Labor Relations. Legal regulation of labor relations
Russian labor law is recognized by many experts as one of the most advanced in the world in terms of legislative regulation. The Labor Code of the Russian Federation is a normative act that, according to lawyers, provides employed citizens with very high social security. Labor legislation of the Russian Federation, moreover, is closely related in a number of areas to civil law. Let's consider the nuances of this legal industry. What are the specifics labor relations in Russia? What are the conditions for their occurrence and on what grounds can they be classified as an independent category? What kind of regulations regulate this area?
Definition
Labor relations, according to a common definition, are interactions between an employee and his employer related to the personal performance by the former of some production function in exchange for payment.
The basis is a written agreement drawn up in accordance with the Labor Code of the Russian Federation. As a rule, labor relations imply the employee’s attendance at work at a specific location and the performance of duties in accordance with the schedule, as well as the fulfillment of other organizational conditions.
Do you need a contract?
The answer to this question is clearly positive. The Labor Code of the Russian Federation allows for a scenario in which the relevant relationships will be recorded without a signed contract - at the time of the actual start of work. However, written documentation of the relationship between employee and employer is required by law. The period during which the company must conclude an agreement with an employee is 3 days from the moment he actually begins to fulfill his duties. labor responsibilities.
At the same time, as some lawyers note, the employing company has the right to allow citizens who are in the status of applicants for a vacancy to perform work, but does not formalize labor relations in accordance with the requirements of the Labor Code of the Russian Federation. However, it will be necessary to document the relevant interaction one way or another. This can be done in the form of a civil contract agreement. Although, according to experts, much depends on the content specific type work. The fact is that if the actual work function implies a person’s mandatory attendance at work on schedule without delay, it is inadmissible to engage in other activities in work time, and also, most importantly, is characterized by a continuous process of problem solving, then in this case the applicant’s activities can be assessed, for example, by the Rostrudinspektsiya, as corresponding to the performance of regular duties. And in this case, the department may oblige (as a rule, this is done in judicial procedure) the employer enters into an agreement with the person under the Labor Code.
But if the employing company, having signed a civil contract with the candidate, allows him to work in a free schedule, and those tasks that are given to the applicant are single in nature and do not form a continuous work process, then it is not necessary to conclude an agreement under the Labor Code.
The relationship between an employment contract and a civil contract
It will be useful to pay attention to the comparison of two documents that are similar in subject and content, but at the same time completely different in terms of attribution to specific branches of law. The first is the actual employment contract concluded between the employing company and the hired employee in accordance with the norms of the Labor Code. The second is a civil contract.
The practical use of the second type of document occurs not only in scenarios when it is necessary to temporarily register an applicant. Many employer companies prefer to enter into civil contracts as an alternative to traditional labor contracts. How are they different? What kind of obligations does an employer have when signing a civil contract with an employee?
To begin with, let us note the dissimilarity of the noted documents in terms of correlation with legal branches. Strictly speaking, both types of agreement can be classified as civil law. However, Russian experts prefer to consider them within the framework labor sphere. Actually, it is she who regulates the relationship between employers and employees through the Labor Code of the Russian Federation and accompanying legal acts. The sphere of labor relations is characterized by the conclusion of contracts between companies and employees that have a number of specific characteristics. We have already outlined some above - the need to be present at the workplace at certain hours, to perform a continuous function. But there are other criteria.
To begin with, we note that legal status the parties to the relationship within the framework of the norms of the Labor Code and the provisions governing the status of civil contracts are completely different. In the first case, the contract is signed on behalf of the company by the “employer”, in the second - by the “customer”. The other side will also be called differently. So, in the case of an employment contract it will be “employee”, and when signing a civil contract - “performer” or “contractor”.
Civil contracts imply the performance of work, first of all, in terms of achieving a specific result. For example, create a website, or write program code. In turn, the activities of hired employees generally reflect the process of human participation in solving the company’s problems. Specific results may, at the same time, be a condition for the accrual of additional bonuses and premiums. However, this aspect is secondary from the point of view of the legal nature of the employment contract, although, perhaps, it is important for the employee in terms of salary.
