Objects of labor relations. this necessitates the employee's submission to the internal labor regulations established by the employer

The object of the employment relationship is the performance of a certain type of work, characterized by a certain specialty, qualification, position.

The characteristic of the object of the labor relationship is currently not unambiguous, since in labor legal relations the object is essentially not separable from their material content (behavior of the obliged, etc.). The beneficial effect provided by the employee (giving a lecture, etc.) can be consumed, as a rule, during the production process. And since in labor law material goods (objects) are practically inseparable from labor activity employee, the characteristics of the material content of labor relations exhaust the question of their object.

The material content of an employment relationship is understood as the actual behavior of its participants (subjects), which is ensured by subjective labor rights and obligations. The actual is always secondary and subordinated to the legal (volitional) content of the labor relationship, which is formed by the subjective rights and obligations of their participants. The content of these rights and obligations is expressed in the legal possibility within the boundaries established by law to act, demand, claim, enjoy benefits, etc. and in the obligation to meet the conflicting interests and needs of other actors.

Based on the unity of the material and legal (volitional) components, we can say that the subjective rights and obligations of employees included in the content of the labor legal relationship are realized and specified statutory rights and obligations that make up the content of the legal status of employees. These rights and obligations of subjects of labor legal relations will be discussed in the next section of the work. There is a material interest in the results of labor activity, the satisfaction of the economic, social needs of the employee and the employer, the protection of the relevant labor rights of subjects.

This concept of labor legal relations seems to be broader, it includes the actual labor relationship between the employee and the employer and other social relations directly related to labor. Each of these legal relationships differs in subjects, content, grounds for occurrence and termination.

The types of labor legal relations are determined by the subject of labor law, and among them are:

Legal relations for the promotion of employment and employment;

Labor relations between an employee and an employer;

Legal relations on labor organization and labor management;

Legal relations for professional training, retraining and advanced training of employees;

Legal relations of trade unions with employers to protect the labor rights of workers;

Supervision and control relationship;

Legal relations on the material responsibility of the parties to the employment contract;

Legal relations for the resolution of labor disputes;

All types of legal relationships can be conditionally divided into:

Basic (labor relations);

Associated and organizational and managerial (for employment, organization and management of labor);

Protective legal relations (for supervision and control, material liability of the parties to an employment contract, resolution of labor disputes, compulsory social insurance).

Labor relations - actual social relations on labor in production and other social relations that are the subject of labor law, which constitute a whole group of legal relations in the sphere of labor. This is a voluntary legal relationship between the employee and the employer, in accordance with which the employee undertakes to perform a certain labor function with subordination to the internal labor regulations of the organization, and the employer creates the necessary working conditions in accordance with the law and pays the employee's work no less than minimum size labor established by law.

Labor relations are always bilateral. They are attended by an employee and an employer with labor personality.

The types of labor legal relations are classified depending on the types of labor contracts: how many labor contracts - so many types of labor legal relations. For example, a specific type of employment relationship is employment relationship with part-time work. When working part-time, an employee has two parallel employment relationships.

The labor relationship must be distinguished from related legal relationships related to labor, but regulated by the norms of civil legislation, according to following signs:

1) in an employment relationship, an employee, as a rule, acts as a member of a labor collective, but in a civil one - not;

2) the subject of the labor relationship is the labor process itself, and in the civil one - its materialized result;

3) in the employment relationship, a prerequisite is the subordination of the employee to the rules of the internal labor schedule, which is not the case in a civil relationship;

4) in the employment relationship, the obligation to provide the employee with the means of production, as well as the obligation to protect labor, is assigned to the employer, and in the civil legal relationship to labor, such an obligation is usually assigned to the performer.

All rights and obligations in the employment relationship are personal, i.e. an employee cannot put someone in his place to perform the labor function assigned to him. The employer also cannot change one employee for another without sufficient grounds. All legal relations arising on the basis of an employment contract are always individual, and at the same time are bilateral, i.e. on the one hand, there is a complex of powers of one party and the corresponding obligations of the other subject, and vice versa.

The employment relationship is closely related to the employment contract, but not identical to it: the employment relationship contains the entire set of rights and obligations of a specific labor law relationship, which is its content, and content of an employment contract - these are his conditions.

The basis for the emergence of labor legal relations are the legal facts named in the legislation. Their occurrence is associated exclusively with lawful actions, through which the rights and obligations of employees and employers are established for the implementation of the employee's labor function.

As a rule, an employment relationship arises on the basis of employment contract... The Labor Code of the Russian Federation also provides following grounds the emergence of an employment relationship:

· Election to office;

· Election by competition to fill the relevant position;

· Appointment or confirmation in office;

· Assignment to work by bodies authorized in accordance with federal law on account of the established quota;

· judgment on the conclusion of an employment contract.

Labor relations between the employee and the employer also arise on the basis of the employee's actual admission to work with the knowledge or on behalf of the employer or his representative in the case when employment contract was not properly framed.

Labor relations on the basis of an employment contract as a result of election to a position arise if the election to a position involves the performance of a certain labor function by the employee.

Labor relations on the basis of an employment contract as a result of being elected by competition for filling the relevant position arise if labor legislation and other regulatory legal acts containing labor law norms, or the charter (statute) of the organization determine the list of positions to be filled by competition, and the procedure for competitive selection for these positions.

Labor relations arise on the basis of an employment contract as a result of appointment to a position or approval in a position in cases stipulated by labor legislation and other regulatory legal acts containing labor law norms, or the charter (statute) of the organization.

A change in labor legal relations can occur both as a result of actions and as a result of events, for example, transfer to another job not stipulated by an employment contract, but only with the consent of the employee, with the exception of cases of production necessity provided for in Art. 74 of the Labor Code of the Russian Federation.

The termination of an employment relationship can be both as a result of an action and as a result of an event, for example, termination of an employment contract at the initiative of the employee (at his own request) Art. 80 of the Labor Code of the Russian Federation; death of an employee - Art. 83 of the Labor Code of the Russian Federation.

Labor relations - this is a social relationship regulated by the norms of labor law arising on the basis of an employment contract, according to which one subject (employee) undertakes to perform a labor function in compliance with the rules of the internal labor schedule, and another subject (employer) is obliged to provide work, ensure healthy and safe working conditions and pay for the work of an employee in accordance with his qualifications, work complexity, quantity and quality of work.

mutual rights and obligations of its subjects, determined by the labor contract, labor legislation and collective agreement (agreement).

The employee is obliged to accurately fulfill his contractual labor function, obeying the rules of the internal labor regulations of this production, and the employer is obliged to comply with the labor legislation and all working conditions of the employee provided for by the labor and collective agreements and labor legislation.

The labor relationship includes a number of rights and obligations of the parties interconnected with them: working time, rest time, remuneration, guarantees and compensations, etc. The scope and nature of labor rights and obligations depend on many factors and are specified in relation to the labor function (specialty, qualifications, position) of the employee.

Features of the labor relationship:

the subjects of the employment relationship are the employee and the employer;
the labor relationship has a complex composition of the rights and obligations of its subjects: each of them acts in relation to the other both as an obliged and as an entitled person, and also bears not one, but several obligations;
despite the complex composition of rights and obligations, the employment relationship is uniform;
the continuing nature of the labor relationship (the rights and obligations of the subjects are realized not by one-time actions, but systematically, by performing those actions that are necessary during the established working hours).

However, persons who have entered into civil law contracts (personal contract, assignments, paid services, author's contract, etc.) can also engage in labor activity.

Typical signs of an employment relationship (delimiting it from related, including civil law, relations):

The personal nature of the rights and obligations of an employee who is obliged by his labor to participate in the production or other activities of the employer (the employee does not have the right to represent another employee instead of himself or entrust his work to another, etc., such a limitation is absent in the contract).
The employee is obliged to perform the labor function stipulated by the employment contract, and not a separate (separate) individually-specific task by a certain date, which is typical for a civil contract.
The fulfillment by the employee of his labor function is carried out in conditions of collective (cooperative) labor, which is connected with the inclusion of the employee in the collective (staff) of employees with the consequent need to comply with the established rules of the internal labor schedule.
The compensatory nature of the labor relationship is manifested in the employer's response to the performance of the labor function - in the issuance of appropriate wages (payment is made for the living labor expended by the employee systematically in the established working hours, and not for the specific result of materialized (past) labor, as in civil law relation).
The right of each of the subjects to terminate the employment contract without any sanctions, but in compliance with the established procedure.

Labor personality is the ability of a given person (physical or legal) to be the subject of labor and directly related legal relations, to have and exercise labor rights and obligations and be responsible for labor offenses, recognized by labor legislation. In labor law, unlike, for example, civil law, legal personality includes three elements:

work capacity - the ability recognized by law to have labor rights and obligations;
labor capacity - the ability, in accordance with labor legislation, to personally acquire and exercise labor rights and obligations through their actions;
labor delinquency - the ability to be responsible for labor offenses recognized by labor legislation.

In labor law, these three legal abilities are inseparable and arise in the subject of law at the same time - from the moment of the beginning of labor activity (in civil law, for example, the emergence of legal capacity and full legal capacity have a gap in time), therefore we are talking about a single labor legal capacity in labor law, i.e. .e. legal personality.

Labor personality is characterized by two criteria:

age;
strong-willed.

It is important to know that, unlike civil legal capacity that arises from the moment of birth, labor legal personality is timed by law to attain a certain age, namely, at 16 years old. In certain cases and in the procedure provided for by the Labor Code of the Russian Federation, an employment contract can be concluded with persons under the age of 16 (Article 63 of the Labor Code of the Russian Federation of the Labor Code of the Russian Federation) in the following cases:

obtaining basic general education or continuing to master the program of basic general education in a form other than full-time;
abandonment of a general education institution in accordance with federal law.

In these cases, 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 employed:

to perform light work that does not interfere with the learning process,
in free time from school, but
obligatory with the consent of one of the parents (guardian) and the guardianship and guardianship authority.

The specified age criterion of labor personality is associated with the fact that from that time on a person becomes capable of systematic work, which is enshrined in the law (Article 63 of the Labor Code of the Russian Federation). This article also establishes that in cinematography, theater and concert organizations, circuses, with the consent of one of the parents (guardian) and the permission of the guardianship and trusteeship body, it is allowed to conclude an employment contract to participate in the creation and (or) performance (exhibiting) of works without damage to health and moral development with persons under the age of 14. In this case, the employment contract is signed by the parent (guardian) on behalf of the employee, but with the permission of the guardianship and guardianship authority.

Based on those physiological characteristics of the adolescent's body and the need for their moral education, the use of labor by persons under the age of 18 is prohibited:

at work in harmful and dangerous working conditions;
at work, the performance of which may harm their health and moral development (gambling business, work in nightclubs, bars, cabarets, etc. (Article 265 of the Labor Code of the Russian Federation).

It should be borne in mind that, along with age, labor personality is characterized by a strong-willed criterion, which is associated with the actual ability of a person to work. It is considered as physical and mental ability to work, which, however, cannot limit the equal labor personality for all.

Labor 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, for example, gender, age, nationality or property status and other circumstances, should not be discriminatory in the world of work.

Discrimination is prohibited by the Constitution of the Russian Federation, as well as forced labor is prohibited, which is reflected in the Labor Code of the Russian Federation at the level of the basic principles of labor law (Article 2).

The legal status of the subject of labor law is his legal status, determined by labor legislation. It consists of the following elements.

VLADIVOSTOKSK STATE UNIVERSITY

ECONOMY AND SERVICE

INSTITUTE OF LAW AND POLICY OF APR COUNTRIES

ECONOMIC AND LEGAL FACULTY

Department of State and Administrative Law

GRADUATE WORK

Labor relations

Checked:

Ozerina Marina Nikolaevna

candidate of legal sciences,

professor

VLADIVOSTOK

2000

p.
INTRODUCTION ................................................. .................................................. . …………………… ...	3
CHAPTER 1. GENERAL CHARACTERISTICS OF LABOR LEGAL RELATIONSHIPS …………………	5
1.1. The concept and features of the labor relationship …………………… ..	5
1.2. Differences between the employment relationship and civil law relations ……………………………………………………………………………… ..	8
CHAPTER 2. CONTENT OF LABOR RELATIONSHIP …………………………………	11
2.1 The concept of the content of the employment relationship…. ……………………….	11
2.2 Subjects of the labor relationship ………………………………………….	12
2.3. The object of the employment relationship …………………………………………….	34
2.4. Subjective rights and obligations …………………………… .. …………… ..	34
CHAPTER 3. LEGAL FACTS AFFECTING THE DYNAMICS OF EMPLOYMENT LEGAL RELATIONSHIPS ................................. ...
3.1. General characteristics of legal facts ……………………… .. ……….
3.2. Grounds for the emergence of an employment relationship ………………… ..	38
3.3. Grounds for changing the employment relationship ……………………… ...	51
3.4. Grounds for termination of the employment relationship …………………… ..	57
CONCLUSION ................................................. ........................ ... ……... .........…………………….	65
LIST OF REFERENCES................................................ ........... ……… ......... …………………… ..	67

INTRODUCTION

Considerable attention is paid to the theory of labor relations in the science of Russian labor law. But in the period of transitional economy, this theory requires certain clarifications and revision of certain provisions, taking into account the progressive reform of Russian legislation.

