined in Art. 2 of the Labor Code of the Russian Federation, which are disclosed in Art. 3 of the Labor Code of the Russian Federation, which prohibits discrimination in the sphere of labor, and Art. 4 of the Labor Code of the Russian Federation, prohibiting forced labor.
The prohibition of discrimination in the world of work is based on the fact that everyone has equal opportunities to exercise their labor rights. No one can be limited in labor rights and freedoms or receive any advantages depending on circumstances not related to his business qualities as an employee. Article 64 of the Labor Code of the Russian Federation prohibits unreasonable refusal to conclude an employment contract. Discrimination is prohibited in establishing and changing wage conditions, etc.
However, differences, exclusions or preferences, as well as restrictions that are determined by the need to have appropriate training for certain types of work, are not discrimination. If the training (specialty, qualifications) of persons does not meet the requirements for work as a doctor, economist, teacher, lawyer, etc., then they cannot be hired to fill these positions. In addition, certain differences or preferences when hiring are due to special concern for persons in need of increased social and legal protection from the state. These include young people under 18 years of age, disabled people (persons who have partially lost their ability to work), women due to the birth of a child, etc.
It should be borne in mind that equal labor legal personality for all is limited only by a court verdict if a given individual is deprived of the right to hold certain positions or engage in certain professional or other activities (for a period of one to five years, if this is the main type of punishment, and from six months to three years as an additional punishment under Article 47 of the Criminal Code). In accordance with Art. 3.11 of the Code of Administrative Offenses, persons to whom the court has applied such a measure of administrative liability as disqualification are, for a specified period of time (from six months to three years), deprived of the right to occupy leadership positions in the executive body of a legal entity, to join the board of directors, supervisory board, etc.
Legislatively established boundaries (limits) of labor legal personality are possible, for example, foreign citizens and stateless persons; the Constitution of the Russian Federation allows only Russian citizens to take part in the management of state affairs and to participate in the administration of justice. Thus, the Law on the Legal Status of Foreign Citizens establishes a ban for foreign citizens to be in state or municipal service or to be a member of the crew of a Russian warship or a commander of a civil aviation aircraft. They are prohibited from both filling positions as part of the crew of a ship flying the State Flag of the Russian Federation (in accordance with the restrictions provided for by the Merchant Shipping Code of the Russian Federation) and being hired at facilities and organizations whose activities are related to ensuring the security of the Russian Federation. In addition, federal law may limit the admission of foreign citizens to hold other positions or engage in other activities.
Thus, the equal labor legal personality of individuals (citizens) cannot be limited by anything other than federal law or a court verdict. An individual who has entered into an employment legal relationship with an employer on the basis of an employment contract acquires the legal status of an employee as a participant in this legal relationship. The Labor Code of the Russian Federation defines an employee as an individual who has entered into an employment relationship with an employer.
In addition to labor legal personality, an individual (citizen) is also characterized by legal status. The basic legal status is understood as a set of rights, freedoms and responsibilities of an individual, secured by norms, primarily constitutional law. Consequently, the constitutional (basic) legal status fully fixes the rights, freedoms and responsibilities of man and citizen in the Russian Federation.
The legal status of an individual (citizen) in the sphere of relations regulated by labor law is determined by the fundamental rights, freedoms and responsibilities enshrined in the Constitution of the Russian Federation and Art. 21 Labor Code of the Russian Federation. These basic rights and responsibilities, unlike others, are called “statutory”; they are developed in subjective rights and responsibilities that make up the content of specific labor relations. The legal status of a citizen in the sphere of labor is supplemented by guarantees of his rights and responsibility for culpable failure to fulfill or improper performance of his labor duties, together with labor legal personality constitutes the legal status of the employee. This status is also commonly referred to as labor legal status.
As already mentioned, one of the subjects (participants) of the labor relationship is the employer. To identify the employer as a subject of this type of legal relationship, the economic criterion is first used. It allows you to clarify whether a given person (individual or legal) is involved as an entrepreneur, i.e. whether the determining factors of its production and activity are systematic profit making, investments, risk, danger of losses, etc. Activities that result in investments, expenses, possible losses, and profits that may arise as a result of work using the labor of employees - all this is evidence that the entrepreneur (owner) acts as an employer.