The next criterion for distinguishing contracts of the types under consideration is the frequency of remuneration. In the case of an agreement that is concluded in accordance with the norms of the Labor Code, the employing company is obliged to pay employees a monthly salary. With a standard working day and 40 hours of work per week, the amount of remuneration should not be lower than the minimum values established by law. In turn, in the case of a civil contract, periodic salaries are not provided. Payments are accrued upon the provision of finished work by the contractor and its acceptance by the customer.
The employing company, concluding civil contracts with performers, does not bear any social obligations to them, such as, for example, providing vacations and sick leave. In turn, such responsibilities are assigned to employers under employment contracts.
The next aspect that allows you to see the difference between civil contracts and agreements according to the Labor Code is the status of the party performing the work. In the case of an agreement under the Labor Code, this can only be an individual. In turn, civil law contracts can also be signed by individual entrepreneurs.
Payments to the treasury are mandatory
Thus, we see that there are many differences between the two types of contracts. At the same time, there are also general points. In particular, this is a remuneration scheme from the point of view of interaction between the employer and budget funds and tax service. When calculating wages according to the Labor Code standards, the employing company pays about 30% of it to the Pension Fund of the Russian Federation and the Social Insurance Fund, as well as 13% to the Federal Tax Service. Absolutely the same thing happens in the case of work performed under civil contracts, but the basis is the amount of compensation for the contractor determined in the contract. We note, however, that if the party performing the work is an individual entrepreneur, then the hiring company does not need to pay any fees to the Pension Fund, Social Insurance Fund and Federal Tax Service. In turn, the individual entrepreneur himself must pay the necessary taxes on the compensation received in accordance with the civil law agreement.
Emergence of labor relations
Labor relations may arise as a result of the following facts that are significant from the point of view of the prospects for concluding the relevant contract. First, a candidate may be elected or appointed to a position that involves performing functions within the type of relationship in question. Secondly, a person can go through a competition and thus fill a vacancy as the most suitable specialist. Thirdly, it is possible that an employment contract is concluded by a court decision.
Employee status
Labor relations thus arise with the participation of two parties - the employee and the employing company. What are the characteristics of the status of each of them? First of all, an employee can only be an individual. Set labor legal relations It is not possible with an individual entrepreneur or business company. This may be a citizen of the Russian Federation. You can also conclude an employment contract with a foreigner or a person without official citizenship, but both of them must have permission to work in Russia. In general, the Labor Code of the Russian Federation establishes minimum age permission to work for hire at 16 years of age. But exceptions are also possible, which are provided for by relevant legal acts. For example, a person can start working at the age of 14 if his parents consent to this.
An option is possible when labor relations, an employment contract must be drawn up in more detail early age. For example, if we're talking about about a contract with a young actor who will star in a theater production or film. In this case, parental consent is also required. At the same time, they also sign an employment contract with the theater or film studio.
Employer status
In general, labor relations with employees are formalized by legal entities. But a scenario is possible in which an individual can also do this; the law allows this. To do this, a citizen needs to register as an individual entrepreneur, or having the status of a notary, lawyer or representative of another profession that is subject to licensing or special procedures state registration. At the same time, an individual entrepreneur can act as an employer only if the person registered in this capacity is already 18 years old. Although the law provides for exceptions to this rule. In particular, if a person married before the age of 18, then from the moment of registration of marriage he acquires full legal capacity. And therefore, for example, he can hire people.
Employer and documents
What kind of documents does the employer need to draw up, apart from the actual contract with the employee and the accompanying work book? Let's look at the list of the main ones that require legislative regulation labor relations. First of all, these are internal rules. According to the laws of the Russian Federation, this document must supplement the employment contract, revealing the nuances concerning the actual conditions for employees to perform work. Other important documents are instructions on labor protection, a statement on familiarization of employees with local documentation, as well as, for example, a regulation on the protection of personal data of employees.
In many Russian companies are published various kinds additional sources, for example those that regulate labor relations in an organization from the point of view business culture, communication traditions and other aspects specific to a particular business. Despite the fact that the law may not require such documents from companies, their distribution among employees can be useful in terms of accelerating adaptation to the specifics of the company’s activities.
