Labor relations are basic in relation to other legal relations of the social and labor sphere. An employment relationship is a legal relationship between an employee and an employer on the basis of an agreement concluded between them. employment contract, which implies the obligation of the employee to personally perform a certain labor function, follow the rules of the internal work schedule and the corresponding obligations of the employer to ensure proper working conditions, timely remuneration, etc.

An employment legal relationship is a legal form of actual labor relations of non-individual, non-independent labor, which these relations acquire after their regulation by labor law norms.

The object of the labor relationship is the benefits for which they arise, that is, first of all, the results labor activity and payroll. The subjects of labor relations are the employee and the employer. Trade unions and other representative bodies of employees are subjects not of labor relations, but of labor-related relations (organizational and managerial, social partnership, etc.).

The modern concept of labor relations is given, in fact, by the definition of an employment contract. The Labor Code of the Russian Federation is built on the concept of a single labor relationship and relations directly related to it.

Supporters of the concept of a unified labor legal relationship believe that in connection with the conclusion of an employment contract, separate non-independent legal ties arise based on it as the only basis for interaction between the employee and the employer: for receiving wages, applying disciplinary measures, obtaining a work book upon dismissal, etc. , and these are not separate legal relations of a different legal nature in the field of labor law, but an inseparable set of rights and obligations that form a single legal relationship with a complex structure.

Objecting to the fragmentation of a single labor relationship, A.V. Grebenshchikov noted that the very idea of ​​a plurality of labor relations leads to the conclusion that it is necessary to recognize individual participants in the labor process as independent subjects of legal relations with an employee, which, in principle, is not possible. They have separate powers, the scope of which is determined by the employer and fixed in job description and (or) an individual labor contract, does not at all mean the ability to act in independent legal relations as a subject opposing the employee. They themselves enter into labor relations with the employer as employees and only in this capacity are subjects of labor law. In addition, A.V. Grebenshchikov emphasized that those legal ties that are proposed to be regarded as independent legal relations, in fact, are inseparable elements of one complex labor relationship, and the above system only allows us to consider each of them in detail.

Under the labor relation, according to Art. 15 of the Labor Code of the Russian Federation, is understood as a relationship based on an agreement between an employee and an employer on the personal performance by an employee of a labor function for payment (work according to the position in accordance with staffing, professions, specialties indicating qualifications; specific type of work entrusted to the employee), subordination of the employee to the rules of the internal labor regulations, while ensuring that the employer provides the working conditions provided for labor law and other normative legal acts containing labor law norms, a collective agreement, agreements, local normative acts, an employment contract. “The performance of the labor function is carried out, as a rule, in a team, is of a reimbursable nature, that is, it must be paid in accordance with the quantity and quality of labor, and is integral part labor relations".

At the same time, one cannot agree with the decision of the legislator to consider the employment contract as the only basis for the emergence of labor relations, since in reality there are many legal facts besides it, causing the emergence of mutual rights and obligations of the parties. For the emergence of labor relations, for example, on the organization of labor (providing overalls, instructing on safe working methods), employment, there may not be an employment contract, or related to the resolution of a labor dispute, which may arise after the termination of the employment contract.

The same can be said about the temporary transfer of an employee to another organization, or about the work of persons serving a sentence of imprisonment or undergoing treatment in a psychiatric dispensary - labor relations exist without an employment contract. That is, it is wrong to indicate the employment contract as the only basis for both the actual labor and related relations, although it is the central basis for their occurrence. To resolve this issue at the legislative level, it is possible to determine in which cases the basis for their occurrence is an employment contract, and which may appear without it, except for the actual admission of the employee to work.

For labor relations, which are the subject of labor law today, the following features are characteristic:

1. Labor law regulates, as a rule, relations on the direct application of collective labor. “It is in the process of labor that people enter into relationships with each other that require legal regulation.” The employment relationship is ongoing.

2. Labor law regulates labor relations in the conditions of subordination of the contractor to the internal labor regulations in force in the organization, to the orders of the employer relating to the labor process.

3. The employee performs the assigned work personally, in accordance with his qualifications.

4. The employee is included in the social system of the organization in which he works.

5. Labor Relations are always paid, while wages are paid for the "live" labor expended and its results.

6. Labor relations are based on a combination of equality and subordination.

It should be noted that modern researchers of labor law also give other classifications of signs of an employment contract, which in principle does not change the classical approach. So, S.P. Basalaeva distinguishes: a subject sign, a sign of a labor function, a sign of a team, a personality sign, risk distribution, social sign. She also points to signs that express the legal nature of the labor contract, referring to them: the master's power, the economic dependence of the employee, limited freedom of the labor contract.

Labor relations do not exhaust the subject of labor law. It also includes closely related relations on employment, on supervision and control over compliance with labor legislation, on the consideration of individual labor disputes, relations on vocational training, retraining and advanced training of employees directly from this employer and relations on the liability of employers and employees in the labor sphere. In the legal literature, it is widely believed that these relations are part of the employment relationship. In addition, there is an expansion of the substantive issues of labor law by including in it the regulation of ensuring the rights of workers in connection with the regulation of service inventions, rationalization proposals, official works, protection of the identity of the employee, etc.

L.N. Rasputina proposes to single out the following legal relations: organizational and preparatory, control and supervisory, rule-making, for the consideration of labor disputes, incentive, protective, as well as material and intangible (organizational, procedural and procedural).

Among the organizational and preparatory, the author considers relations related to the selection, professional training and advanced training of personnel in the specialties and qualifications that this production needs, partially including legal relations for employment.

Among the control and supervisory relations are those related to the possibility of implementing specific acts of applying labor legislation, to control and supervise its observance and labor protection. labor legal legislation legal

Protective relations can be related to compensation for material damage, as well as those related to liability. Encouraging legal relations are designed to intensify production and social activities employees through recognition of merits, rewarding, honoring them for labor achievements.

New moments in the legal regulation of labor lead many lawyers to the conclusion that at present the emergence of hybrid contracts in the field of labor relations is inevitable, which will be simultaneously regulated by the norms of labor and other branches of law (civil, administrative, family). IN Lately abroad, a number of normative legal acts on labor have been adopted, which include both dependent and independent workers in their scope.

The configuration of relations for agency work implies, firstly, that within its framework civil law relations based on a contract are brought together. paid provision services (agency agency/employer), labor relations based on a labor contract (agency/employee), and administrative-legal relations between the state and agencies. Secondly, the same structuring determines that in practice each contingent worker actually has two employers - a contingent labor agency with which he has a real labor relationship.

Depending on the procedure for concluding, labor contracts are distinguished, concluded in a general manner, or in a special manner: election by competition, elections, acts of appointment or approval in a position, at the expense of an established quota, etc.

In sec. XII of the Labor Code of the Russian Federation (Labor Code of the Russian Federation), in contrast to the previously existing Labor Code, labor contracts are defined that differ depending on the categories of employees concluding them, in particular, these are labor contracts with the heads of organizations and members of the collegial executive body of the organization (Chapter 43); with part-time workers (ch. 44); with employees who have concluded an employment contract for a period of up to two months (Chapter 45); with those employed seasonal work(ch. 46); with working on a rotational basis(ch. 47); with employees working for employers - individuals (Chapter 48); with homeworkers (ch. 49); with those working in the regions of the Far North and equivalent areas (Chapter 50); with transport workers (ch. 51); with teaching staff (ch. 52); with employees sent to work in diplomatic missions and consular offices Russian Federation, as well as to representative offices of federal executive bodies and public institutions Russian Federation abroad (ch. 54); With medical workers(ch. 55); creative workers funds mass media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance of works, professional athletes (Article 351), etc.