The labor of workers can be used by various enterprises, organizations and institutions - legal entities in all spheres of human activity, in connection with which these enterprises, organizations and institutions also act as employers.
In civil circulation, there are various commercial and non-profit organizations - legal entities, as well as individual entrepreneurs (not legal entities), which can use the labor of employees and, accordingly, have the status of an employer and act as the subject of labor relations with employees.
From the position of workers, any organization as a legal entity (regardless of its organizational and legal form), as well as an individual entrepreneur, are of interest in the case when they are able to satisfy the supply of workers in the labor market (labor force). These organizations (legal entities) and individual entrepreneurs act as employers if they, experiencing demand for labor, have, retain and open new jobs for which they hire workers, concluding an employment contract with them.
Unlike civil law, the organizational and legal form of legal entities (organizations) or the participation of an individual entrepreneur as an employer does not play a significant role in the regulation of labor relations. Citizens (individuals) as potential workers in the labor market are interested in the “employer legal capacity” of future employers related to the provision of work to citizens, payment and protection of their labor.
Consequently, any organization - a legal entity that is considered created from the moment of its state registration - can act as an employer. From the same moment, the organization - this legal entity acquires labor legal capacity (labor legal personality, which is equivalent in relation to a legal entity) and can act as an employer in labor legal relations with employees.
The transition to a market organization of the economy, the expansion of economic freedom and the development of entrepreneurship, which presupposes freedom of the labor market (labor), influenced the position of the subjects of labor relations. First of all, this affected the emergence of new owners - legal entities of various organizational and legal forms, as well as individual entrepreneurs capable of acting as employers. Currently, the subject (participant) of the labor relationship, i.e. employers are legal entities, which, depending on the purposes of their activities, belong to commercial or non-profit organizations, are created in one or another organizational and legal form (business companies, partnerships, production cooperatives, unitary enterprises, etc. For all these legal entities, a general term is used concept of "organization".
Along with a legal entity (organization), the subject of an employment relationship, an individual (citizen) who, from the moment of state registration, is engaged in individual entrepreneurial activity without creating a legal entity, can also act as an employer. An individual (citizen) can act as an employer, inviting another citizen to work as a domestic worker, driver, gardener, etc., to use their labor only in the interests of a personal (consumer) household without making a profit.
Previously, legislation (for example, the Law on Collective Agreements, the Law on Collective Labor Disputes, as well as the Employment Law, etc.) used the terms “organization” and “employer”, but there was no single definition of the concept “employer”. The Labor Code of the Russian Federation fills this gap and establishes the following definition of an employer: an 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.
The employer as a subject (participant) of the labor legal relationship must have labor legal capacity, which the organization acquires from the moment of its state registration as a legal entity, and a citizen (individual) - from the moment of state registration as an individual entrepreneur. The labor capacity of legal entities and individual entrepreneurs lies in the recognition of their right to provide work to citizens. This legal capacity is often referred to as employer legal capacity, meaning in this case by work, the employment provided to the employee by performing a specified labor function under established internal labor regulations with remuneration and labor protection.
The labor legal personality 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 (legal entity) must correspond to the goals and objectives of its activities defined in its charter. According to the difference in the goals and objectives of the activities of certain organizations (legal entities), and therefore their organizational and legal form, the content and scope of labor legal capacity differ among different organizations (employers).
For example, although the structure and staff of a legal entity in such an organizational and legal form as a unitary enterprise (based on the right of operational management) are approved by it itself, the wage fund and number limit are established by a higher body. And only within the limits of the given number limit and wage fund they have the right to hire citizens. And for legal entities - organizations of the public sector, the state also provides for the amounts of remuneration of employees on the basis of the Unified Tariff Schedule.
However, most legal entities (organizations of a different organizational and legal form) are characterized by a significant expansion of the scope of their legal capacity to work. They are independent in determining the number of employees, they themselves approve the type and system of remuneration, structure and management bodies, plan the necessary costs, etc. In addition, they enter into employment contracts with those citizens and in the number that they need to fulfill statutory tasks organizations in accordance with workplaces and staffing schedules.