Social aspect
According to some lawyers, Russian legislation contains provisions that encourage employers to formalize so-called social-labor relations with employees. Of course, this term is mainly informal. However, experts believe that its practical significance in relation to the sphere of labor relations is quite high.
Social and labor relations are the principles according to which communications between employers and employees are carried out with an emphasis on trust, mutual respect and the desire for mutually beneficial partnership. The concept under consideration, according to experts, is much broader than the actual relations provided for by the norms of the Labor Code of the Russian Federation. They reflect not so much the legal aspect of the interaction between employer and employee, but rather the social and, to a large extent, psychological aspect.
What are the criteria for the conformity of a particular type of labor relationship with social relations? First of all, experts highlight such a principle as equal partnership. The employer, therefore, should not consider labor and labor relations only as one of the business tools, ultimately aimed at making a profit. The next criterion is legality. An employer, when building relationships with an employee, is obliged, and this is first of all, to approach the policy of interaction with him on the basis of the law. Another important criterion is openness. The labor relations system built at the enterprise should not imply significant barriers for employees seeking to receive information that is important, from their point of view. In particular, one that reflects the state of affairs in the business of the employing company and other significant aspects of the company’s activities related to the labor functions of employees.
Regulation of social and labor relations at the level official sources rights, as many lawyers believe, have not yet been enshrined in Russia. At the same time, there is a version that the main source of norms in the area under consideration - the Labor Code of the Russian Federation - contains provisions that guarantee the provision of significant preferences to hired employees regarding interaction with the employer. In particular, the employing company must have very compelling reasons to dismiss an employee. If we compare Russian legislation in this part, say, with American legislation, then, as many experts believe, it will be obvious that the position of Russian workers in terms of protection from dismissal looks preferable. In fact, even a labor code in the United States similar to the Russian one has not yet been developed.
Thus, as some lawyers believe, the regulation of social and labor relations in Russia is, to a certain extent, actively carried out by the existing legislation. The most important thing is that the employer practically follows the requirements contained in legal acts.
Labor function
Labor law and labor relations are phenomena that are characterized by a fairly diverse conceptual apparatus. regulating the area under consideration contain terms designed to succinctly characterize one or another aspect of the interaction between the employer and the employee. Such as, for example, “labor function”. Let's consider its specifics in more detail.
The labor function is one of the components of the contract between the employer and the employee. The definition of this term, in particular, is contained in Articles 15 and 57 of the Labor Code of the Russian Federation. The main Russian law that regulates labor relations states that the corresponding function should be understood as work according to the position in relation to the staffing table, the performance of duties in a profession or specialty, or a specific type of activity of an employee.
Among modern lawyers, discussions sometimes arise about how the essence of the labor function should be correctly reflected in the relevant contract. According to the provisions of the Labor Code of the Russian Federation, it should be indicated in the contract in any case. However, as many experts note, an unambiguous approach to defining the labor function in Russian legal practice has not yet been developed.
According to one of the common approaches, the labor function is interpreted as a set of rights and responsibilities of an employee. There is another point of view. In accordance with it, a labor function is the performance by an employee of work provided for by his specialty or qualifications. According to another version, the term in question should be understood as certain qualitative indicators of activity.
Some experts prefer to associate the concept of labor function with types of work that are defined in widespread, official sources, such as, for example, the Unified Tariff and Qualification Handbook, which reflects wide range professions. That is, as soon as a person is hired, his labor function is fixed in the contract in relation to the wording in the specified reference book. However, as some experts note, Russian laws, which regulate labor relations between employee and employer, do not directly require employing companies to use information from such sources.
Labor Relations- relations based on an agreement between the employee and the employer on the personal performance by the employee for payment of a labor function (work in a certain specialty, qualification or position, performance certain type work), the employee’s subordination to internal rules labor regulations when the employer provides working conditions provided for labor legislation, collective agreement, agreements, local regulations, employment contract.
All employers, regardless of their organizational and legal forms and forms of ownership, in labor relations with employees are required to be guided by the provisions of labor legislation. 