Today Russia is going through one of the most difficult periods in its history. The resulting collapse of the administrative-command system was largely due to economic reasons. Russia has embarked on a course of reforms and took the first steps on the chosen path. However, in the process of transition to the market, many complex problems arise, including the problems of property, organizational and legal forms of entrepreneurship, investments, profits, taxes. Of course, they are all very important elements of a market economy. But the system of market relations cannot exist without the labor market as such, and the market economy cannot exist without the use of this labor.

The level of development of society is largely determined by the effectiveness of the legal regulation of social relations. The right to work is a fundamental human right, and the state of legislation and the real state of affairs in the implementation of this right is not only an indicator of the civilization of society, but also directly affects its morality, the efficiency of its economy.

Citizens can exercise their right to work in various forms, nevertheless, the majority of the population in all countries of the world is included in the army of hired workers. The first attempts to regulate social relations in the sphere of wage labor were undertaken in the 19th century, in the era of industrial revolutions. The society and the state of that time came to understand the need to protect persons of hired labor from excessive exploitation. The goal was clear - to create a minimum of conditions for the normal reproduction of the labor force and the preservation of the health of the nation. Then the first normative acts arose that regulate the length of working hours, rest time, remuneration, labor protection, and social security.

Unfortunately, subsequently the USSR and Russia in many respects lagged behind the world level in this area, and the labor legislation itself, under the conditions of centralized regulation, was not able to perform its protective function effectively enough.

Today the situation has changed significantly, and this often leads to the other extreme - the illusion that hired labor is largely subject to the norms of civil law with its principle of freedom of contract. At the same time, it is reminded that labor law as an industry emerged from the depths of civil law. However, this approach can have far-reaching implications for a huge number of people, since in any country the majority of able-bodied citizens work precisely as employees.

People with different legal status actually work in a market economy. Employees are ready to perform this or that labor function, working under normal conditions, receiving decent wages, but at the same time not taking on the risk of entrepreneurial activity and not bearing responsibility for its results. This is the lot of owners and other participants in entrepreneurial activity.

In light of the acuteness of the problem, the relevance of the topic of labor relations as a pivotal element of the entire system of labor law does not raise doubts. Disclosure and detailed consideration all elements of the employment relationship is the purpose of this thesis.

CHAPTER 1. GENERAL CHARACTERISTICS OF LABOR

LEGAL RELATIONS

1.1. The concept and features of the labor relationship

As the analysis of modern legal literature shows, the ongoing process of reforming the Russian labor legislation necessitates constant adjustments to the definition of the concept of an employment relationship. It should be stated that the interpretations of this concept available in modern literature, in principle, have only chronological differences between themselves, caused by those changes and additions that were made, including in Art. 15 Labor Code. It contains the definition of an employment contract (contract), which is, in essence, the basis for any of the definitions of an employment relationship contained in the sources cited here. In our opinion, Article 15 of the Labor Code (including the version of the Federal Law “On Amendments and Additions to the Labor Code of the Russian Federation” dated May 6, 1998 No. 69-FZ) corresponds to the following definition of the concept of labor legal relationship:

Labor relations - this is a voluntary legal relationship between the employee and the employer regarding his work, according to which the employee undertakes to perform a certain labor function (according to the specified specialty, qualification, position) in this production, subject to its internal labor schedule, and the employer undertakes to pay for it according to the labor contribution and create working conditions in accordance with legislation, collective and labor agreements.

Here, as in Art. 15 of the Labor Code, the term “employer” has a broader meaning and includes not only the concept of a legal entity, as is the case in other definitions of an employment relationship, but also the concept of an individual.

The labor relationship has certain inherent characteristics.

1. Subject composition. In the conditions of collective (cooperative) labor of workers in the organization (at the enterprise), various social relations arise, which are regulated by such social norms, as traditions, customs, moral norms, statutes (regulations) on public associations, etc. In contrast to these social relations, labor, regulated by labor law, is legal relationship on the use of a citizen's labor as an employee. The latter is opposed by legal or individual - an organization, an individual entrepreneur, a citizen as an employer, using the labor of an employee. Thus, the subjects of labor relations, based on the above definition, are: the employee and the employer.

2. The complex composition of the rights and obligations of its subjects. This complexity is manifested as follows. Firstly, each of the subjects acts in relation to the other both as an obliged and as an authorized person; in addition, each of them bears not one, but several duties to the other. And secondly, for some duties of the employer, he is responsible himself, for others - responsibility may come from the head (director, administration), acting on behalf of the employer as a management body (for example, for the unlawful dismissal of an employee). For some responsibilities, both of them may be responsible, but different. Thus, the employer becomes financially liable in connection with compensation for harm caused to the health of the employee, and the manager (director) may be brought to disciplinary liability due to an accident that happened to the employee at work.

3. Inseparable integrity. Proceeding from the fact that the obligations of one subject of the legal relationship correspond to the rights of another, and vice versa, it is obvious that a set of mutual rights and obligations is inherent in the labor relationship. This feature is associated with another feature of the labor relationship: it covers the entire range of mutual rights and obligations of subjects in an inseparable unity, that is, despite the complex composition of rights and obligations, it is a single legal relationship .

Attempts to destroy this integrity, that is, to snatch separate combinations of rights and obligations from an inextricable complex, do not indicate the emergence of new types of legal relations (in terms of disciplinary or material responsibility), but lead to the “splitting” of a single complex labor relationship. So, the legal regulation of labor discipline does not form an independent legal relationship, but is the regulation of the way the employee performs his job. At the same time, the employer, endowed with disciplinary power, has the right to take measures aimed at maintaining the employee's performance of the specified obligation, up to bringing him to disciplinary liability in case of culpable failure to fulfill or improper performance of his job duty (commission of a disciplinary offense by the employee). In other words, the general concept of duty includes the obligation to be responsible for one's actions.

4. Lasting character ... In the labor legal relationship, the rights and obligations of the subjects are realized not by one-time actions, but systematically or periodically by performing those actions that are necessary during the established working hours (working day, shift, week, month, etc.). The performance of the labor function by the employee, subject to the internal regulations, after a certain time (two weeks or one month), causes the response of another subject. There arises the employee's right to receive payment for his work and the employer's obligation to pay the appropriate wages. This does not mean the constant emergence of new "types" of legal relations, but testifies to the continuing nature of a single labor relationship and the constant realization of the rights and obligations of its subjects.

5. The personal nature of the rights and obligations of the employee. An employee is obliged only by his own labor to participate in the production or other activities of the employer. The employee does not have the right to represent another employee in his place or to entrust his work to another, just as the employer does not have the right to replace the employee with another, except in cases established by the Law (for example, during the absence of an employee due to illness, etc.).

1.2. Differences between an employment relationship and

civil relations

Labor relations have a very specific embodiment. Each citizen who has entered into an employment contract has an employment relationship with a specific employer, which is related to work. However, labor activity is also carried out by persons who have entered into civil law contracts (personal contract, assignment, paid services, author's contract, etc.).

CHAPTER 2. CONTENT OF LABOR LEGAL RELATIONSHIP

2.1. The concept of the content of the employment relationship

From the theory of labor law it follows that content of a legal relationship , and in particular the labor relationship, is 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 it legal content ... It is also accepted to define and material content labor relationship is the behavior itself, the activities of the subjects, the actions they perform. That is, a public labor relationship takes on a legal form (becomes a labor relationship), after its participants have become subjects of the emerging legal relationship, endowed with subjective rights and obligations.

Thus, the interaction of participants in a public labor relationship appears in a legal relationship as the interaction of its subjects, their interconnection by subjective rights and obligations, when the right of one (employee) corresponds to the obligation of another (employer). The labor relationship consists of a whole range of labor rights and obligations, that is, it is a complex, but unified legal relationship and is of a continuing nature. Its subjects constantly (systematically) exercise their rights and fulfill obligations, as long as there is an employment relationship and the labor contract on the basis of which it arose is valid.

Labor relations are formed as a result of the impact of labor law, and therefore their participants are predetermined (indicated) subjective rights and obligations. Moreover, under subjective right is understood the possibility (legal measure) of an authorized person (one subject of an employment relationship) to demand from another - an obliged subject - to perform certain actions (certain behavior), protected by law. Subjective legal obligation a participant in an employment relationship is a legal measure of due behavior of an obliged person.

In other words, the subjective duty consists in the proper behavior in accordance with subjective law. Since an employment relationship always arises between specific persons on the basis of an agreement reached between them, this legal relationship is defined as a form of specific rights and obligations of its participants. In this sense, the labor relationship outlines the framework in which the behavior of its participants can be realized.

2.2. Subjects of the labor relationship

Based on Art. 15 Labor Code of the Russian Federation, subjects employment relationship are employee (natural person) and employer (natural or legal person) .

2.2.1. Worker

The concept and criteria for limiting labor personality

The 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 recognition is associated with such qualities inherent in a person as legal capacity and legal capacity.

The Constitution Russian Federation (Article 37) enshrined the right of everyone to dispose of their abilities to work, to choose their type of activity and profession. Hence it follows that any living labor requires a person's personal volitional activity and is associated with the use of his abilities for work (labor power). Only he himself has the right to dispose of these abilities and realize them, and labor duties cannot be carried out through representatives and must be performed on his own. That is, an individual is legally capable and capable at the same time. This unity is defined by the concept of “labor legal capacity”, or “labor legal personality”. Labor personality is the unified ability of an individual to be a subject of an employment relationship (as well as some other related legal relations).

The manifestation of labor personality is due to two criteria: age and strong-willed .

Unlike civil legal capacity, which arises from the moment of birth, labor legal personality is timed by law to achieve a certain age, namely 15 years. Persons studying in educational institutions who have reached the age of 14 can be employed to perform light work that does not interfere with the learning process, in their free time from school with the consent of their parents, adoptive parents or guardian (Article 173 of the Labor Code).

The age criterion of labor 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 those physiological abilities that are inherent in the body of a teenager, persons under the age of 18 are prohibited from working in harmful and dangerous conditions, benefits are established for them in the field of labor protection, and in labor legal relations they are equated in rights with adult workers.

Along with age, labor personality has a strong-willed criterion associated with the actual ability of a person to work (work ability). Usually, working capacity is considered as physical and mental abilities for work, which, however, cannot limit the equal employment legal personality for all. 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. Likewise, mentally ill people who have retained the ability to work have labor legal personality, except for cases when, due to illness, they have completely lost their ability to work (for example, they are not able to measure their actions with those of others, cannot reasonably express their will, etc.). If they have a labor personality, then they can enter into a labor relationship and be its subject.

Existing restrictions on labor personality

Citizens have equal employment legal personality. According to the Constitution of the Russian Federation, they are free to exercise their labor rights and must be free from discrimination in the world of work. Labor legislation prohibits any direct or indirect restriction of rights or the establishment of direct or indirect advantages in employment depending on gender, race, nationality, language, social origin, property status, place of residence, attitude to religion, beliefs, belonging to public associations, as well as other circumstances not related to business qualities workers (part 2 of article 16 of the Labor Code). Refusal to hire on discriminatory grounds can be challenged in court. If the fact of discrimination is recognized as proven, the court makes a decision to eliminate it and compensate the person who was subjected to discrimination, material and moral damage.

An equal labor personality for all cannot be limited by any decisions of these or those state bodies made on the basis of the law. Labor personality may be limited by a court verdict that has entered into legal force, establishing as a punishment the deprivation of the right to hold certain positions or engage in certain activities. Article 47 of the Criminal Code of the Russian Federation provides that the said deprivation of the right consists in the prohibition to hold positions in the civil service, in local government bodies, or to engage in certain professional or other activities. As the main type of punishment, deprivation of the right to hold certain positions or engage in certain activities is established for a period of one to five years, and as an additional type of punishment - for a period of six months to three years.

Restrictions on labor personality can be applied to foreign citizens and stateless persons on the basis of the law. The Constitution of the Russian Federation provides for the right of only citizens of the Russian Federation to take part in the management of state affairs (Article 32), the right to participate in the administration of justice (Article 119). According to these norms and in accordance with the Federal Laws: “On the Fundamentals of the Civil Service of the Russian Federation”, “On the Prosecutor's Office of the Russian Federation”, “On the Police”, the Customs Code of the Russian Federation and other legislative acts restrict the access of foreign citizens and stateless persons to fill public positions in public service, etc.