This section of the Code reflects the trend of differentiation of legal regulation, based both on subjective criteria related to the personal characteristics of subjects entering into an employment relationship (gender, age, health status), and on objective ones (the specifics and nature of work, conditions and place of its performance, character labor relations between employee and employer, etc.). At the same time, differentiation must be objectively justified and comply with the Constitution of the Russian Federation, generally recognized principles and norms of international law, and the basic principles of legal regulation of labor relations (Articles 2-4 of the Labor Code of the Russian Federation). This is also stated in paragraph 4 of the Resolution of the Constitutional Court of the Russian Federation of December 27, 1999 N 19-P “On the case of checking the constitutionality of the provisions of paragraph 3 of Article 20 of the Federal Law “On Higher and Postgraduate Education” in connection with complaints from citizens V.P. . Malkov and Yu.A. Antropov, as well as by the request of the Vakhitovsky District Court of the city of Kazan, where it is noted that differences in the legal status of persons belonging to categories of different conditions and occupation must be objectively justified, justified and comply with constitutionally significant goals and requirements.

The experience of foreign countries is not without interest in this respect. So, in his study V.I. Vasilyeva points out that “in the legislation of Austria and France, the essential features of the legal regulation of the labor of workers in the household and their employment contract are fixed ... and the regulation of the labor of workers who have concluded an employment contract with an employer (individual or legal entity) at whose enterprise employs a small number of workers. In this regard, we can agree with the position of a number of labor scientists on the need to fix in the Labor Code of the Russian Federation the differences between an employment contract concluded by employers - individuals with domestic workers to meet their personal needs, and an employment contract concluded by employers - individual entrepreneurs using the worker's labor to carry out entrepreneurial activity. One can also agree with the opinion of scientists that the structure of Sec. XII Labor Code of the Russian Federation does not have a reasonable classification that reflects the features of all types of employment contracts, and requires further development.

It should be noted that the conclusion of civil law contracts that actually regulate labor relations between an employee and an employer is not allowed (part 2 of article 15 of the Labor Code of the Russian Federation).

The emerging imperative complements and strengthens the previously existing norm of the fourth part of Art. 11 of the Labor Code of the Russian Federation. It should be noted that arbitrage practice on the recognition of the labor nature of relations arising from the concluded civil law contract, in last years very extensive. The specified norm of the Labor Code of the Russian Federation has been repeatedly applied when considering by the courts disputes on the recognition of relations arising from contracts for the provision of services, work contracts, etc., as labor relations. However, the application of the first part of Art. 15 of the Labor Code of the Russian Federation, which defines the signs of an employment relationship, allowed the courts to make decisions on refusing to recognize the employment nature of relations if they arose from a properly concluded civil law contract.

But this does not mean a complete ban on the conclusion of civil law contracts, the subject of which is the performance of work or the provision of services, between individuals and legal entities. We are talking about an attempt to eradicate the vicious practice of artificially removing part of the staff from the labor law. Employers should be more scrupulous about the definition of the subject and other conditions of civil law contracts concluded with individuals, formulate them in such a way that it is clear from the content of the contract that the legal relations arising on its basis do not meet the signs of an employment relationship, enshrined in part one of Art. . 15 of the Labor Code of the Russian Federation.

The Concept of the new Labor Code of the Russian Federation says that the Code does not meet modern realities and does not take into account the active development of new various forms of involving citizens in labor activity, and also limits the possibility of temporary employment of workers by strict regulation of the cases of concluding fixed-term employment contracts, thereby reducing the availability the labor market for young people, the disabled, mothers with children and pensioners, etc. It also notes that the new Labor Code should resolve the problem of flexibility in the legal regulation of labor relations, the possibility of widespread use not only of standard employment contracts, but also of various contracts regulating non-standard (atypical) employment. We can agree with the developers of the Concept (no matter how this position is criticized) that the new Labor Code of the Russian Federation should reflect contracts on remote work, contracts in accordance with which the employer will be able to more flexibly meet the needs of employees during periods of improving economic conditions, increasing product demand, and Special attention should be given to agency work.

A new legal regulation of the historically established traditional institutions of the labor contract and labor relations as a whole is needed, despite the fact that their specificity, inviolability, and independence in relation to similar legal relations were initially proved. Modern economic and legal reality dictate the expediency of legislative consolidation of atypical types of labor contract and, accordingly, adjustment of views on labor relations.

Vazyagina A.S.

The concept, features, subjects and content of the labor relationship in modern legislation

There are many different relations in society - economic, political, legal, moral, spiritual, cultural, etc. Human society itself is a set of relations. All types of emerging relations between individuals and their associations are public (social) relations.
Law, regulating certain social relations, gives them a legal form, as a result they become legal.
A legal relationship is a social relationship regulated by the rules of law, the participants of which are bearers of subjective rights and obligations.

Legal relations are regulated by the norms of various branches of law, including labor law, such legal relations are understood as labor relations regulated by labor legislation and derivatives from them, directly related to them, relations on the work of employees, i.e. this is a legal connection of subjects of labor law.

Article 1 of the Labor Code of the Russian Federation defines the subject of regulation of labor law - this is, first of all, labor relations and other relations directly related to them.

Labor relations in a society reflect the nature of the production relations of a given society, since they are a volitional part of production relations. The relations of production are complex, they consist of relations of ownership of the means of production, relations of distribution, exchange, production management and labor relations. Industrial relations arise and objectively exist independently of the will of the citizen, in contrast to labor relations.
The greatest merit in the study of the theory of labor relations belongs to N.G. Alexandrov.

In his monograph "Labor Relations" N.G. Alexandrov defined the concept of “labor relationship” as follows: it is “a legal relationship that expresses comradely cooperation of people free from exploitation, in which one side (the worker) is obliged to use his labor force by joining the personnel of an enterprise (institution, economy) and submitting to the internal labor the schedule of the latter, and the other party is obliged to pay remuneration for work and to ensure conditions for the performance of work that are safe for the health of the worker and favorable for labor productivity.
Labor relations, according to another prominent scientist in the field of labor law, L.Ya. Gunzburg, can be defined as a legal expression of relations arising from labor cooperation, it connects at least two persons: an employee and an enterprise; the signs of "freedom" and "equality" constitute an integral characteristic of the worker. The legal relationship is mainly property, authoritarian in nature and involves a well-known, specifically regulated normative fixation (in law, custom, collective agreement, etc.).

Professor K.N. Gusov defines an employment relationship as a voluntary legal relationship between an employee and an employer (organization), within which the employee undertakes to perform a certain labor function (according to the specified specialty, qualification, position) subject to internal labor regulations, and the employer - to pay for his labor contribution and create working conditions in accordance with the law, collective labor agreement.

Federal Law of June 30, 2006 No. 90 - FZ made significant changes to almost all articles of the Labor Code of the Russian Federation. Among other things, changes were made to Article 15 of the Labor Code of the Russian Federation, which defines the concept of labor relations.
According to Art. 15 of the Labor Code of the Russian Federation, labor relations are relations based on an agreement between an employee and an employer on the personal performance by an employee of a labor function for pay (work according to a position in accordance with the staff list, profession, specialty, indicating qualifications; a specific type of work assigned to the employee), subordination of the employee internal labor regulations when the employer ensures the working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract.

The Labor Code deals with labor relations, although, rather, it would be necessary to talk about labor relations, since these relations are regulated by labor law.
In fact, this definition contains all the main features of an employment relationship that distinguishes it from other relations related to labor.

One of the hallmarks of an employment relationship is inclusion of a citizen in the labor collective, as a result of which he becomes an employee of a particular organization, subject to local regulations this organization. The behavior of the subjects of labor relations is regulated by the internal labor regulations of this organization, to which they are obliged to obey, and since the internal labor regulations are a local normative act that is adopted by the employer in the manner prescribed by Art. 372 of the Labor Code of the Russian Federation, they, therefore, express the will of the employer. Based on the above, the employee is subject to the will of the employer with the proviso that this will is limited by certain guarantees provided for by the current Russian legislation.

A feature of labor relations is that they are based on on a reimbursable basis. The employer is obliged to pay the employee for the work performed by him (through systematic, at least twice a month, payments) in an amount not lower than the minimum wage established by law.