Labor laws do not apply to the following persons (unless they simultaneously act as employers or their representatives):
- military personnel in the performance of military service duties;
- members of boards of directors and supervisory boards (except for persons who have entered into an employment contract with the organization);
- persons working under civil contracts;
If a civil law agreement is concluded between the parties, but during the trial it is established that this is actually an employment contract, then it is considered that an employment relationship exists.
- other persons, if this is established by federal law.
Relations related to the state civil service are regulated by labor legislation to the extent that is not regulated by a special law.
Parties to labor relations are the employee and the employer.
Worker- an individual who has entered into an employment relationship with an employer.
Employees are considered to be all persons employed, as well as working participants joint stock companies, partnerships, production cooperatives. A working business owner can be both an employer and an employee.
In labor relations You can join from 16 years old. Upon receipt of the main general education or termination of studies, an employment contract can be concluded from the age of 15. With the consent of one of the parents (guardian, trustee) and the guardianship and trusteeship authority, labor relations extend to 14-year-old adolescents. They can perform easy work V free time, if it does not harm their health and does not disrupt the learning process. Children engaged in theatrical, cinematic, and circus activities can enter into labor relations up to the age of 14, if this occurs without harm to their health and moral development, with the consent of one of the parents (guardian, custodian) and the guardianship authority.
On public service, in enterprises with hazardous or dangerous conditions labor, in underground work, as well as in work the performance of which may harm their health and moral development (gambling business, work in night cabarets and clubs, production, transportation and trade in alcoholic beverages, tobacco products, narcotic and other toxic drugs), a person can only work after 18 years.
The list of jobs in which the employment of workers under the age of eighteen is prohibited has been approved by the Government of the Russian Federation. Age norms
strictly mandatory for employees. Entrepreneurs and administration who violate them are held accountable, and employment relations with teenagers are terminated. Labor legislation does not provide for a maximum age for entering into an employment relationship, but for being in the public service it is set at 65 years.
An employment contract cannot be concluded with a person who has been declared incompetent by a court due to mental illness or dementia, since he is unable to meaningfully perform the job duties assigned to him. Ability to work for disabled people determined by the relevant medical commission.
A citizen who has committed a crime may be deprived of the right to engage in certain activities by a court. The restriction can only be partial and temporary; complete deprivation of citizens’ right to work is not allowed.
The employer can be either a legal entity or an individual(any citizen has the right to enter into an employment contract with a nanny, housekeeper, etc.). Individual entrepreneurs after reaching the age of 16 they are fully capable and act as employers for equal rights with legal entities.
Norms labor laws apply
for all employees and employers who have entered into an employment contract. They must be applied by all employers (both legal entities and individuals) regardless of their organizational, legal forms and forms of ownership.
How are labor relations regulated?.
Regulation of labor and other related relations is carried out by labor legislation (including legislation on labor protection) and other regulatory legal acts that contain standards labor law and, in turn, are divided into federal and local.
Federal regulations of labor law include:
Constitution Russian Federation, which are the legal basis of labor legislation;
Labor Code Russian Federation;
federal laws containing labor law standards;
decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation, regulations of ministries, departments and committees of the Russian Federation regulating labor relations;
resolutions of the Plenum of the Supreme Court of the Russian Federation on controversial issues of labor relations.
It should be noted that the acts of the Plenum of the Supreme Court of the Russian Federation are themselves sources of law. They cannot introduce new rules or change old ones. But as a result of generalization judicial practice Supreme Court The Russian Federation may come to the conclusion that it is necessary to amend the current legislation.
Local regulations of labor law include:
regulatory legal acts of the constituent entities of the Russian Federation;
law-making bodies local government;
internal labor regulations established at the enterprise;
collective agreements and agreements;
employment contracts;
orders and instructions of heads of enterprises and institutions.
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 employment contract.
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 it is possible different types labor relations, 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 are distinguished specific type labor relations:
- 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 work in the form 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 certainty and stability of labor employee functions, 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 the 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).