A different procedure has been established for attracting and using foreign labor in other types of activities and in other positions. The federal law "On employment in the Russian Federation" defines the state guarantees for the implementation of the constitutional rights of citizens of Russia to work and social protection from unemployment. First of all, the efforts of the state are aimed at ensuring the employment of citizens of the Russian Federation. Taking into account this and other important factors, a certain period of attracting foreign citizens to work is envisaged. Their hiring is possible on the basis of appropriate permits obtained by the employer, and if the foreign citizen has confirmation of the right to work (professional) activity in the Russian Federation.

This procedure, in effect in Russia today, is established by the Decree of the President of the Russian Federation of December 16, 1993 "On the attraction and use of foreign labor in the Russian Federation", which approved the corresponding "Regulations".

This Regulation contains a number of exceptions for certain categories of foreign citizens who do not require these permits and confirmations. The list of persons is given in clause 18 of the Regulations. Employers have the right not to obtain permits for the employment of foreign citizens in an organization with foreign investment, if these persons will fill the positions: the head of the organization, his deputies and heads of the organization's divisions (clause 16).

In other cases, we should not talk about labor restrictions. legal personality, but on compliance with its certain limits, dictated by the need to protect the public interest or the interests of certain categories of workers.

Thus, adolescents under the age of 18 are not allowed to work associated with material responsibility. The use of their labor is prohibited at work, the performance of which may harm the moral development of adolescents (in the gambling business, night cabarets and clubs, in the production, transportation and sale of alcoholic beverages, etc. - in accordance with Part 1 of Art. 175 of the Labor Code).

Taking into account the public interest, persons who carry bacilli are not hired in the sphere of trade and public catering until their recovery. In state and municipal organizations (enterprises), the joint service of persons who are in close relationship or property with each other is prohibited if their work is related to subordination or controllability one of them to the other (v. 20 Labor Code), etc.

When carrying out labor legal personality the specific possibilities of an individual for filling positions or performing work of a higher category of complexity are also taken into account. In such cases, the presence of special training of the person and his qualifications are required, confirmed by appropriate diplomas, certificates, other documents indicating his ability to perform this or that type of work. On this basis, when concluding an employment contract and the emergence of an employment relationship, differences, exceptions, preferences and restrictions that are determined by the requirements inherent in this type are not considered as discrimination.

Problems related to the definition of "worker"

If participants of other organizations (legal entities) perform work that goes beyond the framework of the relations of participants, and organizations carry out their activities along with other factors thanks to this work of its participants, they (such the participants) are also employees of these organizations acting as employers. In this case, a member of the organization performs work for her that does not follow from the essence of his duties as a member of the organization, but is the performance of a labor function, which must be determined by an employment contract that serves as the basis for the emergence of an employment relationship.

For all persons performing a labor function stipulated by the employment contract, on the basis of which they entered into an employment relationship, that is, for employees, in the regulation of their labor, the ratio of labor laws and labor contracts established Labor Code RF. The terms of labor contracts that worsen the situation of employees in comparison with labor legislation are invalid (part 1 of article 5 Labor Code). It does not matter where the employee works, in an organization (a legal entity of one or another organizational and legal form) or with an individual entrepreneur, and whether he is associated with this organization at the same time by the relation of participation in it. All employees are guaranteed their labor rights and social guarantees established by law at the minimum level. This level cannot be reduced by any labor contracts. Otherwise, the terms of such contracts will be invalid as they worsen the position of workers in comparison with the labor law. It is obvious that the norm of the current legislation of the Russian Federation does not provide grounds for any division of workers into "hired" and others. As already emphasized above, Art. 1 Labor Code RF establishes that “The Labor Code of the Russian Federation regulates labor relations all workers ...”" Consequently, the terms "hired labor" and "hired workers", reflecting the economic nature of these phenomena, are acceptable only when it is necessary to focus on workers who have only ability to work (labor force). In this sense, the specified terminology can serve to delimit the so-called "employees". But since there is no legal basis for the allocation of hired workers, it seems appropriate to follow the legislator to use a single term "workers".

At the same time, the Federal Law "On profess national unions, their rights and guarantees of activity "of January 20, 1996 (Article 3), a definition of the concept of" employee "is given. But it has an expansive meaning and serves only as a criterion (auxiliary means) for deciding who, being a member trade union, is included in the concept of "employee" within the meaning of this law. The employee includes: "an individual working in an organization on the basis of an employment contract (contract), a person engaged in an individual entrepreneurial activity, a person studying in an educational institution of primary, secondary or higher professional education. "

Consequently, the definition of the concept of "employee", enshrined in this law, cannot be considered as valid in all cases and in relation to other laws that have different goals and a different focus, although they are based on the same terminology. This is confirmed by the text of the above Art. 15 of the Labor Code, where an individual engaged in individual entrepreneurial activity is classified as an employer.

In other words, the term "workers" used in Labor Code RF, there is no initial basis with which to designate an employee as a subject of an employment relationship. The formulation of a concept that has a universal meaning, suitable for all persons - subjects (participants) of the labor relationship, is one of the tasks on the path of reforming labor legislation. So, to define the term "employee", the Federal Law "On Amendments and Additions to the Code of Labor Laws of the Russian Federation "" dated November 24, 1995 , revealing this concept with a sufficient degree of universality. In Art. 2 of this law, the following definition is fixed: "Worker - a person who has an employment relationship with an employer on the basis of a concluded employment contract and directly performs a labor function. "

2.2.2. Employer

Definition of the concept

To disclose the concept of "employer" given in Art. 15 of the Labor Code of the Russian Federation, the economic criterion is primarily used. It makes it possible to clarify whether a given person (natural or legal) is involved as an entrepreneur, that is, whether systematic profit, investment, risk, risk of losses, etc., are the determining factors of its production and activities. etc. Activities that determine the presence of investments, expenses, possible losses, profit, which may occur as a result of work using the labor of workers - all these are evidence that the entrepreneur is acting 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.

Various commercial and non-profit organizations - legal entities, as well as individual entrepreneurs (not being legal entities), who can use the labor of employees and, accordingly, have the status of an employer, act as a subject of labor relations with employees.

From the point of view of employees, any organization as a legal entity (regardless of its organizational and legal form), as well as an individual entrepreneur, are of interest if they are able to satisfy the supply of employees in the labor market (labor force). Specified organizations (legal entities) and an individual entrepreneur act as employers if they, experiencing the demand for labor, have and open new jobs for which they accept workers.

Unlike civil law, the legal form of legal entities (organizations) or 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 "employer the legal capacity of "future employers, connected with the provision of work to citizens, payment and labor protection.

Therefore, any organization - a legal entity can act as an employer.

Along with a legal entity (organization), an individual may act as an employer as a subject of an employment relationship. This is a citizen engaged from the moment state registration individual entrepreneurial activity without creating a legal entity. In some cases, an individual citizen may also act as an employer, inviting another citizen to work as a domestic worker, driver, gardener, etc., to use their labor only in the interests personal (consumer) economy without making a profit.

In many Federal laws - "About collective agreements and agreements "of March 11, 1992, with amendments and additions introduced by the Federal Law of November 24, 1995 No. 176-FZ;" On the procedure for resolving collective labor disputes "of November 23, 1995, etc. - the concepts of" organization "and" employer. "These concepts are given as general terms for all legal entities, regardless of their organizational and legal forms. However, in these laws, there is no formulation of the concept of" employer "as such. And although the Law" On Trade Unions, their rights and guarantees of activity "of January 12, 1996 in general contains a definition of this term, it is given for the purpose of applying this Law and does not universal which follows from the text of the law itself. So, the concept of "organization" is highlighted separately. It includes: "enterprise, institution, organization, regardless of ownership and subordination." At the same time, the term "employer" is defined as follows: "An employer is an organization (legal entity) represented by its head (administration), or an individual with whom the employee has an employment relationship."

And only the Federal Law "On Amendments and Additions to the Labor Code of the Russian Federation" dated November 24, 1995 introduced a single concept "employer" as a general term for individuals and all legal entities, regardless of their organizational and legal form. Article 1 (P. 2) of the law, instead of the words: "enterprise, institution, organization", the term "organization" is introduced, and the concepts: "administration of an enterprise, institution, organization" administration "are replaced by the term" employer ".

Employer is defined as follows: "Employer - an individual or legal entity (organization) that has entered into an employment contract with an employee " At the same time, the position of the manager is clarified (manager "The rights and obligations of the employer in labor relations with employees are carried out by the head of the organization (director, general director, etc. .), acting in accordance with laws, other regulatory legal acts and constituent documents, as well as an employment contract concluded with him (Art. 2 of the law). This definition was enshrined in the current version of Art. 15 Labor Code.

Employment capacity and its criteria

The employer as a subject (participant) of the labor relationship must have labor legal and legal capacity, which the organization acquires from the moment of its state registration as a legal entity, and a citizen - from the moment of state registration as an individual entrepreneur. The labor legal capacity and capacity of legal entities and individual entrepreneurs is to recognize their right to provide citizens with work. This legal capacity is called "employer legal capacity ", meaning in this case by" work "the employment provided to the employee by the performance of the specified labor function under the established internal labor schedule with wages and labor protection.

Labor capacity of a legal entity, in contrast to labor legal personality citizen (individual) is special ... In terms of its content, the legal capacity of an organization (legal entity) must correspond to the goals and objectives of the activity defined in its charter. Accordingly to the difference in the goals and objectives of the activities of certain organizations (legal entities), and therefore their organizational legal form, the content and scope of work capacity differ in different organizations.

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 the number of staff are set by a higher authority. And only within this limit of the number, the wage fund, they have the right to hire citizens. And for legal entities - organizations of the budgetary sphere, the state also provides for the amount 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. They are independent in determining the number of employees, they themselves approve the type and system of remuneration, structure and management bodies, plan necessary costs etc. p. In addition, they conclude employment contracts with those citizens and in the quantity that they need to fulfill the statutory tasks of organizations.

Labor capacity is determined by two criteria: operational (organizational) and property . Operational (organizational) criterion characterizes the organization's ability to implement the hiring and dismissal of employees, organize their work, create all necessary conditions labor, provision of social protection measures, observance of labor rights of workers, etc. Property criterion determines the ability to manage monetary funds (wage fund, other relevant funds), pay off employees for labor, reward them, provide other benefits related to material support.

The features that determine the legal capacity of organizations are very similar to their features as legal entities - subjects of civil law. Labor capacity is acquired by all organizations that are recognized by the current legislation as legal entities. However, the legal capacity of organizations should not be fully identified with their civil legal capacity (as legal entities). The similarity is what rightly draws attention to 0.V. Smirnov, is rather formal. If the signs of working capacity (legal personality) characterize the organization from the point of view of the subject (employer) participating in social relations that develop within the cooperation of labor, then the signs of a legal entity characterize the organization from the position of the subject of law, acting in the civil circulation of this cooperation of labor.

Of the organizations (legal entities) acting as subjects of labor legal relations (employers), one should single out cooperatives - due to their inherent features related to the restriction of the employment of citizens under an employment contract. Various agricultural cooperatives in the system of agricultural cooperation, according to the Federal Law of December 8, 1995 "On Agricultural Cooperation, can be created in the form of an agricultural production or consumer cooperative. These cooperatives are based on the voluntary association of property share contributions of their members and transfer them to the share fund of the cooperative, and also on the personal labor participation of members of the cooperative, the number of which must be at least five.

The members of the cooperative and their heirs have preemptive right to get a job in a cooperative in accordance with their specialty and qualifications. If it is impossible to provide a member of the cooperative with work, he may be temporarily granted the right to employment outside this cooperative, but without losing membership. At the same time, at least 50 percent of the volume of work in an agricultural production cooperative, according to the Law "On Agricultural Cooperation", must be performed by its members. The said cooperative, from the moment of state registration in accordance with the procedure established by the law on the registration of legal entities, also acquires legal capacity. But to attract citizens who are not members of the cooperative as employees, the following restriction is established. An employment contract may be concluded with them and an employment relationship may arise between employees and the cooperative as an employer only for the performance of no more than 50 percent of the scope of work of this cooperative. First of all, the cooperative uses the labor of its members and only then other citizens are involved as workers to perform work that cannot be performed by the members of the cooperative. With regard only to an agricultural production cooperative, the specified Federal Law defines the concept of "employee" as "a person who is not a member of the cooperative and is engaged under an employment contract (contract) to work in a certain specialty, qualification or position" (part 8 of article 1 of the Law) ...