The specificity of the employment relationship is that all the rights and obligations of the parties to the employment relationship are personal character. They are inextricably linked with the personality of the employee, who cannot replace himself in the performance of the labor function by someone else without the consent of the employer, just as the employer cannot replace the employee, without reason, by someone else.
Employment relationships are ongoing, that is, they exist regardless of the presence or absence of the result of the employee's work.

The concept of "labor relationship" is always the same, invariably in its subjects, content, grounds for occurrence and termination. Labor relations always have specific subjects and specific content. An employment relationship establishes a legal relationship between an employee and an enterprise. This relationship is always specific. It arises between a certain worker and a certain enterprise; when entering into an employment relationship, the labor function of the employee, the amount of remuneration for work, etc. are determined.

The subjects of labor relations are the employee and the employer. Art. 20 of the Labor Code of the Russian Federation defines the parties to labor relations as follows: “an employee is an individual who has entered into an employment relationship with an employer. The employer is an individual or entity(organization) that has entered into an employment relationship with an employee. In cases stipulated by federal laws, another entity entitled to conclude employment contracts may act as an employer. .

In order for a citizen or legal entity to be able to enter into an employment relationship, they must have labor legal personality. Employment legal personality includes labor legal capacity (the ability to have labor rights), labor legal capacity (the ability to exercise labor rights and obligations by one's actions) and labor tortiousness (the ability to be responsible for labor relations).

Labor personality is one of the elements of the legal status of subjects of labor relations, which is established current legislation for an employee over the age of 16. The legislator provides for exceptions to this general rule and allows, under certain conditions, the conclusion of an employment contract with persons over 15 years of age in order to fulfill light labor during free time from study. According to paragraph 3 of Art. 63 of the Labor Code of the Russian Federation, it is also allowed to conclude an employment contract with persons who have reached the age of 14, with the consent of one of the parents and the guardianship and guardianship authority, to perform light work that does not violate the learning process. Labor Code The Russian Federation contains a rule that allows concluding employment contracts with persons under the age of 14, subject to the consent of one of the parents and the guardianship and guardianship authority. In this case, the legislator strictly defines the circle of employers who have the opportunity to conclude employment contracts with such a category of workers (these are cinematography organizations, theaters, theater and concert organizations, circuses). Employees under the age of 14 may be involved in work only to participate in the creation and (or) performance (exhibition) of works without prejudice to health and moral development.

In addition to the age criterion, there is also the criterion of “physical condition”, that is, the physical ability of a person to enter into an employment relationship. However, the physical condition determines only the content of labor legal personality, since in fact the recognition of a person as a disabled person does not deprive him of the opportunity to work, but only limits his opportunities for employment in certain types of work.

The legal status of an employer depends on the type of employer (state or municipal enterprise, private entrepreneur, production cooperative, individual who is not individual entrepreneur) and is determined by the legislation and its charter or regulation.

The labor legal personality of the employer - organization arises from the moment of creation, i.e. government agency entries in the Unified State Register legal entities about this legal entity.

In order for the organization to be able to attract employees, the employer must approve the staffing table. Employees will be hired according to this staffing table.

In addition, the organization must have a payroll fund in order to be able to pay wages employees, remuneration for special merit, etc.
At budget institutions prerequisite the onset of labor legal personality are the approval of the staffing table and the opening of a salary account in the bank.

In addition to labor legal personality, other elements of the legal status of subjects of labor relations are the basic labor rights and obligations, legal guarantees of the basic labor rights and obligations of the employee, i.e. legal means, the measures established by the labor legislation for the optimal implementation of these rights and obligations and their protection, and the liability provided for by the legislation for violation job duties.

According to the subject composition of the right can be divided into individual and collective. Individual rights include: the right to conclude, amend and terminate an employment contract; the right to provide work stipulated by the employment contract; right to workplace corresponding to the state regulatory requirements labor protection and conditions stipulated by the employment contract; the right to timely and full payment of wages; the right to rest; the right to complete reliable information about working conditions and labor protection requirements at the workplace; vocational training, retraining and advanced training; the right to compensation for harm caused to him in connection with the performance of labor duties, and compensation for moral damage; the right to compulsory social insurance. Collective rights include: the right to association, including the right to form and join trade unions; the right to participate in the management of the organization; the right to conduct collective negotiations and conclude collective agreements and agreements through their representatives, as well as to information about the implementation of the collective agreement, agreements.

In his monograph "The legal status of an employee as a subject of labor law" V.V. Fedin expresses an opinion, with which one cannot but agree, that the right to protect one's labor rights, freedoms and legitimate interests by all not prohibited means and the right to resolve individual and collective labor disputes, including the right to strike, are of a special nature, since they can be both individual and collective .

In addition, rights can be divided into rights exercised within the framework of an employment relationship and rights exercised within the framework of a legal relationship directly related to an employment relationship. It is also possible to single out protective rights (the right to protect one's rights, freedoms and legitimate interests; the right to resolve individual and collective labor disputes; the right to compensation for harm and compensation for moral damage) and regulatory (all other rights).

Among the duties of an employee, the Labor Code identifies the following: conscientiously fulfill their labor duties assigned to him by an employment contract; observe the rules of internal labor regulations; observe labor discipline; comply with established labor standards; comply with the requirements for labor protection and ensuring labor safety; take care of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property) and other employees; immediately inform the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property).

All persons with whom an employment contract has been concluded have these statutory rights and obligations. They establish for them the limits of possible (right) and proper (duty) behavior in labor relations with the employer.

The rights and obligations of employees and the rights and obligations of the employer are inextricably interrelated, since the rights of the employee correspond to the obligations of the employer. Consequently, the duties of the employee correspond to the rights of the employer. The basic rights and obligations of the employer are contained in Article 22 of the Labor Code.

Among the rights of the employer, the Labor Code of the Russian Federation identifies the following: to conclude, amend and terminate employment contracts with employees; conduct collective negotiations and conclude collective agreements; encourage employees for conscientious efficient work; demand from employees the performance of their labor duties and careful attitude to the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property) and other employees, compliance with internal labor regulations; bring employees to disciplinary and material liability; adopt local regulations (with the exception of employers - individuals who are not individual entrepreneurs); create associations of employers in order to represent and protect their interests and join them.

The legislator has included in the obligations of the employer: to comply with labor legislation and other regulatory legal acts containing labor law norms, local regulations, terms of the collective agreement, agreements and labor contracts; provide employees with work stipulated by the employment contract; ensure safety and working conditions that comply with state regulatory requirements for labor protection; provide workers with equipment, tools, technical documentation and other means necessary for the performance of their labor duties; provide workers with equal pay for work of equal value; pay in full the wages due to employees within the time limits established in accordance with the Labor Code, the collective agreement, internal labor regulations, labor contracts; to conduct collective negotiations, as well as to conclude a collective agreement; provide representatives of employees with complete and reliable information necessary for the conclusion of a collective agreement, agreement and control over their implementation; to acquaint employees against signature with the adopted local regulations directly related to their work activities; timely comply with the instructions of the federal executive body authorized to conduct state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms, other federal executive bodies exercising the functions of control and supervision in the established field of activity, pay fines, imposed for violation of labor legislation and other normative legal acts containing labor law norms; consider submissions of relevant trade union bodies, other representatives elected by employees on revealed violations of labor legislation and other acts containing labor law norms, take measures to eliminate the identified violations and report the measures taken to these bodies and representatives; create conditions that ensure the participation of employees in the management of the organization in the forms provided for by the Labor Code, other federal laws and the collective agreement; provide for the everyday needs of employees related to the performance of their labor duties; carry out compulsory social insurance of employees; compensate for harm caused to employees in connection with the performance of their labor duties, as well as compensate for moral damage; perform other duties stipulated by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and labor contracts.