Commentary on Article 15
1. This article contains the official (legal) definition of labor relations, which constitute the core of the subject of their legal regulation for labor law norms, but do not exhaust it (see Article 1 of the Labor Code and the commentary to it).
The material content of these relations is represented by a specific type of labor, which the employee, by virtue of an agreement, applies in the interests and under the direction of the employer. The goal of the employer, which he pursues by concluding the relevant agreement, is to satisfy the need for this labor necessary for his economic or other activities. In turn, the person who provides his ability to work to the employer pursues the goal of disposing of his labor power with maximum benefit for himself in the form of receiving the highest wages and comfortable conditions labor. Since labor power is one of those benefits that are, in principle, inseparable from a person’s personality, the conclusion of such an agreement does not turn the employer into the owner of the labor power of the person with whom he entered into an employment relationship. In this sense, labor cannot appear as an independent product in the labor market and the subject of any agreement. Accordingly, the subject of the employer’s contract with the person entering into an employment relationship with him is not the labor force, but a certain labor function of the employee (for more information about the content of the concept of “labor function”, see Article 56 of the Labor Code and the commentary thereto). This labor function, in essence, is a type of specific labor that the holder of the appropriate ability to work undertakes to perform for pay, in the interests, under the guidance and at the risk of the employer.
This labor, called “hired” or “non-independent”, becomes the object of labor relations due to the fact that it is the subject of an employment contract, which in a market economy is concluded in conditions of the most open, free supply of labor and choice of a partner under an employment contract.
Wage labor, which gives rise to labor relations, differs from all other types of labor, which either are not brought into the labor market at all and therefore do not give rise to any relations, or are brought to the services market and are implemented within the framework of other, i.e., non-labor, relations .
The first type includes individual or family labor, used by people in their own interests without entering into any external relations with other people regarding its implementation. For example: a) work on a personal plot, dacha or garden plot; b) the labor of self-employed farmers and members of their families; V) domestic work, satisfying the consumer needs of the person himself and his family members, etc.
To the second type of labor, which is brought to the market paid services and becomes the object of civil contractual relations, includes independent work carried out in the course of performing relevant duties. Such relationships arise, for example, in the implementation of obligations arising from various civil law transactions (contract, assignment, paid services, agency, copyright agreement, etc.). The object of these transactions is usually not labor itself as a kind of living human activity, applied every day by one person in the interests of another, and the final result or beneficial effect of this work. This labor does not generate, in addition to civil relations, any independent labor relations, because the labor itself carries in this case independent in nature and applied by the working party to a civil contract in conditions of personal autonomy from the other party to the contract.
Elements of labor costs can be found in other types of social useful activity person. In particular, they are present in teaching, civil and military service, political, social and creative activity, religious worship, sports (excluding professional sports), etc. However, the relations accompanying the corresponding labor costs, as a rule, have a different target orientation in comparison with hired labor used in the interests and under the direction of a specific employer. Because of this, they do not arise in connection with the conclusion of an employment contract, which today serves as a universal basis for the emergence of labor relations regulated by labor legislation.
Thus, the subject of legal regulation of labor law norms should include only those labor relations that arise regarding the use of hired labor used by virtue of a concluded employment contract.
2. The labor relations generated by the use of such labor are bilateral, individual and ongoing.
The bilateral nature of these relations means the inclusion of no more than two subjects among their parties. One of them is a specific employee, the other is a specific employer (see Article 20 of the Labor Code and the commentary thereto).
The individuality of labor relations is manifested in the fact that their parties are in a legal relationship, which is always of a singular nature. Regardless of the number of employees working for any employer, each of them has independent, and therefore individual, labor relations with their common employer.
The ongoing nature of labor relations means that they bind the parties to these relations throughout the entire period of validity of the employment contract, regardless of their actual content specific activities and facts of its temporary termination or modification.
Bilateralism, individuality and the ongoing nature of labor relations predetermine the specifics of their legal regulation, which is manifested in the use of legal mechanisms based on the stability of labor relations, reciprocity and individuality of labor rights and obligations provided to their parties, guarantees for the implementation of these rights and obligations, measures legal liability and protection.