However, consumer agricultural cooperatives, in contrast to industrial ones, have the right to hire persons from among their members, who simultaneously acquire the status of an employee of this cooperative.

Labor relations of workers in a cooperative, regardless of their form, are governed by the labor legislation of the Russian Federation, laws, other regulatory legal acts of the constituent entities of the Russian Federation (P. 2 tbsp. 40 of the Law).

Position and activity production cooperatives (artels) are regulated by the Federal Law of May 8, 1996 "On Production Cooperatives. Production cooperatives based on the personal labor and other participation of its members and the association of these members (participants) of property share contributions, acquire legal capacity from the moment of state registration of the cooperative. members of the cooperative who have made a share contribution, participating in the activities of the cooperative, but not taking personal labor participation in its activities, cannot exceed 25 percent of the number of members of the cooperative taking personal labor participation in its activities (P. 2 tbsp. 7 of the Law). In accordance with this requirement, a restriction is established for the employment of citizens who are not members of the cooperative and enter into an employment relationship with the cooperative (employer) on the basis of an employment contract, acquiring the status of employees. This Federal Law refers to these workers as "employees", although the Law does not contain any definition of this concept. Perhaps the use of such an unusual term for labor legislation is explained by the desire to emphasize in this Law the difference between the labor of workers who are not members of a cooperative (artel) from the labor of its members.

The restriction on hiring citizens under an employment contract is as follows: average for reporting period the number of these workers should not exceed 30 percent of the number of members of the production cooperative. Employees of a production cooperative are subject to labor legislation, and the board of the cooperative concludes a collective agreement with them in accordance with the procedure established by labor legislation.

So, the uniqueness of the current situation in agricultural and production cooperatives is expressed, firstly, in the restriction of hiring citizens who are not members of the cooperative, and secondly, in the fact that the members of the cooperative, in accordance with the indicated Federal Laws do not acquire the status of employees - subjects of an employment relationship. At the same time, in order to regulate the labor of cooperative members, both Federal Laws include whole blocks of norms Labor Code, other normative legal acts, which is clearly seen in the example of the Law "On production cooperatives". It establishes that members of the cooperative who take personal labor participation in the veto of activities are subject to social and compulsory health insurance and social security on an equal basis with employees of the cooperative, whose labor relations are regulated by labor legislation.

Working hours in the cooperative are included in labor seniority, and the main document on labor activity is the work book. Women in connection with the birth of a child and citizens with children are provided with appropriate leave, as well as benefits provided for by labor legislation. Cooperatives should have internal labor regulations that determine the duration and schedule of the day, work and rest, like organizations where internal labor regulations are adopted in accordance with the norms Labor Code RF.

The duration of holidays for members of the cooperative must be at least as established by the Labor Law of the Russian Federation. The cooperative is obliged to implement measures to ensure labor protection, safety, industrial hygiene and sanitation in accordance with the provisions and norms established for state unitary enterprises, that is, in accordance with the labor legislation of the Russian Federation. The cooperative independently determines the forms and systems of remuneration for the members of the cooperative and its employees; this procedure is also established in Labor Code RF (Articles 80, 81, 83, etc. .). Payment based on the provisions on remuneration developed in the cooperative is also characteristic of organizations (employers) according to Labor Code and relevant local regulations.

An indication in the Federal Law that working conditions and social guarantees for members of the cooperative can be improved (provision additional vacations and etc .), fully corresponds to Part 2 of Art. five Labor Code RF. Departures from Labor Code RF is essentially provided for by this Federal Law in two cases. Firstly, the cooperative independently establishes the types of disciplinary responsibility for its members. Secondly, disciplinary sanctions, including dismissal from office, can be imposed on the chairman of the cooperative, board members and members of the audit commission (auditor) of the cooperative only by the decision of the general meeting of the cooperative members, and on others officials - the executive body of the cooperative in accordance with the charter of the cooperative (Articles 19, 20 of the Law).

Thus, organizations (legal entities), having legal capacity, conclude an employment contract and enter into an employment relationship as an employer with those citizens (employees) that the organization needs to fulfill its statutory tasks. This "employer legal capacity "may be inherent in some organizations (for example, branches and representative offices of a legal entity) that do not have the formal legal capacity of a legal entity in the civil legal sense. They have the right act on the basis of the approved provisions, having a separate payroll fund, a current bank account, an independent balance sheet and entering on its own behalf as an employer into labor legal relations with citizens (employees). Such organizations are called "actual legal entities" in labor law.

Legal entities (organizations) exercise legal capacity through their bodies, acting in accordance with laws, other legal acts and constituent documents. In labor legal relations, the bodies of a legal entity (employer) are the head of the organization (general director, director, administration) or other bodies that, in accordance with the charter (regulation), enjoy the right to accept and dismiss employees, approve staffs, issue orders and orders that are binding on employees of the organization, and endowed with other powers in the field of organizational and management activities. The right to conclude an employment contract with employees may be delegated by the body of a legal entity to its representative by power of attorney.

The owner of the property or the body authorized by him shall have the right to appoint, elect or otherwise select the head of the organization. Thus, the head of a state and municipal unitary enterprise is appointed by the owner or by a body authorized by the owner. After all, although these enterprises belong to commercial organizations, they are not endowed with the ownership right to the property assigned to them by the owner.

In another procedure, the selection of the head (general director, director) as a single executive body and (or) collegial body (board, directorate) of the joint stock company is carried out. Today joint-stock companies are one of the most common forms of commercial organizations (legal entities), which often include not only a significant number of shareholders, but also a fairly large number of employees.

The procedure for the selection of the head and other executive bodies is determined by the Federal Law of December 26, 1995 "On joint stock companies ... The law stipulates that both civil and labor contracts can be concluded with the head and other persons of the executive bodies. The formation of these executive bodies and the early termination of their powers is carried out by decision of the general meeting of shareholders, if the charter of the company does not refer these issues to the competence of the board of directors (supervisory board) of the company (subl. 8, art. 48, subl. 10, art. 65, h. 1 p. 3 tbsp. 69 of the Law). On the basis of an employment contract, if it is 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 management board (directorate), an employment relationship arises, which has some peculiarities. The relations between the joint-stock company and the director (general director), as well as the company and members of the board (directorate), are subject to labor legislation in the part that does not contradict the provisions of the specified Federal Law (part 3, sheet 3, article 69). These provisions include the following:

a) an employment contract with these persons is concluded for a specified period;

b) the employment contract with them may be terminated ahead of schedule by decision of the general meeting, if the charter of the company does not refer the resolution of these issues to the competence of the Board of Directors (supervisory board) of the company;

c) all these persons cannot work part-time in positions in the management bodies of other organizations without the consent of the Board of Directors (Supervisory Board) of the company (subparagraph 8 of article 48, subparagraph 10 of article 65, part 4 p. 3 tbsp. 69).

The Federal Laws "On Collective Contracts and Agreements" and "On the Procedure for Resolution of Collective Labor Disputes" specify that when conducting collective bargaining and concluding collective agreements, as in resolving collective labor disputes, the employer's representative is (is) the head of the organization or person ( officials) authorized in accordance with the charter, other legal acts. The Labor Code and other regulatory legal acts of the Russian Federation contain the concept (term) "administration " , and in the legal literature, it is customary to highlight the administration as a governing body state enterprise... The administration usually includes the head (director), his deputies and assistants, chief specialists, heads of departments, workshops, other structural divisions, etc. p. The administration is always headed by a manager (director) who acts without any power of attorney on behalf of the organization, represents its interests, while he himself is associated with this organization by an employment relationship as an employee on the basis of an employment contract concluded with him.

In all cases, the manager (general director, director heading the administration, another management body or other authorized officials) exercises the rights and fulfills the duties of the employer in labor legal relations with employees or in other legal relations closely related to labor. In the interests of the organization (employer), the manager also acts without a power of attorney in accordance with laws, other regulatory legal acts, constituent documents, as well as an employment contract concluded with him. This contract specifies his rights, obligations and responsibilities, working conditions and his payment, the procedure for changing and terminating his employment relationship with the organization, other conditions and possible additional guarantees.

In some legal relations that are closely related to labor, for example, in organizational, managerial and legal relations for supervision and control, the head of an organization acts not as a representative of the employer (organization), but as an independent subject of legal relations.

2.3. Object of the labor relationship

Object employment relationship is the performance of a certain kind of work, characterized by a certain specialty, qualification, position.

The characteristic of the object of the labor relationship is currently not unambiguous, since in labor relations the object is essentially not separable from their material content (behavior of the obliged, etc.). The beneficial effect provided by the employee (giving a lecture, etc.) can be consumed, as a rule, during the production process. And since in labor law material goods (objects) are practically inseparable from the labor activity of an employee, the characteristic of the material content of labor relations exhausts the question of their object.

Under material content labor relationship is understood as the actual behavior of its participants (subjects), which is ensured by subjective labor rights and obligations. The actual is always secondary and subordinate legal (strong-willed) content labor relationship, which is formed by the subjective rights and obligations of their participants. The content of these rights and obligations is expressed in the legal ability to act, demand, claim, enjoy benefits, etc. within the boundaries established by law. and the obligation to meet the conflicting interests and needs of other actors.

2.4. Subjective rights and legal obligations

So, the labor legislation of the Russian Federation provides for the basic (statutory) rights of participants in an employment relationship. With regard to the personality of the employee, these rights and obligations in accordance with the Constitution of the Russian Federation (Articles 30, 37) are enshrined in general view in st. 2 of the Labor Code of the Russian Federation. Subjective rights and obligations that make up the content of a separate legal relationship are a specification of the specified statutory rights and obligations.

At the same time, the rights and obligations of the employer, in contrast to the employee, have not received such a clear and special definition in a specific article of the Labor Code or other federal law. Separate rights and obligations of the employer are established in many articles of the Labor Code, federal laws, local acts, can be fixed in the charters (Regulations) of the organization (legal entity), etc.

Considering that the subjective right of one participant in an employment relationship corresponds to the legal obligation of another, we will indicate here only the obligations of the subjects of an employment relationship.

TO employee responsibilities include the following:

a) the performance of a certain labor function, which is determined with the employer when concluding an employment contract (Article 15 of the Labor Code). The certainty of the labor function is ensured by Art. 24 of the Labor Code, according to which the administration of the organization does not have the right to require the employee to perform work that is not stipulated by the employment contract;

b) observance of labor discipline, submission to the internal regulations, the established working hours, use of equipment, raw materials, other property of the employer in accordance with the stipulated regulations and rules, preservation of this property, compliance with instructions and rules on labor protection, etc.

The main employer's responsibilities (organizations) can be grouped as follows:

a) observance of work according to the determined labor function and, accordingly, ensuring the actual employment of this employee with the work as an executor of the labor function, as well as creating conditions that ensure its productive performance;

b) ensuring healthy and safe environment labor stipulated by labor legislation, collective agreement and agreement of the parties;

d) meeting the social and domestic needs of the employee.

Subjective rights and obligations that make up the content of an employment relationship arising on the basis of a legal act - an employment contract, comply with the terms of this contract. The employment contract, as will be shown below, plays a fundamental role in the legal regulation of labor relations. Like any other, it has its own content - these are the conditions on which the parties reached an agreement. The content of the employment relationship, its subjective rights and obligations correspond to these agreed terms of the employment contract. Thus, the employment relationship not only arises on the basis of an employment contract (legal act): this contract also determines its content.

However, the employment relationship and the employment contract are not equal. The terms of the contract are formed in the process of its conclusion by the parties on the basis of freedom and voluntariness of labor, but should not worsen the position of employees in comparison with the legislation (part 1 of article 15 of the Labor Code). The agreed conditions, as it were, determine the scope of the content of the arising employment relationship. However, an employment contract cannot determine all of its content, all elements. A citizen, on the one hand, and an organization (legal entity) or an individual entrepreneur, on the other, when concluding an employment contract and the emergence of an employment relationship, act as individuals. It is as individuals that they act on the basis of the freedom to choose each other, the freedom to conclude an employment contract and the freedom to determine its conditions (content). At the same time, private persons cannot fully realize through the legal form of an employment contract the public-law element of the employment relationship. This public-law element consists in the establishment of a normative minimum standard of labor rights and guarantees of an employee, the deterioration of which in an employment contract leads to the invalidity of its individual conditions or the contract as a whole.

Consequently, the labor relationship, the content of which is determined by the terms of the employment contract, carries an independent essence, an independent content. The independence of the employment relationship is manifested in the legislative establishment at the minimum level of labor rights and guarantees, which imperatively predetermine a number of conditions of the employment contract.