The actual activity of the employee and the employer is the material content of labor relations, which is inextricably linked and subject to volitional content, that is, the subjective rights and obligations of participants in these legal relations.
The volitional (legal) content of labor relations is formed by the subjective labor rights and obligations of their participants - employees and employers.

The subjective labor rights of employees are aimed at ensuring: actual employment with work in a particular specialty, normal conditions work and wages in accordance with its quality and quantity; labor honor and dignity of the employee.

Subjective rights are characterized by specificity, pretentiousness and relative freedom of behavior in their implementation.

Pretentiousness as one of the signs of the employee's subjective rights is ensured by the activities of other subjects (for example, the right to ensure safe and healthy working conditions, the right to demand careful treatment of the employer's property).
Another element of the content of labor relations are the obligations of the employee, enshrined in Art. 21 of the Labor Code of the Russian Federation.
Smirnov O.V. defined the labor duties of an employee as a set of due actions of employees related to the participation of their personal labor in the implementation of the tasks of the organization with which they are in labor relations.

According to the Labor Code of the Russian Federation (Article 91), an employee performs his labor duties in work time.
Labor law regulates an important aspect of social relations related to labor. It, unlike all other branches of law, one way or another affecting the relations of people and society at work, is aimed at guaranteeing the maximum number of guarantees for a person who provides his ability to work; labor law is aimed at protecting citizens when they perform work in the conditions of an individual labor relationship.

The current state of affairs in modern society, given the global economic crisis, which also affected the Russian Federation, influenced the work of most companies. Lost employers try to keep their financial costs to a minimum, including work force. Mass events are being held to reduce staff and release personnel. Many companies do not have the opportunity to pay employees the wages that were paid until recently. Employers who have retained the need to attract personnel are trying to avoid the need to provide social guarantees to their employees by using agency labor or by attracting citizens to work on the basis of a civil law contract. Highly skilled workers agree to go to work with a lower wage salary than they might have previously expected.

V.V. Fedin. Legal status of a worker as a subject of labor law: monograph. - M .: TK Velby, publishing house "Prospect", 2005.

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COURSE WORK

on the topic: "Labor Relations"

Introduction

Chapter 1. The concept and types of labor relations

1.1 Concept and features

1.2 Types of labor relations

Chapter 2. The structure of the labor relationship

2.1 Subjects of an employment relationship

2.2 The object of the employment relationship

2.3 Subjective rights and legal obligations

Chapter 3. Employee and employer, the main subjects of labor relations

3.1 An employee as a subject of an employment relationship

3.2 The employer as a subject of an employment relationship

Chapter 4. Grounds for the emergence, change and termination of an employment relationship

4.1 Grounds for the emergence of an employment relationship

4.2 Grounds for changing the employment relationship

4.3 Grounds for terminating an employment relationship

Conclusion

List of sources used

Introduction

Labor law as one of the leading branches Russian law, has the subject of regulation, public relations in the most important sphere of society - in the sphere of labor. Since labor relations occupy an important place in the life of every modern person, this topic will always be relevant.

“In order for this or that social relation to take the form of a legal relation, two conditions are required, first of all: firstly, it is necessary that the given social relation be expressed or could be expressed in acts of volitional behavior of people, and secondly, it is necessary that it was regulated by the will of the ruling class elevated to law, i.e. rules of law »

Yes indeed, general theory law connects the legal relationship with the operation of the rule of law and defines it as a social relationship regulated by the rule of law. Proceeding from this, legal relations in the field of labor law are labor relations regulated by labor legislation and derivatives from them, closely related relations. All social relations that are the subject of labor law always act in real life in the form of legal relations of this sphere, i.e. they already have labor laws in place.

When writing this work, the goal was to consider the employment relationship in all its aspects. Firstly, the very concept of a legal relationship, its features and types, secondly, the structure of an employment relationship, which includes the rights and obligations of the participants in this relationship, thirdly, consideration of the subjects of an employment relationship, separately an employee, separately an employer, and finally, grounds for the emergence, change and termination of labor relations.

All types of legal relations of labor law are volitional, i.e. arise at the will of the subjects of labor law. Each legal relationship is made up of elements: object, subject, content, grounds for occurrence and termination. By studying these concepts, we will understand the structure of the employment relationship. And, let's analyze in detail the main subjects of the labor relationship: the employee and the employer. We will also superficially touch upon other subjects of labor relations.

The subjects of legal relations in the sphere of labor, in addition to employees and employers, can be various participants: employment service bodies in legal relations to ensure employment; bodies state power and local governments as social partners in social partnership legal relations, etc.

Any of the legal relations in the sphere of labor law arises, changes and terminates. In the fourth section, we will consider the legal facts, the specific grounds that underlie the emergence, change and termination of labor relations.

It is these problems that my term paper is devoted to, in which I will try to fully disclose such a topical topic as labor relations.

All of the above proves once again that the theme of my term paper very interesting for careful consideration. And it will be interesting for me, as a future lawyer, and just a member of our society, to work with her.

employment relationship

Chapter 1. The concept and types of labor relations

1.1 Concept and features

An employment legal relationship is a social relationship regulated by labor law, based on an agreement by the employee and the employer on the personal performance by the employee of a labor function (work in a certain specialty, qualification or position) for a fee, the employee's subordination to internal regulations while the employer ensures the working conditions provided for by labor legislation , collective agreement, agreements, labor contract.

This relationship is always two-sided. Of course, for a complete characterization of any legal relationship, it is necessary:

a) establish the basis for its occurrence, change and termination

b) determine its subjective composition

c) identify its content and structure

d) show what is its object

All these topics will be reflected in my term paper. In this chapter, we will consider only the signs and types of labor relations.

Certain types of legal relations are regulated by civil law. The branch of civil law is labor law, which in turn regulates labor relations, they are the subject of labor law. The characteristic features of an employment relationship, which makes it possible to distinguish it from related legal relationships, are:

1. The personal nature of the rights and obligations of an employee who is obliged only by his labor to participate in the production or other activities of the employer. There are no such restrictions in civil law, where the contractor has the right to involve other persons in the performance of work.

2. An employee is obliged to perform a certain, predetermined labor function (work in a certain specialty, qualification or position), and not a separate individually specific task by a certain date. The latter is typical for civil law obligations related to labor activity, the purpose of which is to obtain a specific result (product) of labor, to perform a specific assignment or service by a certain date.

3. The specificity of labor relations also lies in the fact that:

- the performance of the labor function is carried out in the conditions of general (cooperative) labor;

- a citizen, as a general rule, is included in the personnel working in the organization;

- this necessitates the subordination of the employee to the internal labor regulations established by the employer.

That is, a single and complex labor relationship combines both coordination and subordination elements: freedom of labor is combined with subordination to internal regulations. This is impossible in civil law terms, based on the fundamental principles of civil law, enshrined in Art. 2 of the Civil Code of the Russian Federation.

4. The reimbursable nature of the employment relationship is manifested in the response of the employer to the performance of work - in the payment of wages, as a rule, in cash. The peculiarity of the employment relationship is that payment is made for the living labor expended, carried out by the employee systematically during the established working hours, and not for the specific result of materialized (past) labor, the performance of a specific assignment or service, as in civil law relations.

5. The complex nature of the employment relationship implies the existence of corresponding rights and obligations for each of the parties. The right of each of the subjects (employee and employer) to terminate this legal relationship without any sanctions in compliance with the procedure provided for by the Labor Legislation Chapter 13 of the Labor Code of the Russian Federation.

1.2 Types of labor relations

By exercising their rights and assuming obligations in the performance of certain work, the parties are legally bound and their actions are limited by the scope of the relevant legal regulations, i.e. participants in public relations, acting as a subject of labor law, must comply with the requirements of the current labor legislation, as well as comply with the terms of labor and collective agreements, social partnership agreements.

We already know that labor relations are volitional, arise at the will of the subjects of labor law, including on the basis of actual admission to work with the knowledge or on behalf of the employer, or his representative in the case when the employment contract was not properly executed.