In the definition of labor relations, which is contained in Art. 15 of the Labor Code, other signs of these relations are given. In particular, they are characterized by remuneration, which involves systematic payment of the employee’s labor, which must be provided by the employer regardless of the results of his business (see Article 129 of the Labor Code and the commentary thereto).
Another specific feature of the labor relationship is the personal nature of the labor function assigned to the employee under the contract. By general rule an employee, as a party to an individual labor relationship, does not have the right to delegate to anyone the performance of his labor duties, or to involve others in their performance. individuals without the employer's consent.
Labor relations are also characterized by the sign of the employee’s subordination to the normative, administrative and law enforcement authorities of the employer, resulting from the economic position of the employer as the owner, organizer and user of all factors that form its economic sphere. These factors include the hired labor of workers.
The employer's regulatory power is exercised in the rule-making activities of its individual or collegial executive bodies that adopt local regulations. The administrative (directive) power of the employer is exercised through the organizational and managerial activities of specific managers who are authorized to give binding oral and written orders (instructions, directives) to their subordinate employees during the labor process.
The employer’s enforcement power is exercised through the issuance of written orders and instructions that are also binding on employees, which implement the requirements of labor law norms contained in certain sources of labor law. Such orders (instructions) formalize, for example, hiring (see Article 68 of the Labor Code and the commentary thereto), changing the terms of the employment contract, its termination, etc.
The listed features of labor relations distinguish them both from civil legal relations (for more details, see Article 56 of the Labor Code and the commentary thereto), and from all other relations that are associated with the use of a person’s ability to work without the need to conclude an employment contract.
Current version of Art. 15 Labor Code of the Russian Federation with comments and additions for 2018
Labor relations are relations based on an agreement between an employee and an employer on the personal performance by the employee for payment of a labor function (work according to a position in accordance with the staffing table, profession, specialty indicating qualifications; a specific type of work entrusted to the employee) in the interests, under management and control the employer, 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 conclusion of civil contracts that actually regulate labor relations between an employee and an employer is not allowed.
Commentary on Article 15 of the Labor Code of the Russian Federation
1. Labor relations arise only on the basis of an agreement between the employee and the employer. At the same time, labor relations should be distinguished from other relations related to the performance of work or the provision of services, which are regulated by civil law. A sign of an employment relationship is the personal performance by an employee of a labor function for payment.
The labor function is understood as performing work according to the position in accordance with the staffing schedule, profession, specialty, indicating qualifications, and the specific type of work assigned to the employee.
In the letter of Rostrud dated October 31, 2007 N 4412-6 “On the procedure for making changes to job descriptions workers" it is indicated that, despite the fact that the Labor Code of the Russian Federation does not contain any mention of job descriptions, it is important document, the content of which is not only the labor function of the employee, the circle job responsibilities, limits of responsibility, but also qualification requirements for the position.
The employee performs the labor function personally.
It should be noted that in accordance with the Federal Law of May 5, 2014 N 116-FZ “On Amendments to Certain Legislative Acts of the Russian Federation”, from January 1, 2016, the concept of labor relations disclosed in the commented article will be supplemented with the provision that the labor function is performed in the interests, under the direction and control of the employer.
The subjects of labor relations are the employer and the employee.
The science of labor law examines issues of succession in the field of labor relations. In theory, it is generally accepted that succession in labor relations is possible only on the employer’s side. For example, a change of employer may occur in the event of reorganization. According to the reorganization of the organization, it cannot be a basis for terminating employment contracts with employees. Succession on the side of the employee in labor relations is impossible due to the legal requirement for him to personally perform his labor function.
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Veselkov E., Nechaev A. Succession in labor relations // EZh-Lawyer. N 47. 2012.
Within the framework of labor relations on the basis of an agreement, the employee is obliged to obey the internal labor regulations when the employer provides working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, labor regulations, and an employment contract. Section 8 of the Labor Code of the Russian Federation is devoted to the regulation of labor regulations and labor discipline.
In accordance with the Decree of the State Committee for Labor of the USSR dated July 20, 1984 N 213 “On approval of the Model Internal Labor Regulations for workers and employees of enterprises, institutions, organizations,” which is currently applied to the extent that does not contradict the Labor Code of the Russian Federation, the internal labor regulations have the purpose, in particular, of promoting the rational use of working time, high quality work, increasing labor productivity.