By concluding an employment contract, the parties are not entitled to reduce the specified level of rights and guarantees (possible changes concern only its increase), just as they cannot exclude them or change them by others. This is one of the features of labor law, which testifies to its social orientation and allows us to characterize the branch of labor law in the system of Russian law as a social law.

It should be noted that it is itself based on employer's disciplinary and directive power ... The subordination of the employee 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 obligation of an employee to perform a labor function with subordination to the internal regulations is provided for by the Labor Code of the Russian Federation (Articles 2, 15 127, etc.).

CHAPTER 3. LEGAL FACTS AFFECTING THE DYNAMICS OF EMPLOYMENT LEGAL RELATIONS

3.1. General characteristics of legal facts

For the emergence, change and termination of employment legal relations, an appropriate legal fact .

Before considering the types of legal facts that determine the dynamics of labor relations, let us dwell on the characteristics of the concept and structure of the system of legal facts identified in the general theory of law.

Legal facts - these are such circumstances, such actions, such conditions to which the law attaches legal significance.

Specific life circumstances with which the norms of law associate the emergence, change, termination of legal relations, i.e. legal facts are described in the rule of law hypothesis. And in legal life they are embodied by their observance, execution, application, use by a specific subject of legal relations.

The rule of law with its hypothesis, legal fact, legal personality are the prerequisites for the emergence of a legal relationship. Their presence allows the subject to enter into a legal relationship, create it. But with some legal facts, legal relationship arises in spite of the will and desire of the subject.

Having revealed and generalized these situations, the theory of law offers the following structure of legal facts.

First of all, the theory highlights events and actions . Developments - these are legal facts that are not related to the will and desires of the subjects, but give rise to legal relationships (birth, death, natural disaster, etc.). For example, after the death of a subject, a hereditary relationship arises. Such events can be adulthood, illness, etc.

On the contrary, actions connected with the will of the subjects of legal relations. They can be lawful and unlawful ... Legitimate behavior includes legal acts and legal acts. Legal acts can be committed without a special intention to generate any legal consequences, but they occur at the will of the subject. For example, someone creates, as they joke, "imperishable" creation - poetry, song, etc. He becomes the owner of the copyright for his work, but hardly any of the young men writing poetry thinks first of all about his copyright, and not about his feelings, which he believes on paper.

But not everyone does this. Legal acts are actions that are aimed at the emergence of legal consequences. In the same situation of creative impulse, the subject may have the intention to receive a fee for his work, for this a contract is concluded with the publisher.

The theory designates such a circumstance not as legal acts, but as strong-willed legal act (an act - not as a document, but as an action), which is aimed directly at generating a legal relationship.

These legal acts are nothing more than the expression of the will of the subject, expressed in such forms as a statement, complaint, order, transaction, etc. Legal acts affect legal relations indirectly, creating them as if incidentally, spontaneously, synergistically.

You should also pay attention to the fact that determining act as a legal fact, theory has in mind and inaction as a legal fact. For example, when the subject, instead of acting, is inactive, does not fulfill his obligations, causes harm through inaction, etc. Generates legal attitudes and misconduct. Then, as a rule, a legal relationship arises between the offender and the relevant state body regarding the determination of punishment, the execution of punishment, etc.

The unlawful behavior of the subject in its extreme criminal law forms - a crime - is called act (criminal act) and is studied by the science of criminal law. In the science of civil law, an offense is designated as tort ... In the science of administrative law, administrative offense - misconduct. A labor law violation, such as a violation of discipline, is also defined as misdemeanor.

So, the scheme of legal facts looks like this zo m:

The theory also distinguishes so-called legal states ... In the legal systems of some states, estates belonged to such states, giving rise to certain legal relations. Belonging to one or another class gave rise to certain legal relations, the content of which was the provision of privileges, duties, and responsibilities to certain subjects.

The state of citizenship (nationality) also becomes a legal fact, giving rise to certain legal relations between a citizen and the state (for example, the state's duty to protect citizens, to protect them even abroad, etc.).

Arguing about legal facts, it should be noted that, according to their legal role, they can be designated as generators, changing, terminating legal relations.

In many cases, only a combination of several legal facts gives rise to a legal relationship. Such situations are designated in theory as a legal structure (the presence of several facts). For example, to receive an old-age pension need dimo reaching a certain age, seniority, application for a pension, decision of the social security body, some other conditions.

Of particular interest are such legal facts as, presumptions and fictions .

The theory of law, in addition to real facts, distinguishes those life situations, which are probabilistic in nature, can occur with varying degrees of probability. These probabilistic circumstances are the reality of the world, and the law cannot ignore them. The theory of law cannot ignore them either.

Presumptions (assumptions) have legal significance in many areas of public life. The presumption of innocence, which is enshrined in the Constitution, fundamentally determines the attitude of every citizen and law enforcement agencies. Article 62 establishes that everyone accused of committing a crime is presumed innocent until proven guilty in the manner prescribed by law and established by a court judgment that has entered into legal force.

The theory of law distinguishes between refutable and irrefutable presumptions, factual and legal presumptions.

The so-called fictions are even more complex, i.e. those actually non-existent provisions, which, however, are recognized by law as existing and having legal significance.

For example, the day of death of a citizen who is declared deceased is considered to be the day when a court decision on declaring him dead comes into force. Another fiction is the recognition that the subject did not have a criminal record if it was removed in accordance with the established procedure, etc.

Legal facts , entailing the emergence of labor relations, are called grounds them emergence ... The peculiarity of these facts is that events, offenses, a single administrative act cannot serve as such. These facts represent lawful actions (the will of the employee and the manager acting on behalf of the employer), committed in order to establish an employment relationship.

The labor relationship is based on the free expression of the will of its participants, the legal expression of which is employment contract - bilateral legal act. An employment contract as a bilateral legal act plays a very important role in the mechanism of legal regulation, it “translates” labor law norms into subjects and gives rise to an employment relationship.

As a general rule, an employment contract is the basis for the emergence of most employment legal relationships. But in some cases, legal norms link the emergence of labor legal relations not with one legal act, which is an employment contract, but with several. Together, these legal acts constitute the so-called "Complex legal structure" , which serves as the basis for the emergence of labor relations. The existence of these structures is due to the specifics of the work of certain categories of workers, the particular complexity of the work they perform, increased responsibility for their performance, etc.

The extraordinary nature of such a work activity presents enough high level requirements for persons (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 the selection of one of the applicants for the position ( contest), and in others, a candidate for the position is nominated by one or another group of people, and then, subject to the developed procedure, is elected to the position ( elections) or appointed (approved) to the position by a higher management body ( deed of appointment or approval).

Legal acts being reasons for changes labor relations are usually bilateral acts. Changing the labor function of an employee - one of the essential conditions employment contract, that is transfer to another job , requires the consent of the employee if the manager (employer) takes the initiative. With the initiative shown by the employee, the consent of the manager is required, except for some cases provided by law, when the manager (administration) is obliged to transfer the employee at his request (Articles 155, 164 of the Labor Code). An exception is the transfer of an employee without his consent at the initiative of the employer: this is possible only in case of production necessity and in connection with downtime. The Labor Code imperatively established the term for such transfers, upon expiration of which the workers return to the performance of their previous labor function.

Depending on which of the parties (subjects) of the labor relationship has taken the initiative, grounds for termination this legal relationship can be: a) agreement of the parties (mutual will, that is, the initiative of the parties); b) expression of the will of each of the parties: the initiative of the employee or the initiative of the employer (administration); c) the expression of the will (act) of a body that is not a party to the employment relationship, namely: conscription or admission of an employee to military service, a court sentencing an employee that has entered into legal force, a requirement of a trade union body (not lower than a regional one) in relation to some leading employees organizations.

Below we will dwell on a detailed description of each type of legal facts affecting the dynamics of labor legal relations, to which this chapter is actually devoted.

3.2. Grounds for the emergence of an employment relationship

3.2.1. Employment contract (contract )

In the science of Russian labor law, the labor contract is considered in various aspects: first, it is one of the central institutions of labor law, the norms of which regulate the hiring of citizens, transfers to another job and their dismissal from work; secondly, an employment contract is an organizational and legal form of providing the national economy with personnel, and thus, with its help, a labor collective is formed (created) that performs all production and social tasks of a given enterprise, institution, organization; thirdly, an employment contract serves as an organizational and legal form of distribution of labor within a given enterprise, institution, organization; and finally, fourthly, the labor agreement (contract), as indicated above, is the main basis for the emergence of labor relations and their existence in time.

An employment contract secures the contractual nature of the establishment of labor legal relations, the freedom to include citizens in the labor collective of an enterprise, institution, organization. It regulates labor relations as employment relationships that arise between employers and employees.

In the context of the transition to market relations, when competition and unemployment appear, the role and significance of the labor agreement (contract) increases sharply, since with its help hiring is carried out, and the employer seeks to hire the most qualified, experienced and productive workers.

Russian labor law contains a legal definition of an employment contract (contract). So, Art. fifteen Labor Code (as amended by the Federal Law "On Amendments and Additions to the Labor Code of the Russian Federation" dated May 6, 1998 No. 69-FZ) determines employment contract (contract) as " an agreement between the employee and the employer (individual or legal entity), according to which the employee undertakes to perform work in a certain specialty, qualification or position with subordination to the internal labor regulations, and the employer (individual or legal entity) undertakes to pay the employee wages and ensure the working conditions stipulated labor law, collective agreement and agreement of the parties. "

A number of conclusions follow from this definition.

1. An employment contract (contract) is an agreement between its parties, i.e. e. there is a mutual expression of their will, aimed at establishing an employment relationship between them.

2. The parties to it are the employee and the employer (natural or legal person).

3. An employment contract (contract) defines the main obligations of its parties.

Under content an employment contract (contract) in a broad sense understood all conditions limiting the rights and obligations of its parties by virtue of the conclusion en labor contract (contract).

However, in this case, it is necessary to distinguish the conditions: immediate the content of which is entirely determined by the contracting parties themselves, and derivatives , the content of which is not developed by the contracting parties, but is provided for in laws and other centralized and local regulations (for example, in the legislation on working hours or in local provisions on employee bonuses). Such derivative conditions when concluding an employment contract are also accepted for execution, since they are by virtue of law (Art. 15 Labor Code) make up integral part labor contract, endow it with a set of mutual rights and obligations th.

Another feature of the current definition of an employment contract is that it also includes the concept of a contract. This consolidated the legislatively dominant concept in the science of Russian labor law, which considers the contract not as an ordinary fixed-term employment contract, but as a special type of employment contract.

First, the contract is concluded with certain categories of workers. The category of workers with whom the contract is concluded include: heads of enterprises; professors, teachers and researchers of universities and research institutes; secondary school teachers; television and radio broadcasting specialists; coaches and other specialists of sports societies and some others.

In short, labor contracts are concluded with employees whose positions are directly specified in the law. True, they can also be concluded with other persons.

Second, their content is much more complete, broader and richer than the content of ordinary labor contracts. The content of the contract consists of the mutual obligations of its parties, the working conditions of employees and their payment, the responsibility of the parties for non-fulfillment of mutual obligations.

Taking into account the employer's capabilities, the contract may provide for the creation of specific social and living conditions for the employee, contributing to his successful labor activity.

At the expense of his own funds, the employer, when concluding a contract, can increase the level of the employee's working conditions in comparison with the level provided for by law. For example, an employer can provide various additional benefits and advantages in the area of \u200b\u200bwages, vacations, the establishment of free time regimes, etc.

Thus, the contract may include any contractual conditions that do not worsen the employee's position in comparison with the conditions provided for by law (Article 5 of the Labor Code).

The labor and social conditions included in the contract should be decided by the administration in conjunction with the council of the labor collective and the relevant elected trade union body.

Thirdly, in addition to the general norms on material liability, contractors, that is, persons who have entered into a contract, are subject to special norms of liability for non-performance of obligations under the contract, developed by the parties to the contract, for example, in the form of fines, forfeit, etc.

Fourthly, the early termination of the contract is made on general grounds provided for by law, as well as on additional grounds provided for in the contract itself. For example, it is terminated due to non-fulfillment of obligations within the terms established in the contract, for the disclosure of commercial secrets, etc.

Fifth, the workforce council and the relevant elected trade union body are involved in concluding the contract. In particular, such conditions of the contract as the provision of living space to the contractor, the allocation of a garden plot, the provision of his child with a place in a kindergarten, etc., may be included in the contract with the prior consent of the council of the work collective and the relevant elected trade union body.

The contract as a type of employment contract - this is an agreement between the employee and the enterprise (institution, organization), according to which the employee assumes various responsibilities related to the economic and other types of activities of the enterprise (institution, organization) with which the contract is concluded, and the achievement of certain results thereof; the enterprise (institution, organization) undertakes to pay for its labor in the amounts established by this agreement, and to provide all the conditions necessary for the performance of its successful work.