The objects of labor relations are the material interest in the results of labor activity, the satisfaction of the economic and social needs of the employee and the employer, the protection of the relevant labor rights of subjects.

Such a concept of labor 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 relations differs in subjects, content, grounds for occurrence and termination.

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

Legal relations to promote employment and employment;

Labor relations between the employee and the employer;

Legal relations on the organization of labor and labor management;

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

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

Social partnership legal relations;

Legal relations for supervision and control;

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

Legal relations to resolve labor disputes;

Legal relations on social insurance.

All types of legal relations can be divided into:

Basic (labor relations);

Related and organizational and managerial (on employment, organization and management of labor, relations of trade unions for the protection of labor rights of workers, social partnership legal relations, legal relations for training, professional retraining and advanced training of personnel);

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

As we have already said, each of these legal relations differs in subjects, content, grounds for emergence and termination. For example, when considering the legal relationship to promote employment and employment, we will see that they arise when citizens are employed and recruited by employers, including through the employment service.

These legal relations, as a rule, precede labor relations, but can also follow the previous labor relations when employees are released, and also accompany labor relations, when, without terminating their legal relations with one employer, the employee is looking for a new job.

Depending on the subjects of legal relations on employment and employment, there are between:

Employment service authority and a citizen (when the latter applies to the employment service with an application for assistance in finding a job and registering the applicant as unemployed);

Employment service authority and the employer (from the moment the employer acquires legal capacity and until its liquidation);

Employed citizen and employer (upon providing the employer with a referral from the employment service body).

We will see something different when considering organizational and managerial legal relations that contribute to resolving issues related to the organization and remuneration of labor, satisfying the socio-economic interests of both labor collectives, industries, regions, and the individual employee.

These relationships arise between:

The team of employees and the employer;

The trade union body in production and the employer;

Representatives of social partners at the federal, regional, territorial, sectoral and other levels.

Organizational and managerial legal relations arise for the employee from the moment of his entry into the labor collective. These legal relationships are of a continuing nature; they arise both between the collective of workers and between the employer and trade union bodies.

The object of these legal relations is the socio-economic interests (remuneration, labor protection, etc.) of both an individual employee and a team or industry.

The subjects are representative bodies of workers in a social partnership legal relationship, representatives of employers, and in some cases, executive authorities. Social partnership legal relations arise in connection with the beginning of collective bargaining. They last until the expiration of the relevant agreements.

Chapter 2. The structure of the labor relationship

The question of the structure of the employment relationship is of particular interest due to the fact that its interpretation differs from that generally accepted in the theory of law.

In the theory of law, the civilistic approach to this problem is predominant. Usually, in legal terms, the following main elements are distinguished: 1) subjects of law, i.e. parties (participants) of the legal relationship; 2) the content of the legal relationship (material - the actual behavior of subjects and legal - subjective rights and obligations); 3) objects of legal relationship.

Trudovik lawyers do not attribute the subjects of labor relations to its structure. N.G. Aleksandrov noted back in 1948 that it was inappropriate for the subjects of an employment legal relationship to call it “elements”. An employment relationship arises between subjects, and not subjects together with it as one of the elements. In this regard, the allocation in the general part of the labor law of the relevant institution and chapter in the educational literature can be considered quite reasonable. These phenomena should not be explained solely by opportunistic, economic or methodological reasons associated with the formation of a new attitude towards the individual, democracy, with the formation of market conditions for managing.

But, despite these discrepancies, in this chapter, our term paper, we will consider all three elements of the employment relationship.

From the theory of labor law it follows that the content of the 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 its legal content. It is also customary to determine the material content of the labor relationship - this is the behavior itself, the activities of the subjects, the actions that they perform. That is, the social labor relation acquires legal form(becomes an employment 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 social labor relationship appears in a legal relationship as the interaction of its subjects, their interconnection with subjective rights and obligations, when the right of one (employee) corresponds to the duty of another (employer). An employment relationship consists of a whole range of labor rights and obligations, that is, it is a complex, but a single legal relationship and is of a continuing nature. Its subjects constantly (systematically) exercise their rights and fulfill their obligations, as long as there is an employment relationship and the employment contract on the basis of which it arose is in force.

Labor relations are formed as a result of the impact of labor law norms, and therefore their participants are predetermined (indicated) subjective rights and obligations. At the same time, subjective right is understood as a legally protected opportunity (legal measure) of an authorized person (one subject of an employment relationship) to demand from another - an obligated subject - certain actions (certain behavior). The subjective legal obligation of a participant in an employment relationship is a legal measure of the due conduct of an obligated person.

In other words, the subjective duty consists in proper behavior corresponding to the subjective right. 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.

2.1 Subjects of an employment relationship

One of the subjects of an employment relationship is always an individual - a citizen. To enter into labor legal relations, citizens must have labor legal personality. Unlike civil law, labor law does not know the independent concepts of “legal capacity” and “capacity”. This is explained by the fact that everyone who has the ability to work must carry it out with his personal volitional actions. It is impossible to perform labor duties with the help of other persons. Employment legal personality is a legal category that expresses the ability of citizens to be subjects of labor legal relations, to acquire rights by their actions and to assume obligations associated with entering into these legal relations. Such legal personality general rule, occurs from the age of 15. But there are also many such young people who, studying in general educational institutions, educational institutions of primary and secondary vocational education want to work in their free time. This gives them the opportunity not only to have a certain income, but also to better prepare for an independent working life.

Taking into account these factors, it is allowed to hire teenagers from the age of 14. It is necessary that work from this age does not affect the health of adolescents, does not disrupt the learning process. A prerequisite for hiring a teenager when he reaches the age of fourteen is the consent of his parents, adoptive parents or guardian. It is important to note that the entry into an employment relationship of persons from the age of 15 is accompanied by the establishment of benefits for them in the field of working time. They work less than adult workers. The specific length of working time is differentiated depending on age: for employees aged 16 to 18 - no more than 36 hours a week, for employees aged 15 to 16, as well as students aged 14 to 15 working during the holidays - no more than 24 hours a week. If students work in their free time (not during vacations), then the duration of their working time cannot exceed half of the working time norm established for persons of the corresponding age, i.e. for students from 14 to 16 years old - no more than 12 hours a week, and from 16 to 18 years old - no more than 18 hours a week.

Let's illustrate this point with an example. A 17-year-old law student works in the clerk's office after class. His working hours are 18 hours a week. In cases where this student works in court and vacation time, he is assigned work week duration 36 hours.

A citizen as a party to an employment relationship has various legal ties with the other side of this relationship - a legal entity. In some cases, labor relations arise between two individuals. These include cases when a citizen, as an individual entrepreneur, hires another citizen or when an employment relationship arises regarding the conduct of a household consumer economy (labor relationship with a domestic worker, with a car driver, etc.).

Legal entities are recognized as organizations that have separate property in ownership, economic management or operational management and are liable for their obligations with this property, can acquire and exercise property and personal non-property rights on their own behalf, incur obligations, be a plaintiff and defendant in court.

The legislation provides for various organizational and legal forms of a legal entity. The subject of an employment relationship can be commercial and non-profit organizations. TO commercial organizations relate business partnerships(general partnership, limited partnership, production cooperative, state and municipal unitary enterprise) and companies (limited or additional liability company, joint-stock company).

Non-Profit Organizations -- consumer cooperatives, public or religious organizations(associations), charitable and other foundations, as well as legal entities in other forms provided by law. All these organizations have labor legal personality to establish labor legal relations both with persons of hired labor and with citizens - participants in organizations. The boundaries of labor personality are flexible, since all organizations are independent in determining the number of employees and their wages. The exception is budget institutions However, they, based on the wage fund approved by him, can independently determine their number.

2.2 The object of the employment relationship

The object of the labor 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 inseparable from their material content (behavior of the obliged, etc.). The useful effect delivered by the employee (lecturing, 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.

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 factual is always secondary and is subject 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 the obligation to satisfy the mutual interests and needs of other subjects.