The employee performs his labor duties for a fee, the amount of which by labor legislation depends on the employee’s qualifications, complexity, quantity, quality and conditions of the work performed. The employee's salary also includes compensation payments and incentive payments ().
According to working conditions - a combination of factors production environment And labor process that affect the performance and health of the employee. One of the important responsibilities of the employer is to ensure proper working conditions, the requirements for which are provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, labor regulations, and employment contracts.
2. In accordance with the Federal Law of December 28, 2013 N 421-FZ “On amendments to certain legislative acts of the Russian Federation in connection with the adoption Federal Law“On the special assessment of working conditions”, the commented article has been supplemented with Part 2, according to which the conclusion of civil contracts that actually regulate labor relations between the employee and the employer is not allowed.
Violation specified requirement entails liability under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, in the form of imposing an administrative fine on officials in the amount of ten thousand to twenty thousand rubles; on persons carrying out entrepreneurial activity without forming a legal entity - from five thousand to ten thousand rubles; on legal entities- from fifty thousand to one hundred thousand rubles. And the commission of this administrative offense by a person who was previously subjected to administrative punishment for a similar administrative offense entails the imposition of an administrative fine on citizens in the amount of five thousand rubles; for officials - disqualification for a period of one to three years; for persons carrying out entrepreneurial activities without forming a legal entity - from thirty thousand to forty thousand rubles; for legal entities - from one hundred thousand to two hundred thousand rubles.
When considering in court disputes about the nature of existing legal relations, as indicated by the Constitutional Court of the Russian Federation, courts of general jurisdiction must not only proceed from the presence (or absence) of certain formalized acts (civil contracts, staffing table etc.), but also to establish whether in reality there were signs of labor relations and an employment contract specified in Art. 15 and 56 of the Labor Code of the Russian Federation (see the definition of the Constitutional Court of the Russian Federation of May 19, 2009 N 597-О-О).
The existence of an employment relationship can be confirmed by references to the tariff and qualification characteristics of the work, job descriptions and any documentary or other indication of a specific profession, specialty, type of work assigned. Art. deals with the peculiarities of recognizing relations arising on the basis of a civil contract as labor relations. 19.1 of the Labor Code of the Russian Federation (see commentary to Article 19.1).
However, it is not so easy to prove the existence of an employment relationship even in court. For example, appellate ruling Chelyabinsk regional court dated November 18, 2014, in case No. 11-12217/2014, the request for recognition was denied agency agreement labor, imposing the obligation to make an entry in work book, collection of wages, compensation for unused vacation, compensation for moral damage. According to the circumstances of the case, the plaintiff refers to the fact that, on the basis of an agency agreement, he is in an employment relationship as an agent with the defendant. The court's decision is based on the fact that there is no labor relationship, since the application for concluding an employment contract has not been signed, the agency agreement does not contain conditions on the performance of a specific labor function, on establishing a work and rest schedule, the amount of wages and other essential conditions employment contract.
Also, by the decision of the Leningrad Regional Court dated August 7, 2014 N 33-3971/2014, the requirements for recognition of the agency contract as an employment contract were refused, since the applicant did not provide evidence of the permanent nature of the work, the presence of an obligation to perform a certain, predetermined labor function with subordination to the internal labor rules routine.
Another comment to Art. 15 Labor Code of the Russian Federation
1. The commented article contains a definition of labor relations, which form the core of the subject of the branch of labor law (see Article 1 of the Labor Code and the commentary thereto). The material content of these relations is the specific labor that the employee, by virtue of the concluded employment contract, applies in the interests and under the direction of the employer. By including this labor in its economic sphere, the employer acquires the opportunity to carry out economic or other activities, and the individual satisfies his own interest in obtaining work and paying for it.