The contract is concluded in writing for up to five years. At the end of the contract, by agreement of the parties, it can be prolonged.

3.2.2. Complex legal structure of the foundation

the emergence of an employment relationship

As already mentioned (see section 3.1.), The grounds for the emergence of an employment relationship, which have a complex legal structure, include those that, in addition to the employment contract, are associated with several other legal acts. The latter include the procedures for the competition for filling vacant posts and for the election or appointment (approval) to the post by the higher management body.

Regardless of the differences and the number of legal facts included in complex legal structures, they necessarily contain an employment contract, which occupies a certain place.

Contest

So, during competitive selection at a university, an employment contract closes all other legal acts of this composition (clause 2 of article 20 of the Federal Law "On Higher and Postgraduate Professional Education"). With a face chosen by competition academic council at a university, the head (rector), on behalf of the university (faculty), concludes an employment contract, provided that the head has previously issued an appropriate management act (order) on the approval of the council's decision and on the competitive election of the person. In this case, the specified composition includes legal acts inherent in different branches of law and performed in the following sequence: 1) competition, completed by the decision of the relevant body (academic council), that is, the act of election; 2) the order of the head on the approval of the decision of the academic council (public collegial body); 3) the conclusion of an employment contract with a person elected by competition, stipulating the employee's labor function, the date of commencement of work, the amount of remuneration, etc., that is, a bilateral legal act - an agreement. A hiring order issued after the conclusion of an employment contract is not a legal act, but performs a purely design function.

Competitive selection has been established to fill some civil service positions (see: Federal Law “On the Fundamentals of Civil Service of the Russian Federation”, Regulations on holding a competition for filling a vacant civil service position in the Federal Civil Service, approved by the Decree of the President of the Russian Federation of 29.04.96) ... Admission to vacant public positions of the 2nd, 3rd, 4th and 5th groups of category "B" is preceded by a competition carried out by the relevant competition (state competition) commission, by decision of which with a person elected by competition (clause 3, article 4, clause .6 and 7 Article 21, Article 22 of the Federal Law). In this case, the decision of this commission is the basis for the appointment to the corresponding position and the conclusion of an employment contract, and the admission of a citizen is formalized by an order on his appointment to this public position (part 3, clause 6, article 21 of the Federal Law, article 17 “Regulations on the competition to fill a vacant public position of the Federal State Service). So here, too, there are three different legal acts: the decision of the competition committee (the act of election), the act of appointment to the position on the basis of the decision on the competition and the employment contract.

The competition has a number of features. It is connected with the self-nomination of a person for a position, because the announcement in the press about the competition is addressed to an indefinite circle of persons.

Election

The election is carried out by a public, collegial body and, according to its decision, the head concludes an employment contract, etc.

In contrast to the competition, in elections for a position, a candidate is nominated by groups or collectives of people, they also choose a person for the corresponding position, and the powers of the chosen person are established for a certain period. In this case, the candidate's consent to stand before the elections for the position. For example, the rector of a state or municipal university is elected for a term of up to five years by secret ballot at a general meeting (conference) in the order established by the charter of the university (act of election). Then the person elected to the position of the rector of the university is approved in the position by the relevant educational management body, which is in charge of this higher educational institution (approval certificate). In case of a reasoned refusal to approve a candidate, new elections are held. At the same time, if a candidate for the post of rector gains at least two-thirds of the votes of the total number of participants in the general meeting (conference), he must be approved without fail (see clause 3 of article 12 of the Federal Law “On Higher and Postgraduate Professional Education”). Consequently, in this complex legal factual composition, such legal acts as elections for a position and approval in a position by a higher management body, as well as, without fail, the candidate's prior consent to fill the corresponding position in elections, that is, an act expressing the will of the candidate himself for the position.

Distinctive features of this basis are the following: 1) the right to nominate candidates for an elective position belongs to groups of individuals or groups of people (employees, members of organizations, etc.), and not to the candidates themselves on the basis of nomination; 2) the indicated groups or collectives, etc. participate in the election of a candidate for a position, not being the subject (party) of the labor relationship; 3) the election of a candidate for a position in the cases established by law requires the approval of a higher management body; 4) the powers of the elected candidate are limited to the term for which he was elected, as a rule, for five years; 5) Prior free and voluntary consent to fill an election position means that the candidate agrees with all working conditions fixed in legal norms (for example, the impossibility of transferring to another job, etc.). However, in the cases established by the current legislation, constituent documents, local legal acts, an employment contract is concluded between the person elected to the position and an appropriately designated official or management body, such as, for example, when electing a director and (or) members of the board of a joint stock company; 6) upon the expiration of the election period and the end of the powers of this person, the employment relationship with him is terminated. Early termination of the employment relationship is possible on the grounds established in the Labor Code of the Russian Federation, other regulations: with the head of the enterprise - also in cases stipulated by the employment agreement (contract), in accordance with paragraph 4 of Art. 254 of the Labor Code of the Russian Federation, and with the director and (or) members of the board of a joint stock company - in the manner prescribed by the Federal Law “On Joint Stock Companies”, etc.

Appointment

When appointed to a position, an employment relationship arises from a complex legal factual composition, which, as a rule, includes an employment agreement (contract) and an act of appointment (approval) to the position. Distinctive feature emerging labor legal relationship is that the replacement of a position depends in most cases on bodies or officials who are not participants in the emerging labor relationship, most often these are higher management bodies. The person appointed to the position has a relationship with the organization where he actually performs his job function. If a person's employment relationship arises by appointing him to a position, then the appointment act (order or order - an administrative act of individual significance) predetermines the conclusion of an employment contract with this person.

There are also other complex legal factual structures - the grounds for the emergence of labor legal relations. The Labor Code of the Russian Federation does not contain indications of such compositions, highlighting only such a basis - a legal act as an employment contract (Article 15). This is due to the fact that the Code enshrines general legal norms, and not special norms covering certain categories of workers.

3.3. Grounds for changing the employment relationship

Bilateral legal acts

As already mentioned in Sec. 3.1, the grounds for changing the employment relationship are, as a rule, bilateral legal acts ... An event such as a change in the employee's labor function, i.e. transfer to another job requires the consent of each of the subjects of the labor relationship - either the employee or the employer, upon the initiative of one of the named parties. Since the legislation on transfers to another job proceeds from the stability of the terms of the employment contract (contract) and is based on the principle of the certainty of the labor function, which is one of the main conditions of the employment contract. Therefore, Art. 24 of the Labor Code prohibits the administration from requiring an employee to perform work not stipulated by the employment contract. As a general rule, employees are allowed to perform other work only with their consent (part 1 of article 25 of the Labor Code).

The legal definition of transfer to another job was developed by judicial practice. So, according to clause 12 of the resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 1992, "On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes" transfer to another job requiring the consent of the employee, it is necessary to consider the assignment to him of work that does not correspond to the specialty, qualification, position, or work, in the performance of which the amount of wages, benefits, benefits and other significant working conditions, due to the conclusion of an employment agreement (contract), change.

The basis for transfers to another job is:

1) duration of transfers;

2) place of transfers;

3) initiative in translations of the parties to the employment contract (contract).

In accordance with these grounds, transfers to another job are divided into: transfers to another permanent job and transfers to another temporary job; transfers to another job at the same enterprise, institution, organization, transfers to another enterprise, institution, organization and transfers to another locality, at least together with the enterprise, institution, organization; transfers to another job in the interests of the enterprise, institution, organization and transfers in the interests of employees. Let's consider these types of transfers in more detail.

Transfer to another permanent job at the same enterprise (in an institution, organization) is allowed only with the consent of the employee (part 1 of article 25 of the Labor Code).

The law does not establish a specific form for giving an employee's consent to transfer. Therefore, the Plenum of the Supreme Court of the Russian Federation in a resolution dated December 22, 1992 indicated that the employee's consent to transfer to another job at the same enterprise, institution, organization must be expressed in writing (paragraph 12 of the said resolution).

As a rule, the transfer to another permanent job within the enterprise takes place in connection with scientific and technological progress, which causes a change in the labor function of workers and thereby a change in place of work, as well as the improvement of labor organization, simplification of the production management structure, etc.

When reducing the number or staff of employees, the administration is obliged, if possible, to offer the employee dismissed on this basis another permanent job. With the consent of the employee, he is transferred to this job.

A similar rule about transferring to another permanent job within a given enterprise, institution, organization also applies when employees are dismissed under paragraphs 2 and 6. of Art. 33 Labor Code.

In case of transfer to another permanent underpaid work the employee retains his previous average earnings for two weeks from the date of transfer (part 1 of article 95 of the Labor Code).

In all cases of illegal transfer to another job, the employee must be reinstated in his previous job by the body considering the labor dispute (part 1 of article 213 of the Labor Code).

An employee who was illegally transferred to another job and reinstated in his previous job is paid, by decision of the body considering the labor dispute, the average earnings during the forced absence from work (if he did not start work) or the difference in earnings during the performance of lower-paid work.

When transferring an employee to another enterprise, institution, organization or together with it to another locality his consent to the translation is also required. The content of the employment agreement (contract) in this case remains the same; only the terrain in which the enterprise will be located is changed in connection with its transfer. Another locality is understood to be a different settlement according to the existing administrative-territorial division.

With such a translation, the legislation establishes certain guarantees and compensations (Art. 116 of the Labor Code). These include: payment of the cost of travel for the employee and his family members; payment of expenses for transportation of property; per diem for each day on the road; one-time allowance for the employee himself and for each family member moving; wage for the days of collection on the road and arrangement at a new place of residence, but not more than six days, as well as during the time spent on the road.

Unilateral legal acts

Such legal acts, when the transfer of an employee to another job is carried out on the initiative of one of the subjects of the employment relationship and does not require the consent of the employee or employer, are exclusively temporary in nature, and are made only in cases directly provided for by law.

Temporary transfers initiated by the employer differ from each other in terms and order of transfers and, as already mentioned, depending on the reasons for the transfers and are divided into transfers: 1) for production needs; 2) due to downtime .

These temporary transfers to another job are mandatory for employees, and refusal to comply with the administration's order on such transfers (in the absence good reason) is considered a violation of labor discipline.

Temporary transfer to another job for production needs are characterized by the following features: firstly, it is produced in the interests of a given enterprise (institution, organization); secondly, it is caused by exceptional, not foreseen in advance, circumstances affecting the normal course of production (for example, natural disasters, industrial accidents, etc.); thirdly, it differs in the payment procedure; fourthly, the term.

By virtue of Art. 26 of the Labor Code in case of production need for an enterprise, institution, organization, the administration has the right to transfer employees for up to one month to work not stipulated by an employment agreement (contract), in the same enterprise or in another enterprise, but in the same locality. According to clause 13 of the decree of the Supreme Court of the Russian Federation dated December 22, 1992, such a transition may take place without taking into account the qualifications and specialty of the employee. Temporary transfer to another job due to industrial necessity is unacceptable if it is contraindicated for health reasons of the employee.

Such a transfer is allowed: to prevent or eliminate a natural disaster, industrial accident or accidents, downtime, destruction or damage to state or public property and in other exceptional cases.

Consequently, the law does not contain a complete, exhaustive list of cases of production necessity. Therefore, transfers to another, temporary job are also possible in other cases of production activities of an enterprise, institution, organization that are of an exceptional, unforeseen nature.

Transfer to another temporary job is also allowed to replace a temporarily absent employee who is not at work due to illness, being on vacation, on a business trip, etc.

Transfer to replace a temporarily absent employee is allowed for a duration of no more than one month during a calendar year. When temporary replacement an absent worker is prohibited from transferring qualified workers to unskilled jobs (Article 28 of the Labor Code).

In all cases of transfer due to industrial necessity, workers are paid for the work performed, but not lower than the average earnings for the previous job.

Temporary transfer to another job due to downtime allowed for the entire downtime at the same enterprise and up to one month - at another enterprise, but in the same area.

Downtime is a temporary suspension of work due to production reasons (for example, lack of electricity, raw materials, materials, etc.).

In case of idle time, the transfer of qualified workers to unskilled work is not allowed (Article 27 of the Labor Code).

When transferring to a lower-paid job due to downtime, all employees who fulfill production quotas (for the job to which they were transferred) retain their average earnings from their previous job, and employees who do not fulfill these quotas or are transferred to time-paid work retain their wages rate (Art. 27 Labor Code).

The law restricts transfers to another job due to production necessity and due to downtime only in terms of time, but not in quantity. Therefore, such transfers are allowed repeatedly, as long as they do not go beyond the specified deadlines.