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 concretized statutory rights and obligations that make up the content of the legal status of employees. These rights and obligations of the subjects of labor relations will be discussed in the next section of the work.

2.3 Subjective rights and legal obligations

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

At the same time, the rights and obligations of the employer, unlike the employee, have not received such a clear and special consolidation 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, they can be enshrined in the charters (Regulations) of the organization (legal entity), etc.

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

The duties of an employee include:

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

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

The main responsibilities of the employer (organization) can be grouped as follows:

a) observance of work according to the stipulated labor function and, accordingly, ensuring the actual employment of the work of this employee as the performer of the labor function, as well as the creation of conditions that ensure its productive performance;

b) ensuring healthy and safe working conditions provided for by the labor legislation, the collective agreement and the agreement of the parties;

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

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

However, an employment relationship and an employment contract are not equivalent. The terms of the contract are formed in the process of its conclusion by the parties on the basis of freedom and voluntariness of labor, but should not worsen the position of workers in comparison with the law (part 1 of article 15 of the Labor Code). The agreed conditions, as it were, determine the scope of the content of the emerging labor 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 hand, when concluding an employment contract and establishing an employment relationship, act as private 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). However, individuals cannot fully realize through legal form of an employment contract is a public-legal element of an employment relationship. This public law element consists in establishing 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, also carries an independent essence, independent content. The independence of the labor 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.

When concluding an employment contract, the parties are not entitled to reduce the specified level of rights and guarantees (possible changes concern only its increase), nor can they exclude them or change them by others. This is one of the features of labor law, which indicates its social orientation and allows us to characterize the branch of labor law in the system of Russian law as a social right.

Attention should be paid to what is itself based on the disciplinary and directive power of the employer. The subordination of an employee is imperatively “built into” the content of an employment relationship, not allowing the specified individuals to exclude it or replace it with another condition when concluding an employment contract.

Chapter 3. Employee and employer, the main subjects of labor relations

3.1 An employee as a subject of an employment relationship

Trudeau legal status citizen as a subject of labor law is common to all citizens. It clearly reflects the differentiation of labor law of legal regulation. In addition to the general labor status, the subject of labor law may have a special labor status(woman, minor), fixed by special rules.

A citizen actually becomes a subject of labor law from the moment he finds a job, he acquires the status of an employee from the moment he is hired by a particular organization. To do this, a citizen must have legal personality.

As a general rule, the period of its onset is associated with the achievement of a biological age determined by law - 16 years. According to Art. 63 of the Labor Code of the Russian Federation for the preparation of young people for production work, it is allowed to hire persons studying in general educational institutions, educational institutions of primary and secondary vocational education who have reached the age of 14, subject to the following conditions:

1) they can be accepted only for performing light work that does not cause harm to health;

2) to perform work in their free time from study, without disrupting the learning process;

3) the consent of the parents, adoptive parents or guardians and the guardianship authority is required.

In cases of receiving general education, or continuing to master the main general education program of general education in a form of education other than full-time, or leaving in accordance with federal law general education institution, an employment contract may be concluded by persons who have reached the age of fifteen to perform light work that does not harm their health.

In cinematography organizations, theaters, theater and concert organizations, circuses, it is allowed, with the consent of one of the parents (guardian) and the permission of the guardianship and guardianship authority, to conclude an employment contract with persons under the age of fourteen years to participate in the creation and (or) performance (exhibition ) works without prejudice to health and moral development. The employment contract on behalf of the employee in this case is signed by his parent (guardian). The permission of the body of guardianship and guardianship indicates the maximum allowable duration daily work and other conditions under which the work may be performed.

Individuals who have reached the age of 18 have the right to conclude employment contracts as employers, provided that they have full civil capacity, as well as persons who have not reached the specified age, from the day they acquire civil capacity in full.

Individuals with independent income who have reached the age of 18, but limited by the court in their legal capacity, have the right, with the written consent of the trustees, to conclude employment contracts with employees for the purpose of personal service and assistance with housekeeping.

On behalf of individuals with independent income who have reached the age of 18, but recognized by the court as legally incompetent, their guardians may conclude employment contracts with employees for the purpose of personal service to these individuals and assistance to them in housekeeping.

Minors aged 14 to 18, with the exception of minors who have acquired civil capacity in full, may enter into employment contracts with employees if they have own earnings, scholarships, other income and with the written consent of their legal representatives (parents, guardians, trustees).

Legal representatives (parents, guardians, trustees) of individuals acting as employers bear additional liability for obligations arising from labor relations, including obligations to pay wages.

There are special requirements for certain categories of persons. Thus, a foreign citizen must obtain a work permit in order to work in the territory of the Russian Federation. At the same time, the employer receives permission to attract and use foreign workers.

Only a citizen of the Russian Federation who has reached the age of 18, knows the state language and meets other requirements established by current legislation has the right to enter the civil service.

The Labor Code does not establish an age limit for entering into an employment relationship; the exception is a certain range of jobs and positions. Thus, according to the Law on the State Civil Service, the age limit for holding a public position public service-- 65 years old. However, even after reaching this age, it is possible to enter into an employment relationship to perform work where there is no age limit.

Additionally, when applying for a job, a special labor legal personality is assessed, which is expressed in the degree vocational training, in the presence of a certain specialty or qualification.

In some cases, the state of health may also be a special requirement. As a rule, this is associated with the performance of work using sources of increased danger (drivers, pilots, etc.) or in production that creates increased danger for environment (Railway, nuclear power plant, etc.).

After the conclusion of an employment contract, a citizen becomes an employee, he has the legal status of an employee, expressed in the presence of certain labor relations of rights and obligations.

The basic (statutory) rights of an employee are listed in Art. 37 of the Constitution of the Russian Federation and art. 21 of the Labor Code of the Russian Federation:

Conclusion, amendment and termination of an employment contract;

Providing an employee with work stipulated by an employment contract;

Providing a workplace that meets the state regulatory requirements for labor protection and the conditions provided for by the collective agreement;

Timely and in full payment of wages in accordance with their qualifications, complexity of work, quantity and quality of work performed;

Provision of rest provided by the establishment of normal working hours, reduced working hours for certain professions and categories of workers, the provision of weekly days off, non-working holidays, paid annual holidays;

Complete reliable information about working conditions and labor protection requirements at the workplace;

Vocational training, retraining and professional development;

The right to association, including the right to form trade unions and join them to protect their labor rights, freedoms and legitimate interests;

Participation in the management of the organization;

Conducting collective negotiations and concluding collective agreements and agreements through their representatives, as well as information on the implementation of the collective agreement, agreements;

Protection of their labor rights, freedoms and legitimate interests by all means not prohibited by law;

Resolution of individual and collective labor disputes, including the right to strike;

Compensation for harm caused to him in connection with the performance of labor duties, and compensation for non-pecuniary damage;

Compulsory social insurance in cases stipulated by federal laws.

The rights of the employee, their implementation require him to respond - the fulfillment of the duties that he assumed by concluding an employment contract with the employer. In the most general form, these obligations are formulated in Art. 21 of the Labor Code of the Russian Federation. These obligations are fundamental for the application of the legal norms contained in the chapters of Part II of the Code: in Ch. 22 "Rationing of labor", Ch. 30 "Labor discipline", ch. 34 “Requirements for labor protection”, etc. The obligations provided for in the Code are specified in laws, other regulatory legal acts, in particular, in the provisions on personnel, internal labor regulations.

The main duties of an employee include:

Conscientious performance official duties;

Compliance with labor discipline, internal labor regulations and technological rules and norms;

Fulfillment of established labor standards;

Respect for the property of the employer and other employees;

Compliance with the requirements for labor protection and ensuring labor safety (safety, industrial sanitation);

Immediate notification to the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the property of the employer.