Typically, working capacity is determined by two criteria: operational (organizational) and property. The operational (organizational) criterion characterizes the organization’s ability to hire and fire workers, organize their work, create all necessary conditions and labor protection, provide social protection measures, respect the labor rights of workers, etc. The property criterion determines the ability to manage funds (wages fund , other relevant funds), pay employees for their work, give them bonuses, and provide other benefits related to material support.
Thus, organizations (legal entities), having the legal capacity to work, enter into an employment contract and enter into a labor relationship as an employer with those citizens (employees) who are necessary for the organization to carry out its statutory tasks and economic activities.
As is known, legal entities (organizations) exercise legal capacity through their bodies, acting in accordance with laws, other regulatory legal acts and constituent documents. In labor relations, the bodies of a legal entity (employer) are the head of the organization (general director, director, etc.) or other bodies that, in accordance with the charter (regulations), have the right to hire and fire employees, approve staffing, issue orders and regulations that are binding on employees of the organization , and vested with other powers in the field of organizational and managerial activities. The right to conclude an employment contract with employees can be delegated by a body of a legal entity to its representative by power of attorney (for example, in a branch, representative office).
If the employer is an individual, he can simultaneously be a manager, organizing and managing the work of employees. These provisions are enshrined in Art. 20 of the Labor Code, which establishes that the rights and obligations of an employer in labor relations are exercised by an individual who is an employer of a legal entity (organization) - by its management bodies or persons authorized by them in the manner established by laws, other regulatory legal acts, and constituent documents of the legal entity ( organization) and local regulations.
The employer (property owner) or the body authorized by him has the right to appoint, elect or otherwise select the head of the organization. Thus, the head of a state unitary enterprise has an employment relationship in the manner established by regulatory legal acts. The procedure for selecting a manager and other executive bodies of a joint-stock company is determined by the Law on JSC.
The formation of these bodies and the early termination of their powers are carried out by decision of the general meeting of shareholders, if the company's charter does not place the resolution of these issues within the competence of the board of directors (supervisory board) of the company (clause 8 of article 48, clause 9 of article 65, part 1 Clause 3 of Article 69 of the Law on JSC). On the basis of an employment contract concluded between a joint-stock company (employer), on behalf of which the board of directors (supervisory board) acts, and the director (general director), as well as members of the board (directorate) (if an employment contract has been concluded with them), an employment relationship arises with some features established by law.
Currently, with the adoption of the Labor Code, the features of labor regulation of the head of the organization and members of the collegial executive body of the organization are established in Chapter. 43 of the Labor Code, which covers the procedure for concluding and terminating an employment contract, etc. This chapter of the Labor Code enshrines the concept of the head of an organization: the head of an organization is an individual who, in accordance with the law or the constituent documents of the organization, manages this organization, including performing its functions sole executive body (Article 273). The rights and responsibilities of the head of an organization in the field of labor relations are determined by the Labor Code, laws and other regulatory legal acts, constituent documents, as well as the employment contract concluded with him (Article 274 of the Labor Code). At the same time, the provisions of the Labor Code apply to the heads of organizations, regardless of their organizational and legal forms and forms of ownership, with the exception of those cases when the head of the organization is the only participant (founder), member of the organization, owner of property, or the management of the organization is carried out under an agreement with another organization ( management organization) or individual entrepreneur (manager).
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, which appears in the legal relationship, its legal content as interconnectedness with subjective rights and legal obligations.
Thus, the interaction of participants in a social labor relationship manifests itself 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). For example, the employee’s right to health and safe working conditions corresponds to the employer’s obligation to provide such conditions, and the employer’s right to demand that the employee comply with internal labor regulations corresponds to the employee’s obligation to comply with them (submission to internal labor regulations). Let us recall that the labor relationship consists of a whole complex of labor rights and obligations, i.e. is a complex but unified legal relationship and is of a continuing nature. Accordingly, its subjects constantly (systematically) exercise their subjective rights and fulfill their responsibilities.