In addition to temporary transfers to another job at the initiative of the administration, the law provides for temporary transfers initiated by employees ... They are mainly used to protect their health. Such transfers are made in case of temporary disability of employees, due to pregnancy and women with children under the age of one and a half years, and in other cases provided by law.

Temporary transfer to another job in case of temporary disability ... According to Art. 155 of the Labor Code of workers who, for health reasons, need to provide easier work, the administration is obliged to transfer, with their consent, to such work in accordance with a medical report temporarily or without a time limit.

When transferring for health reasons to an easier, lower-paid job, the workers retain their previous average earnings for two weeks from the date of transfer (part 1 of article 156 of the Labor Code).

If due to tuberculosis or occupational disease employees are temporarily disabled in their usual work, but can, without interrupting the course of treatment, perform other work, on the basis of a medical opinion, they are temporarily transferred to another job. The need for such a transfer is established by the Medical and Social Commission (MSEC), and if there is no such commission, according to the conclusion of the attending physician, approved by the chief physician medical institution... Employees transferred in such cases to another lower-paid job receive, during the transfer, but not more than two months, a sick leave benefit in such an amount that, together with earnings, new job it did not exceed the full actual earnings from the previous job (part 2 of article 156 of the Labor Code).

If another job was not submitted by the administration within the period specified in the sick leave, then for the days missed for this reason, the allowance is paid on a general basis (part 2 of article 156 of the Labor Code).

When transferring to another lower-paid job caused by injury or other damage to health related to work and that occurred through the fault of an enterprise, institution, organization, employee (until the restoration of working capacity or the establishment of permanent incapacity for work or disability), the difference between the previous earnings and the earnings from the new job is paid (part 3 of article 156 of the Labor Code).

Temporary transfer to another job of pregnant women and women with children under the age of one and a half years ... Pregnant women, in accordance with a medical certificate, are transferred to another, lighter job, which excludes the impact of unfavorable production factors, while maintaining the average earnings from their previous job (part 1 of article 164 of the Labor Code).

Until the issue of providing a pregnant woman with another, easier job, excluding the impact of adverse production factors, is subject to release from work with the preservation of average earnings for all work days missed for this reason at the expense of the enterprise (institution, organization).

If women with children under the age of one and a half years cannot perform their previous work, they are transferred to another job with the preservation of the average earnings from the previous job until the child reaches the age of one and a half years (part 3 of article 164 of the Labor Code).

3.4. Grounds for termination of an employment relationship

As already indicated, proceeding from which of the parties (subjects) of the labor relationship has taken the initiative, the legal facts entailing the termination of this relationship are: 1) agreement of the parties (mutual will, that is, the initiative of the parties); 2) the expression of the will of each of the parties: the initiative of the employee or the initiative of the employer (administration); 3) the expression of will (act) of a body that is not a party to the employment relationship. Consequently, the first group of grounds refers to bilateral legal acts, the second to unilateral, and the third to acts of a third party (third parties).

Bilateral legal acts

Agreement of the parties to terminate the employment contract (clause 1 of article 29 of the Labor Code). Such an agreement can be reached by the parties to the employment contract as concluded on indefinite term, and for a certain period or for the duration of a certain work. Agreement of the parties is allowed at any time during the validity of the contract and does not require coordination with any authorities. Cancellation of the agreement is possible only by mutual agreement of the parties.

Conclusion by mutual expression of the will of the parties to an employment contract (contract) for a certain period or for the duration of a certain work , thereby, on the basis of an agreement, determine the time of termination of this agreement. Such grounds for termination of an employment contract as "Expiration of the contract", if it was concluded for a period or for the duration of a certain work, it is enshrined in paragraph 2 of Art. 29 of the Labor Code, but it does not work automatically. The contract is usually terminated at the initiative of the employee or employer. If after the expiration of the term of the contract, the employment relationship actually continues, and none of the parties demanded their termination, then the validity of the employment contract (contract) is considered to be continued for an indefinite period (Article 30 of the Labor Code).

Unilateral legal acts

Termination of an employment contract (contract) at the initiative of the employee.

The procedure for dismissal on the initiative (expression of will) of the employee depends on what kind of employee the labor agreement (contract) was concluded with the employer: for undefined period or fixed-term employment contract (i.e., a contract for a specific period or for the duration of a specific work).

Article 31 of the Labor Code gives the employee the right to terminate the employment contract at any time, since an agreement has been concluded with him for an indefinite period. The employee must only wish to terminate the employment contract warn in writing administration two weeks before dismissal. In cases where the employee's desire to quit is due to the inability to continue their work (for example, in connection with enrollment in an educational institution, transition to retirement, etc.), the employer must terminate the employment contract with him within the period requested by the employee.

Termination of an employment agreement (contract) at the initiative of the employer (administration).

In accordance with paragraph 1 of Art. 33 of the Labor Code provides dismissal in connection with the liquidation of an organization (enterprise, institution), reduction in the number or staff of employees ... In the current period, the liquidation of organizations or their reorganization lead to the release of a significant number of employees. Labor legislation quite clearly regulates the procedure for releasing workers. Article 40 2 of the Labor Code establishes that workers can be released from enterprises, institutions, organizations in connection with their liquidation, the implementation of measures to reduce the number or staff.

Dismissal in accordance with paragraph 2 of Art. 33 of the Labor Code is possible in the event that an employee is found to be inconsistent with the position or work performed due to insufficient qualifications or health conditions that prevent the continuation of this work.

Insufficient qualifications of the employee when creating all the necessary working conditions, it is confirmed by the facts of poor-quality performance of work, due to the employment contract. This can be expressed in the performance of work that does not meet the requirements for its quality, in systematic long delays and untimely delivery of work performed, systematic marriage or non-fulfillment of labor standards, etc.

Dismissal of an employee on this basis is possible if the shortcomings identified in the labor process indicate his inability to perform work due to insufficient special training, lack of necessary knowledge and skills, but are in no way related to his guilty failure to perform or improper performance of duties. Inconsistency due to insufficient qualifications can be established on the basis of the employee certification result by the decision of the certification commission, but its decision must be evaluated in conjunction with other data and documents. Termination of an employment contract in accordance with paragraph 2 of Art. 33 of the Labor Code is not allowed with employees who do not have the necessary experience and work skills due to short work experience (young specialists, underage workers, graduates of educational institutions, etc.).

Dismissal in accordance with paragraph 3 of Art. 33 Labor Code for systematic failure of the employee to fulfill his obligations without good reason , imposed on him by an employment agreement (contract) or by the rules of the internal labor regulations, is allowed if disciplinary or social penalties were previously applied to the employee.

Dismissal on this basis is made subject to the following conditions:

1) in case of non-fulfillment or improper performance by an employee of labor duties assigned to him by an employment contract or by the rules of the internal labor schedule, which indicates his unlawful behavior in the labor process;

2) in the presence of guilt in the actions (inaction) of the employee in the form of intent or negligence. Failure to fulfill labor duties for a good reason indicates that there is no fault and does not serve as a basis for dismissal (for example, failure to comply with labor protection standards by an employee who has not received an introductory instruction on labor protection);

3) if the failure to perform labor duties is systematic and disciplinary or social penalties were previously applied to the employee. Systematic failure to perform labor duties means that the employee has already had a disciplinary or social penalty and has violated labor duties again before the expiry of the deadline for lifting the penalties previously announced to him (if within a year from the date of application of the disciplinary penalty the employee is not subjected to a new disciplinary penalty, then he is considered not subject to disciplinary action in accordance with Art. . 1 article 137 of the Labor Code);

4) if the basis for raising the issue of dismissing the employee under paragraph 3 of Art. 33 of the Labor Code was a specific and recent failure to perform or improper performance of labor duties, for which no disciplinary or public punishment was announced to the employee. Since the basis for this dismissal is a disciplinary offense of an employee, the dismissal should be carried out in compliance with the rules and terms established for the imposition of disciplinary sanctions (Articles 135, 136 of the Labor Code).

Dismissal in accordance with paragraph 4 of Art. 33 Labor Code of the Russian Federation for absenteeism (including absence from work for more than three hours during the working day) is carried out in the absence of valid reasons.

Under truancy means the absence of an employee to work without good reason during the entire working day (work shift). Absenteeism is equal to the absence of an employee at work for more than three hours in a row or in total during the working day (work shift) without good reason. Since the list good reason absent, the administration in each specific case decides this issue, based on the explanations provided by the employee, and checking them if necessary. At the same time, there are reasons that are always recognized as valid in the absence of an employee at work, for example, a delay in returning from a business trip or vacation due to bad weather or calling an ambulance to a suddenly ill family member, a transport accident, etc.

Dismissal in accordance with paragraph 5 of Art. 33 Labor Code when the employee does not appear for work for more than four months in a row due to temporary disability, not counting maternity leave, if the legislation does not establish a longer period of retention of the place of work (position) in case of a certain disease, as a rule, it is carried out in cases where the absence of a sick employee adversely affects the production activities of the organization.

Dismissal in accordance with clause 6 of Art. 33 Labor Code due to the reinstatement of an employee who previously performed this work , is carried out, as a rule, in two cases: a) when an employee who was incorrectly dismissed or illegally transferred is reinstated at work, and the employee who occupied his place (position) is dismissed; b) the employee is subject to dismissal under clause 6 of Art. 33 of the Labor Code and in the event that a previously working employee who was called up and then released from military service within three months from the date of the call returned to his place of work, not counting the time spent on the road to travel to the place of residence.

Dismissal under clause 7 of Art. 33 Labor Code in connection with the appearance at work in a drunken state, a state of narcotic or toxic intoxication is made regardless of whether the employee was suspended from work in connection with the specified condition. It should be borne in mind that in accordance with the resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 1992 (Art. 37) under paragraph 7 of Art. 33 of the Labor Code, workers who were drunk or in a state of narcotic or toxic intoxication during working hours at the place of performance of labor duties may be dismissed. Dismissal on these grounds may also follow when the employee during working hours was in such a state not at his workplace, but hectares of the territory of the organization or facility where, on behalf of the administration, he must perform labor functions.

Drunkenness of an employee or drug or toxic intoxication can be confirmed both by a medical report and by other types of evidence, which must be appropriately assessed by the court.

Dismissal in accordance with paragraph 8 of Art. 33 Labor Code is produced for theft at the place of work (including minor) state or public property (property of the employer), established by a court verdict that has entered into legal force or by a decision of a body whose competence includes the imposition of an administrative penalty or the application of public penalties.

On this basis, employees may be dismissed, whose guilt has been established by a court verdict that has entered into force, or in respect of whom a decision has been made by the competent authority to impose a penalty or to apply a measure of social pressure. A reference to such an act must be made without fail in the order to dismiss the employee on this basis.

Legal acts involving a third party

In the cases provided for by the Labor Code of the Russian Federation (clauses 3 and 7 of Art. 29, Art. 37), an employment contract with an employee may be terminated as a result of acts (initiated) of bodies that are not a party to the contract. The need to dismiss an employee on such grounds is caused by state or public interests represented by the relevant authorities: military commissariats, courts and trade union bodies (not lower than the regional one). The acts of these bodies oblige the employer (administration) to issue an order to terminate the employment contract with the employee on one of the following grounds.

1. According to paragraph 3 of Art. 29 of the Labor Code, the basis for terminating an employment contract is conscription or admission of an employee to military service .

2. Article 37 of the Labor Code provides for the termination of an employment contract at the request of the trade union body.

3. The employment contract must be terminated in accordance with paragraph 7 of Art. 29 Labor Code upon entry into legal force of a court verdict , in which the employee is sentenced to imprisonment or other punishment excluding the possibility of continuing this work.

The considered group of legal facts is adjoined by grounds in which significant importance is attached to the will of the body that is not a party to the employment contract, and on the other - the expression of the will of the employee himself plays an important role.

These include the following grounds:

1. Transfer of an employee with his consent to another enterprise, institution, organization or transfer to an elective position (clause 5 of article 29 of the Labor Code).

To terminate the employment relationship in connection with the transfer to another organization, agreement is required between the heads of organizations at the new and previous place of work. If the manager refuses to give his consent to the transfer of the employee to another organization, the employee may resign of his own free will (according to Art. 31 or Art. 32 of the Labor Code). In this case, Part 4 of Art. 18 of the Labor Code, since he does not enter a new place of work as an employee invited by way of transfer by agreement of the heads of the two organizations.

The transfer of an employee to an elective position associated with the act of election (election) to this position terminates the previous employment contract, that is, in accordance with paragraph 5 of Art. 29 of the Labor Code is also an independent basis for dismissing employees.

2. Refusal of the employee to transfer to another locality, together with the enterprise, institution, organization, as well as refusal to continue work in connection with changes in essential working conditions (clause 6 of article 29 of the Labor Code).