The rights and obligations of an employee, as a rule, are stipulated in the employment contract, as well as in the job description, safety instructions, internal labor regulations, and other local acts. However, in all cases they are limited to the limits of the performed labor function and cannot go beyond the limits established by the current labor legislation.

The statutory rights and obligations of an employee have legal guarantees, which are legal means enshrined in labor legislation for the implementation of these rights and obligations, as well as their protection.

3.2 The employer as a subject of an employment relationship

An employer is a natural or legal person acting as a subject of labor law when entering into an employment relationship with an employee in order to use his labor in his legitimate interests.

The legal status of an employer includes:

1) employer's legal personality;

2) basic labor rights and obligations in relation to each employee and the entire workforce.

The legal personality of the employer comes from the moment of registration in the manner prescribed by law, when he acquires the ability to conclude employment contracts. In this case, the necessary conditions will be: the availability of a wage fund, the determination of the number and staff of employees, and some others.

The main labor rights of an employer include the rights to:

Conclude, modify and terminate the employment contract;

Require an employee conscientious performance official duties, compliance with internal labor regulations, respect for property;

Encourage employees and bring them to disciplinary and financial responsibility;

Adopt local regulations.

The main job responsibilities of an employer are:

Comply with labor legislation and other regulatory legal acts containing labor law norms, local regulations, terms of the collective agreement, agreements and employment contracts;

Provide employees with work stipulated by the employment contract;

Ensure safety and working conditions that comply with state regulatory requirements for labor protection;

Provide employees with equipment, tools, technical documentation and other means necessary for the performance of their labor duties;

Provide workers with equal pay for work of equal value;

Pay in full the wages due to employees within the time limits established in accordance with the Labor Code of the Russian Federation, the collective agreement, internal labor regulations, labor contracts;

Conduct collective negotiations, as well as conclude a collective agreement in the manner prescribed by the Labor Code of the Russian Federation;

Provide representatives of employees with complete and reliable information necessary for the conclusion of a collective agreement, agreement and control over their implementation;

To acquaint employees against signature with the adopted local regulations directly related to their work activities;

Timely comply with the instructions of the federal executive body authorized to conduct state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms, other federal executive bodies exercising the functions of control and supervision in the established field of activity, pay fines, imposed for violations of labor legislation and other regulatory legal acts containing labor law norms;

Consider the submissions of the relevant trade union bodies, other representatives elected by employees about the identified violations of labor legislation and other acts containing labor law norms, take measures to eliminate the identified violations and report the measures taken to these bodies and representatives;

Create conditions that ensure the participation of employees in the management of the organization in the forms provided for by the Labor Code of the Russian Federation, other federal laws and the collective agreement;

Provide for the everyday needs of employees related to the performance of their labor duties;

Carry out compulsory social insurance of employees in the manner prescribed by federal laws;

Compensate for harm caused to employees in connection with the performance of their labor duties, as well as compensate for moral damage in the manner and on the terms established by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation;

Perform other duties stipulated by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and labor contracts.

In all cases, the employer must strictly comply with the requirements of the current labor legislation, under which additional obligations may be assigned to the employer. For example, a collective agreement may provide for the obligation of the employer to provide additional days for the next vacation, establish salary bonuses for the length of service in a particular organization, etc.

Depending on the content and nature of the rights and obligations of the employer, his legal status is determined by the presence of rule-making power (adoption of local regulations), administrative-dispositive power (issuance of binding orders regarding the performance of labor duties), disciplinary power (application of incentives, measures of disciplinary and financial responsibility).

On behalf of the employer, the head of the relevant organization and its administration enter into labor relations. For the obligations of employers-institutions, financed in whole or in part by the owner (founder), as well as employers of state-owned enterprises, arising from labor relations, the owner (founder) bears additional responsibility in accordance with federal laws and other regulatory legal acts of the Russian Federation.

The head of the organization has his own status: he issues orders and instructions (mandatory for all employees this enterprise), enjoys the right to accept and dismiss, etc. At the same time, he himself performs labor functions, a contract is concluded with him, which stipulates his rights, duties and responsibilities, the term, procedure and amount of remuneration, grounds for dismissal (including additional ones).

In addition to the rights and obligations indicated above, there are also some features related to employers of individuals.

Individual employers are individuals registered in in due course as individual entrepreneurs and carrying out entrepreneurial activity without forming a legal entity, as well as private notaries, lawyers who have established law offices, and other persons whose professional activity subject to federal law state registration and (or) licensing, entered into labor relations with employees in order to carry out the specified activities (hereinafter referred to as employers - individual entrepreneurs). Individuals who, in violation of the requirements of federal laws, carry out the specified activity without state registration and (or) licensing, who have entered into labor relations with employees in order to carry out this activity, are not exempt from the obligations imposed by the Labor Code on employers - individual entrepreneurs; individuals who enter into an employment relationship with employees for the purposes of personal service and household assistance.

An employer - an individual draws up an employment contract with an employee in writing, and must:

Register this agreement with the relevant local government;

Bring in insurance premiums and other mandatory payments in the manner and amount determined by federal laws;

Issue insurance certificates of state pension insurance for persons entering the workforce for the first time.

A document confirming the time of work with the employer - individual, is a written employment contract (Article 309 of the Labor Code of the Russian Federation). The employer - an individual who is not an individual entrepreneur, does not have the right to make entries in the work books of employees, as well as draw up work books first-time employees.

Among employers, in addition to legal entities and individuals, another entity is named, endowed with established by law the right to conclude employment contracts. Such a subject may be, for example, a local self-government body, if this is indicated in the federal law.

The Labor Code names legal entities as employers, therefore, branches, representative offices cannot be employers. According to Art. 55 of the Civil Code of the Russian Federation branches, representative offices are not legal entities. They are endowed with property by the legal entity that created them, and act on the basis of the provisions approved by it. Their leaders, speaking in civil circulation, act by proxy of a legal entity.

The head of a branch or representative office may have a power of attorney giving him the right to hire and dismiss employees, however, in this case, the branch or representative office is not an employer. The employer in relation to the employees of the branch, representative office is a legal entity, on behalf of which the head of the branch, representative office exercises the authority to conclude an employment contract and terminate it. If the head of the branch, representative office is not authorized to hire, labor relations with employees of the branch, representative office arise on the basis of an employment contract concluded by the legal entity itself.

Chapter 4. Grounds for the emergence, change and termination of an employment relationship

4.1 Grounds for the emergence of labor

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

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

As a general rule, an employment contract is the basis for the emergence of most labor relations. The legal significance of a particular labor agreement (contract) lies in the fact that it acts as the basis for the existence and development of legal relations for the use of workers' labor. This is expressed as follows. Firstly, an employment contract is the most common basis for the emergence of labor relations between employees and specific enterprises, institutions, and organizations. Secondly, labor relations exist in time by virtue of the concluded labor contract. The employment contract is legal basis those interdependent actions of its parties, which must be performed by the parties systematically or periodically in order to realize in time their rights and to fulfill the obligations assumed. The systematic or periodic exercise of rights and obligations is characteristic of a legal relationship generated by an employment contract as a continuing one, in which rights and obligations are designed for long-term coordination of the behavior of the parties. Thirdly, the employment contract individualizes the place of work (enterprise, institution, organization with which the employment contract is concluded), and the type of work (specialty, qualification or position) of the worker as a subject of an employment relationship. An employment contract can individualize for a given citizen other conditions of an employment relationship, however, with the restriction that the terms of the contract that worsen the position of workers in comparison with labor legislation are invalid (Article 5 of the Labor Code).

However, it is necessary to distinguish between conditions: direct, the content of which is entirely determined by the contracting parties themselves, and derivatives, the content of which is not developed by the contracting parties, but is provided for in laws and other centralized and local regulations (for example, in the legislation on working hours or in local regulations about bonuses for employees). Such derivative conditions at the conclusion of an employment contract are also accepted for fulfillment, since by virtue of the law (Article 15 of the Labor Code) they constitute an integral part of the employment contract, endowing its parties with a set of mutual rights and obligations.