Labor power is one of those benefits that, in principle, are inseparable from a person’s personality, therefore the conclusion of an employment contract does not turn the employer into the owner of the labor power of the person with whom he entered into an employment relationship. In this sense, labor cannot appear at all as an independent product in the labor market and the subject of any agreement. Accordingly, the subject of the employer’s labor contract with the person entering into an employment relationship with him is not the labor force as such, but a certain labor function of the employee (for more details, see Article 56 of the Labor Code and the commentary thereto), which is a type of specific labor that the owner labor force undertakes to employ for a fee in the interests, under the direction and at the risk of the employer.
Due to the fact that this labor is not alienated from the employee, but is only used by the employer, i.e. It is hired by them, as it were, it received the name “hired” (“non-independent”) labor, which is used in a market economy under the conditions of the most open, free supply of labor and choice of a partner under an employment contract. This work in a significant way differs from other types of labor, which either are not brought into the labor market at all and, therefore, do not give rise to any relations, or are brought to the services market and are implemented within the framework of others, i.e. non-labor relationships.
The first type includes individual or family labor performed by people for their own needs without entering into any external relationships with other people regarding its implementation (for example, work in household, on a summer cottage or garden plot).
The second type includes the so-called independent labor, which is brought to the market of paid services and becomes the object of civil contractual relations. Such relationships arise, for example, in the implementation of obligations arising from contract agreements, assignments, and paid services. The object of these contracts is usually labor not as a certain type of living human activity, daily used by one person in the interests of another subject, but as a one-time final result or beneficial effect of this labor. This labor does not give rise to independent labor relations, because it is independent, independent and applied by the working party to the civil contract in conditions of personal autonomy from the other party to the contract.
Elements of labor costs can be found in other types of socially useful human activities. They are present in education, civil and military service, political, social and creative activities, religious worship, sports (excluding professional sports), etc. However, all these relationships, although they involve some labor costs, have a different target orientation in comparison with hired labor. Because of this, they do not arise on the basis of an employment contract.
Thus, only those relations that arise between an employer and an employee for the use of labor on the basis of a concluded employment contract are considered labor relations.
2. The employment relationship generated by such labor is bilateral, individual and ongoing. The bilateral nature of these relations stems from the fact that their parties include no more than two subjects - the employee and the employer (see Article 20 of the Labor Code and the commentary thereto). The individuality of labor relations stems from the singularity of the legal connection of the parties, manifested in the fact that each employee is connected with the employer by a separate labor relationship, regardless of the total number of employees he has. The ongoing nature of these relations means that the legal connection of the parties remains throughout the entire period of application and use of hired labor, regardless of its content and results.
The definition of labor relations also contains their other features, in particular: a) remuneration, which involves systematic payment of the employee’s labor, which must be provided by the employer regardless of the results of his business (see Article 129 of the Labor Code and the commentary thereto); b) the personal nature of the labor function assigned to the employee, which implies a prohibition for the employee, as a party to an individual labor relationship, to delegate to anyone the performance of his labor duties, as well as to involve other individuals in their performance without the consent of the employer; c) the employee’s subordination to the regulatory, administrative and law enforcement power of the employer, arising from his economic position as the owner, organizer and recipient of benefits from the use of all factors relevant economic activity, which includes the labor of workers.
In the most complete form, the signs of an employment relationship are listed in paragraph 13 of ILO Recommendation No. 198 “On the Employment Relationship” (adopted in Geneva on June 15, 2006), which established that these include: performance of work in accordance with instructions and under control employer; employee integration into organizational structure enterprises; performance of work personally by the employee and solely or primarily for the benefit of another person in accordance with a specific schedule or at a workplace specified or agreed upon by the party ordering it; presence of the employee in certain place and the provision of tools, materials and mechanisms to him by the party who ordered the work; certain duration and continuity of work performed; periodic payment to the employee of remuneration, which is his only or main source of income; implementation of remuneration in kind by providing the employee, for example, food products, housing or Vehicle; recognition of rights such as weekly days off and annual leave; payment by the party who ordered the work for travel undertaken by the employee in order to perform the work; the employee has no financial risk.
The listed features distinguish labor relations not only from civil law, but also from all other relations, although related to the use of a person’s ability to work, but not implemented on the basis of an employment contract.
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