In this case, subjective right is understood as the legally protected ability (legal measure of freedom) 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 obligation of a participant in an employment relationship is a legal measure of the proper behavior of the obligated person, in other words, the subjective obligation consists of proper behavior corresponding to subjective law.
Since an employment legal relationship always arises between specific persons on the basis of an agreement reached between them (employment contract), 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 Code provides for the basic (statutory) rights and obligations of participants in the labor relationship. In relation to the personality of the employee, these rights and obligations in accordance with the Constitution of the Russian Federation (Article 37, etc.) are enshrined in general form in the Labor Code as the basic (statutory) rights and obligations of the employee (Article 21) and as the basic (statutory) rights and obligations employer (Article 22 of the Labor Code).
When entering into an employment relationship, the employee and the employer, as its subjects, have subjective rights and obligations that constitute the content of this employment relationship, representing a specification and detail of these basic (statutory) rights and obligations.
Thus, in an employment legal relationship, its content consists of subjective rights and legal obligations that its participants acquire with the emergence of this legal relationship on the basis of an employment contract concluded between them. Since the labor legal relationship is a complex, but unified legal relationship and is of a continuing nature, the employee and the employer constantly exercise their rights and fulfill their obligations as long as the labor legal relationship exists and the employment contract on the basis of which this legal relationship arose is in force.
In Art. 21 of the Labor Code establishes the basic (statutory) rights and responsibilities of an employee, which are presented quite widely. This is the right to conclude, amend and terminate an employment contract in the manner and on the terms established by the Labor Code and other federal laws, and to provide him with work stipulated by the employment contract; as well as a workplace that meets labor safety conditions, and timely payment of wages in accordance with the qualifications of the employee, the complexity of his work, the quantity and quality of work performed, and the right to rest, ensured by guarantees such as the establishment of normal working hours, its reduction for certain professions and categories of employees, provision of weekly days off, non-working holidays, paid annual leave. Along with this, the employee has the right to complete reliable information about working conditions and labor protection requirements in the workplace and to professional training, retraining and advanced training in the prescribed manner, as well as to association, including the right to create trade unions and join them for protection of their labor rights, freedoms and legitimate interests, and to participate in the management of the organization in the forms provided for by the Labor Code, other federal laws and the collective agreement. This list is completed by the rights to conduct collective bargaining and conclude collective contracts and agreements through their representatives and to protect their labor rights, freedoms and legitimate interests by all means not prohibited by law, etc.
The main responsibilities of an employee include the obligation to conscientiously fulfill the labor duties assigned to him by the employment contract, and in compliance with the internal labor regulations of the organization, to observe labor discipline, to comply with established labor standards, and to take care of the property of the employer and other employees. In addition, the employee is entrusted with the obligation to comply with labor protection and occupational safety requirements and immediately notify the employer or immediate supervisor of the occurrence of a situation that poses a threat to the life and health of people, or the safety of the employer’s property. A more specific range of duties (work) of certain categories of workers is provided for by the Unified Tariff and Qualification Directory of Work and Professions of Workers and the Qualification Directory of Positions of Managers, Specialists and Other Employees (Technical Performers), as well as technical rules, labor protection instructions, job descriptions and other provisions , approved in accordance with the established procedure. Listed in Art. 21 of the Labor Code, the basic (statutory) rights and obligations of an employee cannot be characterized as “cash” rights and obligations, since actual possession of them is possible only in a specific labor relationship arising from an employment contract.
Thus, Art. 21 of the Labor Code predetermines the content of specific labor relations in which the statutory (fundamental) rights and obligations enshrined in this article of the law are manifested in the form of specific subjective rights and labor responsibilities that have arisen for a given employee who has entered into an employment contract with a given employer and entered into an agreement with him specified legal relationship.
For the first time in the Labor Code (Article 22), the basic (statutory) rights and obligations of the employer were consolidated. The employer has the right to conclude, amend and terminate employment contracts with employees in accordance with the procedure established by law, conduct collective negotiations and conclude collective agreements, reward employees for conscientious, effective work and require employees to perform labor duties and take care of their property and other employees, comply with the rules internal labor regulations of the organization. The employer also has the right to bring employees to disciplinary and (or) financial liability and, in the prescribed manner, adopt local regulations. He has the right to create associations of employers for the purpose of representing and protecting his interests and to join them.