A feature of the current definition of an employment contract is also that it also includes the concept of a contract. This fixed 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 special kind labor contract.

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Question 19.20. The concept and system of legal relations in the field of employment.

Labor relations are regulated by the norms of labor law and act in the form of labor relations.

Employment relationship- this is an employment relationship arising on the basis of an employment contract and regulated by labor law, according to which one subject - an employee undertakes to perform a labor function subject to the rules of internal labor regulations, and the other subject - an employer is obliged to provide work stipulated by this contract, ensure healthy, safe and other working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, including remuneration of an employee in accordance with his qualifications, complexity of work, quantity and quality of labor.

Features of the employment relationship:

1) the subjects (parties) of an employment relationship are always the employee and the employer;

3) the employment relationship is of a continuing nature, the rights and obligations of the parties are implemented systematically in the process of labor activity in the field of the use of non-self-employed labor;

Complementary employment relationships, as a rule, exist together with the main employment relationship. But the appearance of related ones depends on the occurrence of specific legal facts (committing a disciplinary offense, causing damage to an employee or employer, etc.).

Since an individual can realize his abilities not only by concluding an employment contract, but also using civil law contracts (personal contract, assignment, paid services, and others). It is necessary to take into account the distinctive features of an employment relationship from civil law and other relations arising from the use of labor. As the main characteristic of labor relations in the field of the use of dependent labor, the following features are distinguished.

1. The subject of an employment relationship is the very process of labor activity for a certain labor function in common organization labor existing within the organization, the employer - an individual. The subject of civil law labor relations is the result of labor (construction of an object, delivery of cargo to its destination, writing a book, developing an invention, a computer program, etc.).

2. Having concluded an employment contract (that is, in the event of an employment relationship), the employee is obliged to obey the internal labor regulations of a particular organization established by the employer, observe labor and technological discipline, bear disciplinary or liability for their violations. What is not in civil law relations. The employee works to achieve the final result at his own peril and risk.

3. The conclusion of an employment contract involves the performance of a labor function - work according to the position in accordance with the staff list, profession, specialty, indicating qualifications; specific type of work entrusted to the employee, as a rule, by his personal labor. The exception is work at home and in small retail trade, where an employee may involve family members in the performance of his work. In civil law relations, the customer is not interested in who and how will fulfill the order, since only the end result is important to him.

4. An employer using the work of an employee on the basis of an employment contract is obliged to create healthy and safe conditions labor, comply with labor legislation, including labor protection legislation. This obligation is not always assigned to the customer in civil law relations.

5. The employee and the employer have the right to terminate the employment contract (termination of the employment relationship) without any sanctions, in compliance with the legal procedures established by law. At the same time, the employer is obliged to warn the employee about dismissal in cases provided for by labor legislation, as well as to pay severance pay and other compensation. In case of non-compliance with the terms of a civil law contract, sanctions may be applied to the parties.

6. The presence of labor relations implies the systematic (as a rule, at least twice a month) payment of wages in accordance with the labor expended, carried out by the employee during the established working hours. Civil-law labor relations, as a rule, involve remuneration for labor according to the final result. The amount of payment is determined arbitrarily by the customer and the contractor. It does not depend on the duration of the working time spent by the performer.

Types of labor relations depend on the types of relevant labor relations, the type of labor contract underlying the emergence, change, existence and termination of the labor relationship, the form of ownership on which they arise, the organizational and legal form of the organization (employer), the area in which the implementation of the labor relationship will take place . That is, there are as many types of labor relations as there are types of employment contracts. Within the framework of one organization (employer), there may be several types of employment contracts, and, consequently, labor relations.

Based on the scope of the employment contract, labor relations can be classified into realizable: in the regions of the Far North; in diplomatic missions and consulates.

Depending on the legal form they can be subdivided into labor relations arising, in: joint-stock companies, partnerships, production cooperatives, unitary and state enterprises; and, based on the form of ownership, it is possible to single out the legal relations used by employers created on state and private property.

A specific place among employment contracts is occupied by a part-time employment contract. Its specificity lies in the fact that on its basis several labor relations may arise, in which the same employee will be a party. Moreover, they can arise between the same employee and the employer or another (other) employer.

The content of the employment relationship consists of two elements: material and volitional. The material content of the labor relationship constitute the actual behavior of the employee and the employer. The employee actually performs work on a specific labor function, and the employer pays him wages for this work and creates normal working conditions for work.

Volitional (legal) content of the labor relationship form the subjective labor rights and obligations of the employee and the employer. Any subjective right as an element of an employment relationship is a unity of the possibility of behavior of the most eligible employee or employer; the ability to demand certain behavior from an employee or employer; the possibility of resorting to coercive power of the state in case of non-fulfillment or improper fulfillment of requirements by an employee or employer. Thus, subjective law provides answers to the questions of what opportunities the subjects of an employment relationship have in relation to each other.

The subjective rights of an employee are characterized by specificity, pretentiousness and relative freedom of behavior in their implementation. The employee has the right to demand from the employer the provision of work in accordance with his labor function, at the same time, in the performance of his labor duties, he has the right to independently take the initiative aimed at introducing advanced labor methods. Pretentiousness is manifested in the fact that the employee has the right to demand the provision of safe and healthy working conditions, normal working conditions.

The subjective rights and obligations of each employee, as a party to an employment relationship, establish the boundaries and content of the possible and proper behavior of the employee, within which he has the right to act, demand, claim, enjoy benefits and satisfy the mutual interests and needs of the employer.

The employer also has subjective rights and obligations. He has the right to require the employee to perform work in accordance with the labor function good quality and in fixed time. At the same time, he is obliged to provide the employee with a workplace, to ensure necessary tools, overalls, etc.

It is important to note that the subjective labor rights and obligations of the employee and the employer act as corresponding to each other. That is, the right of the employee corresponds to the obligation of the employer and vice versa.

That is, an employment relationship arises not only on the basis of an employment contract, but this contract predetermines its content.

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 in compliance with the internal labor regulations of the organization, and the employer creates the necessary conditions for work in accordance with the law and pays the work of the employee not less than the minimum amount of work established by law.

Labor relations are always bilateral. They involve an employee and an employer with labor legal personality.

Types of labor relations are classified depending on the types of labor contracts: how many labor contracts - so many types of labor relations. For example, a specific type of labor relations is labor relations when working part-time. When working part-time, an employee has two labor relations in parallel.

An employment relationship must be distinguished from related legal relationships related to labor, but regulated by the norms of civil law, according to the following features:

1) in an employment relationship, the employee, as a rule, acts as a member labor collective, but in civil - no;

2) the subject of an employment relationship is the process of labor itself, and in a civil relationship, its embodied result;

3) in an employment relationship, the obligatory condition is the subordination of the employee to the rules of the internal labor regulations, which is not the case in civil relations;

4) in an 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 civil legal relations to work, such an obligation, as a rule, is assigned to the contractor.

All rights and obligations in an employment relationship are of a personal nature, i.e. the employee cannot appoint someone to perform the labor function assigned to him in his place. 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 - a complex of powers of one side and the duties of the other subject that correlate with them, 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 particular labor law relationship, which is its content, and content of the employment contract are his conditions.

The basis for the emergence of labor 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 by the employee of his labor function.

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

election to office

election by competition to fill the relevant position;

Appointment to a position or confirmation in a position;

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

a court decision on the conclusion of an employment contract.

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

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 to fill the relevant position arise if labor legislation and other regulatory legal acts containing labor law norms, or the charter (regulation) of the organization defines a list of positions to be filled by competition, and the procedure for competitive election 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 provided for by labor legislation and other regulatory legal acts containing labor law norms, or the charter (regulations) of the organization.

A change in labor relations can occur both as a result of actions and as a result of events, for example, a 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 an employee (by own will) Art. 80 of the Labor Code of the Russian Federation; death of an employee 83 of the Labor Code of the Russian Federation.