Transfer of an employee to work in another locality, at least together with the organization, is possible only with the consent of the employee. Refusal of the employee from such transfer is an independent basis for the termination of the employment relationship.

Clause 6 of Art. 29 of the Labor Code also contains another independent basis - "refusal to continue work due to changes in existing working conditions." Changes in the organization of production and labor can cause a change in existing working conditions, about which, in accordance with Part 3 of Art. 25 of the Labor Code, the employee must be notified no later than two months. If the employee agrees with him, the employment contract with him is preserved. If the new working conditions of the employee are not satisfied, the employment contract is terminated in accordance with paragraph 6 of Art. 29 Labor Code.

Additional grounds for termination of an employment contract (contract) with certain categories of workers

1. One-time gross violation of labor duties by the head of the organization (branch, representative office, department and other a separate subdivision) and his deputies (clause 1 of article 254 of the Labor Code);

2. Committing guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to the loss of confidence in him on the part of the administration (clause 2 of article 254 of the Labor Code).

3. Committing by an employee performing educational functions an immoral act incompatible with the continuation of this work (clause 3 of article 254 of the Labor Code).

4. The grounds stipulated by the contract concluded with the head of the enterprise (clause 4 of article 254 of the Labor Code).

CONCLUSION

The current Labor Code was adopted in 1971. In 1992, significant amendments were made to it. Changes and additions to the Labor Code continue to the present.

The following factors affect the change in the Labor Code:

Transition of the country's economy from planned to mixed;

Introduction of various forms of ownership;

Strengthening the role of contracts in determining working conditions;

Increased social tension in labor relations;

Changing the role of trade unions in labor relations;

Abolition of the obligation of citizens to work and other circumstances.

The peculiarity of the content of the Labor Code is defined in Art. 37 of the Constitution of the Russian Federation, in which labor is proclaimed free, every citizen has the right to freely dispose of his abilities for work, to choose an occupation and profession, forced labor is prohibited.

Every person in Russia has the right to work in conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination and not lower than the minimum wage established by federal law, as well as the right to protection from unemployment.

The right to individual and collective labor disputes using the methods of their resolution established by federal legislation, including the right to strike, is recognized.

Every citizen has the right to rest. An employee under an employment contract shall be guaranteed the length of working hours, days off and holidays, paid annual leave.

The modern state policy in the field of regulation of labor relations is set out in the Program of Social Reforms in the Russian Federation for the period 1996-2000, adopted by a Government decree in 1997 ( SZ RF, 1997, No. 10, art. 1173, 2073).

As noted in the Program, the socio-economic reforms carried out in Russia have led to radical changes in the life of society: the liberalization of the economy and foreign economic activity has been carried out, the first stage of privatization has been carried out, and the system of centralized planning and management has been eliminated. The majority of the population is developing fundamentally new values \u200b\u200band guidelines, the whole complex of social conditions of life of Russians has changed.

Therefore, the adoption of the new Labor Code of the Russian Federation is not far off, the content of which is now being actively discussed by interested parties not only in the political lobbies, but also in the periodicals. The meaning of all these discussions is to find ways of reforming labor legal relations, when the achievements in this area of \u200b\u200bthe past historical period would be minimally affected, and the legislative modern realities in the development of labor legal relations as such would be taken into account as much as possible.

LIST OF USED LITERATURE

I. Normative material

Labor Code of the Russian Federation.

The Criminal Code of the Russian Federation.

Decree of the President of the Russian Federation of November 16, 1993 “On the attraction and use of foreign labor in the Russian Federation” // Collection of acts of the President and the Government of the Russian Federation. 1993. No. 51. Art. 4934.

Customs Code of the Russian Federation.

Federal Law of March 11, 1992 “On Collective Agreements and Agreements” // Bulletin of the Russian Federation. 1992. No. 17. Art. 890.

Federal Law of November 23, 1995 “On the Procedure for Permitting Collective Labor Agreements” // Collected Legislation of the Russian Federation. 1995. No. 48. Art. 4557. Federal Law of November 24, 1995 No. 182-FZ "On Amendments and Additions to the Code of Labor Laws of the Russian Federation" // Collected Legislation of the Russian Federation. 1996. No. 35. Art. 3504.

Federal Law of November 24, 1995 No. 176-FZ “On Amendments and Additions to the Federal Law on Collective Agreements and Agreements” // Collected Legislation of the Russian Federation. 1995. No. 48. Art. 4558.

Federal Law of December 8, 1995 “On Agricultural Cooperation” // Collected Legislation of the Russian Federation. 1995. No. 50. Art. 4870.

Federal Law of January 12, 1996 "On trade unions, their rights and guarantees of activity" // Collected Legislation of the Russian Federation. 1996. No. 3. Art. 148.

Federal Law of December 26, 1995 “On Joint Stock Companies” // Collected Legislation of the Russian Federation. 1996. No. 1. Art. 1.

Federal Law of May 8, 1996 “On Production Cooperatives” // Collected Legislation of the Russian Federation. 1996. No. 20. Art. 2321.

II ... Special literature

Alexandrov N.G. Labor relations. M., 1948.

Borodina V.V., Goncharov V.G. Reforming labor relations and labor code RF // Labor law. 1998. No. 3. S. 53-56.

Vlasov V.S. Fundamentals of State and Law. Yaroslavl, 1995.

Gunzburg L.Ya. Socialist labor relationship. - M., 1977.

Dmitrieva I.K. On the reform of labor legislation // Labor law. 1998. No. 3. S. 58.

Zheltov O.B. Development of legislation on labor agreements (contracts) // Bulletin of Moscow State University. Series "Right". 1995. No. 3.

Zaykin A.D. Labor agreement (contract). M., 1995.

Kaminskaya M.S. On some problems arising in the regulation of labor relations // Labor law. 1998. No. 3. S. 70-74.

Karpushin M.L. Socialist labor relationship. M., 1958.

Kashanina T.V., Kashanin A.V. Foundations of Russian law. M., 1996.

Panina A.B. Labor law: Questions and answers. M .: New Lawyer, 1998.

V.N. Protasov Legal relations as a system. M., 1991.

Russian labor law / Under. ed. HELL. Zaykin. M .: Norma, 1997.

Soviet Labor Law / Ed. N.G. Alexandrova. M., 1972.

Syrovatskaya L.A. Labor law. M., 1995.

Theory of State and Law: A Course of Lectures / Ed. M.N. Marchenko. M., 1996.

Tolkunova V.N., Gusov K.N. Labor law of Russia. Tutorial... M., 1995.

Labor agreement (contract). Practical commentary. M., 1994.

Labor law. Textbook / Ed. OV Smirnova. M., 1996.

Labor law of Russia. SPb., 1994.

Frolov O.V. Employees and employers as sides of the labor legal relationship // Man and Labor. 1999. No. 7. S. 79-80.

Khalfina R.O. General doctrine of legal relationship. M., 1974.

III. Arbitrage practice

Resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes” // Bulletin of the Supreme Court of the Russian Federation. 1993. No. 3.

Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 1, 1996 No. 68 “On some issues related to the application of part one of the Civil Code of the Russian Federation” // Bulletin of the Supreme Arbitration Court of the Russian Federation. 1996. No. 9.

See: clause 4 of Art. 37 of the Constitution of the Russian Federation; Art. 2, ch. XIV, XVII Labor Code; Federal law “On the procedure for resolving collective labor disputes”, etc.

See: Alexandrov N.G. Labor relations - M., 1948. Gintsburg L.Ya. Socialist labor relationship. - M., 1977. Karpushin M.L. Socialist labor relationship. - M., 1958; Labor law of Russia. SPb., 1994; Syrovatskaya L.A. Labor law. M., 1995; Tolkuchova V.N., Gusov K.N. Labor law of Russia. Tutorial. M., 1995; Labor law. Textbook / Ed. OV Smirnova. M., 1996; Kashanina T.V., Kashanin A.V. Foundations of Russian law. M., 1996; Russian labor law / Under. ed. HELL. Zaykin. M .: Norma, 1997; and etc.

See: A. B. Panina. Labor law: Questions and answers. Moscow: Novy Jurist, 1998.S. 33, 48-49; Russian labor law / Under. ed. HELL. Zaykin. M .: Norma, 1997.S. 104-105.

Russian labor law / Under. ed. HELL. Zaykin. M .: Norma, 1997.S. 105.

See: Labor Law of Russia. SPb., 1994; Syrovatskaya L.A. Labor law. M., 1995; Tolkuchova V.N., Gusov K.N. Labor law of Russia. Tutorial. M., 1995; Labor law. Textbook / Ed. OV Smirnova. M., 1996; Kashanina T.V., Kashanin A.V. Foundations of Russian law. M., 1996; Russian labor law / Under. ed. HELL. Zaykin. M .: Norma, 1997; and etc.

Russian labor law / Under. ed. HELL. Zaykin. M .: Norma, 1997.S. 85-86.

Collection of acts of the President and the Government of the Russian Federation. 1993. No. 51. Art. 4934.

Red N.G. Russian labor law / Under. ed. HELL. Zaykin. M .: Norma, 1997.S. 103.

Panina A.B. Labor Law: Questions and Answers. M .: Novy Jurist, 1998.S. 33, 48-49.

Russian labor law / Under. ed. HELL. Zaykin. M .: Norma, 1997.S. 105-107.

See: Khalfina R.O. General doctrine of legal relationship. M., 1974; V.N. Protasov Legal relations as a system. M., 1991; Vlasov V.S. Foundations of state and law. Yaroslavl, 1995; Theory of State and Law: A Course of Lectures / ed. M.N. Marchenko. M., 1996; and etc.

See: Employment agreement (contract). Practical commentary. M., 1994; Zheltov O.B. Development of legislation on labor agreements (contracts) // Bulletin of Moscow State University. Series "Right". 1995. No. 3; Zaykin A.D. Labor agreement (contract). M., 1995; Russian labor law / Under. ed. HELL. Zaykin. M .: Norma, 1997.S. 155-207; and etc.

Collection of legislation of the Russian Federation. 1996. No. 35. Art. 4135.

Collection of laws of the Russian Federation. No. 31. Art. 2990; SZ RF. 1996. No. 18. Art. 2115.

Bulletin of the Supreme Court of the Russian Federation. 1993. No. 3.

Russian Labor Law / Ed. HELL. Zaykin. M .: Norma, 1997.S. 181.

See: V. V. Borodina, V. G. Goncharov. Issues of reforming labor relations and the labor code of the Russian Federation // Labor law. 1998. No. 3. S. 53-56; Frolov O.V. Employees and employers as sides of the labor legal relationship // Man and Labor. 1999. No. 7. S. 79-80; Dmitrieva I.K. On the reform of labor legislation // Labor law. 1998. No. 3. S. 58; and etc.

An employment relationship is a legal relationship based on an agreement between an employee and an employer, whereby

to which one party (employee) undertakes to personally perform a certain labor function (work in a certain specialty, qualification or position), obeying the rules of the internal labor schedule established by the employer, and the other party (employer) undertakes to provide the employee with the work provided for by the labor contract, to ensure proper working conditions , as well as timely pay for the employee.

The elements of an employment relationship are its object, subjects (parties) and content, that is, the subjective rights and obligations of the parties.

The object of the employment relationship is the work function performed by the employee, paid by the employer.

The subjects of the labor relationship are the employee and the employer. An employee is an individual who has entered into an employment relationship with an employer. Employer - an individual or a legal entity (organization) that has entered into an employment relationship with an employee. In cases established by federal laws, another entity entitled to conclude employment contracts may act as an employer. Employees can be both citizens of the Russian Federation and foreign citizens, as well as stateless persons (stateless persons). On the employer's side, individuals or legal entities (organizations) participate in labor legal relations.

Subjective law is a measure of possible behavior of the subject of law secured by law. Duty is a measure of proper behavior of the subject of law. Subjective rights and obligations constitute the content of the legal relationship.

The basis for the emergence of labor legal relations are the norms contained in the sources of labor law, and legal facts.

Legal facts are real life circumstances with which the norms of objective law associate the establishment, change or termination of subjective rights and obligations (legal relations).

The most common basis for the emergence of an employment relationship is an employment contract. But sometimes it is necessary to have some other facts, that is, a legal structure is necessary, the elements of which are an employment contract and other facts that serve as the grounds for its conclusion. These legal facts of the Labor Code of the Russian Federation include: -

election (election) to office; -

election by competition to fill the relevant position; -

appointment or confirmation in office; -

Referral to work by statutory bodies on account of the established quota (such quotas can be established for the employment of disabled people, as well as minor orphans and children left without parental care); -

a court decision on the conclusion of an employment contract.