The employer has many responsibilities. In Art. 22 of the Labor Code, in particular, establishes his obligations to comply with laws and other regulations, local regulations, the terms of a collective agreement, agreements and terms of employment contracts, provide employees with work stipulated by the employment contract, ensure labor safety and conditions that meet the requirements of safety and hygiene labor and provide workers with equipment, tools, technical documentation and other means necessary for the performance of their labor duties, as well as provide workers with equal pay for work of equal value and pay the full amount of wages due to workers on time.
The employer is obliged to conduct collective negotiations, based on their results, conclude a collective agreement in the manner established by the Labor Code, and provide employee representatives with complete and reliable information necessary for concluding a collective agreement, agreement and monitoring their implementation. In addition, the employer is entrusted with the obligation to promptly comply with the instructions of state supervisory and control bodies, pay fines imposed for violations of laws and other regulatory legal acts containing labor law norms, and consider submissions from the relevant trade union bodies and other representatives elected by employees about identified violations laws, other acts, take measures to eliminate them and report on the measures taken to the specified bodies and representatives, as well as create conditions that ensure the participation of employees in the management of the organization in the forms provided for by the Labor Code, other federal laws and the collective agreement.
The employer is also subject to other responsibilities provided for by the Labor Code (for example, Articles 163, 212), federal laws and other regulatory legal acts, collective agreements, agreements and employment contracts. Thus, the list of employer responsibilities provided for in Art. 22 of the Labor Code is not exhaustive.
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. An employment contract plays an important functional role in the mechanism of legal regulation of labor relations, their occurrence, etc. Like any other contract, it has its own content - these are the conditions on which the parties have 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 also predetermines 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 limit the rights or reduce the level of guarantees of workers established by labor legislation. 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 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, which in this case cannot be applied.
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 of a certain level of labor rights and guarantees, which the parties do not have the right to reduce by concluding an employment contract, do not have the right to exclude them or replace them with 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 the law of social protection.
It should also be noted that the very existence of the employment relationship is 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. 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 also reveals 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 a certain type of contract, but also another type of contract that suits them better, meets their interests, or can resort to to a mixed civil law contract. In this case, the provisions of the law are not violated, and the contract establishes its essential terms, as required by paragraph 1 of Art. 432 of the Civil Code of the Russian Federation.
A similar situation is impossible when concluding an employment contract. In labor law, the employment contract occupies a central place. Its importance increases immeasurably in modern conditions of the formation and development of the labor market (labor force); it is not replaced by any other agreements or contracts.
An employment contract is the organizational and legal form that most adequately meets the needs of the labor market and the private interests of the employee and employer.
2. Grounds for the emergence, change and termination of labor relations
For the emergence, change and termination of labor relations, a corresponding legal fact must occur, in accordance with the rules of law. 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 in labor law. These facts in labor law represent lawful 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.
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. In this capacity, the employment contract plays a very important role in the mechanism of legal regulation of labor relations; it acts as the basis for the emergence, change or termination of labor relations.
As a general rule, an employment contract is the basis for the emergence of most labor relations. But in some cases, legal norms link the emergence of labor relations not with one legal act, which is an employment contract, but with several. Taken together, these legal acts constitute the so-called complex legal composition, which serves as the basis for the emergence of labor relations. The existence of these compositions is due to the specifics of the labor of certain categories of workers, the special complexity of the work they perform, increased responsibility for their implementation, etc.
The extraordinary nature of such work activity places a fairly high level of demands on individuals (citizens) to fill the relevant positions and necessitates the establishment of a special procedure for the selection of highly qualified personnel. In some cases, a procedure is established related to the control and verification mechanism for selecting one of the applicants for a position (competition); in others, a candidate for a position is nominated by one or another group of people, and then, subject to the developed procedure, is elected to the position (election) or appointed ( approved) for a position by a higher management body (act of appointment or approval).
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