The employment contract is the main institution of labor law. Individual labor contract as an institution of labor law. The concept and legal meaning of an employment contract

Introduction

Chapter I. Employment contract: concept, features, parties

1.1 Concept and legal meaning employment contract

1.2 The difference between an employment contract and related civil law contracts

1.3 The employee and the employer as the main participants in the employment contract

Chapter II. The procedure for concluding an employment contract

2.1 Conditions for concluding an employment contract

2.2 Documents required for concluding an employment contract

2.3 Form of conclusion of an employment contract

2.4 Entry into force of the employment contract

Chapter III. Contents of the employment contract

3.2 Duration of the employment contract

3.3 Fixed term contract

Conclusion

List of used literature

Application

Introduction

The topic “Employment contract” is quite relevant and especially significant for every able-bodied citizen. An employment contract is one of the main institutions of labor law; in the labor code, it occupies a central place and includes legal norms that determine the parties and the procedure for concluding an employment contract, its content, the rules governing the procedure for registering employment, transfer, changing the essential conditions of labor law, suspension from work, as well as termination of labor relations.

An employment contract is a legal fact that gives rise to an employment relationship, and at the same time, the basis for its action in time. This provides an opportunity for the employee and the employer to take into account (coordinate) mutual interests not only at the time of the emergence of an employment relationship, but also during its existence. Changing the terms of an employment contract or terminating it, respectively, change or terminate the employment relationship. By concluding an employment contract, a citizen realizes the right granted to him by the Constitution of the Russian Federation to freely choose a job in accordance with his abilities, profession and qualifications. For an employer, the right to conclude employment contracts means the ability to select workers who, in their professional and business qualities correspond to the assigned work, are the most qualified and experienced workers.

Having concluded an employment contract with an employer, a citizen becomes his employee and from that moment on he has the right to apply for social guarantees and protection under labor law. For its part, the employer acquires the right to require the employee to comply with the internal labor regulations, conscientious attitude to labor duties, fulfill the instructions and orders of the head on labor, the collective agreement (agreement) and the employment contract. If necessary, the employer has the right to apply disciplinary measures to the employee.

We can say that the employment contract is designed to regulate the relationship between the employee and the employer, to minimize disputes that may arise during the validity of the employment contract. Particularly protects the employee's employment contract because, according to established practice, it is he who is the most weak side in this type of relationship.

Based on the fact that the basis of the employment contract are such principles as freedom of choice of profession, the right to work in accordance with the rules of safety and hygiene, the right to remuneration for work without any discrimination based on gender, nationality, social status, as well as the right to rest and protection from unemployment, an employment contract can be considered an element of the rule of law.

The value of the employment contract in the mechanism legal regulation labor is as follows: 1. An employment contract is a form of attraction to labor activity. It is through this agreement that a person's right to work is realized, which everyone freely chooses or freely agrees to (Article 2 of the Labor Code of the Russian Federation).2. An employment contract is a legal fact that initiates an employment relationship (Article 15 of the Labor Code of the Russian Federation).3. An employment contract is a litmus test that determines the presence or absence of an employment relationship in each specific case, i.e. the possibility of applying labor law (part 1 of article 11, part 1 of article 16 of the Labor Code of the Russian Federation). 4. An employment contract can be considered as one of the ways to regulate labor relations (Article 9 of the Labor Code of the Russian Federation).5. An employment contract is one of the main institutions of the industry and science of labor law.6. Labor contract - important tool personnel management.

An employment contract as a central institution of labor law is the subject of research by many scientists. Practically all specialists of labor law, in particular, such prominent scientists as: T.Yu. Korshunova, V.I. Mironov, Yu.P. Orlovsky, S.A. Panin, O.V. Smirnov, V.N. Skobelkin, V.N. Tolkunova, E.B. Khokhlov and many others.

object course research are public relations associated with the employment contract as an independent institution of labor law. Subject of study- Relevant labor laws. aim research is a comprehensive analysis of the employment contract, to achieve which the following tasks are set: 1) to clarify the concept of an employment contract and its differences from related civil law contracts; 2) consider the parties to the employment contract and their legal personality; 3) comprehensively analyze the content of the employment contract; 4) investigate the binding nature of the terms of the employment contract for its parties.

As general scientific research methods the methods of formal-logical and system-structural analysis were applied. By its structure course work consists of introduction, three chapters, conclusion, bibliography.

Thus, having substantiated the significance and relevance of this topic, having determined and drawn up a plan for solving the tasks set, we can begin to disclose the problems that are the object of research.

1. Employment contract. Concept, features, sides

1.1 The concept and legal meaning of an employment contract

An employment contract is the main institution of labor law, reflecting the characteristic features of labor relations. An employment contract is a legal form of individual labor regulation in organizations, the basis for the development of labor relations.

In the science of labor law, an employment contract is considered in the following two aspects: as an agreement between an employee and an employer on labor at a given enterprise and as the most important institution of labor law that determines the norms of an employment contract: its conclusion, amendment and termination. An employment contract as an agreement on work is a legal fact that gives rise to an employment relationship of an employee, and a necessary prerequisite for the application of labor legislation to it and the emergence of other legal relationships directly related to labor law.

An employment contract is a contract of a personal nature, since the employee personally carries out work in the general cooperation of labor and cannot do this through another person. Therefore, this agreement protects the identity of the employee, his health, honor and dignity. An employment contract, reflecting an individual way of regulating labor, may provide for additional labor benefits for an employee.

Federal Law of June 30, 2006 No. N 90-FZ did not make fundamental changes to the concept of an employment contract, formulated in Art. 56 of the Labor Code of the Russian Federation. Part 1 of the commented article is brought into line with the new edition of Art. 5 of the Labor Code of the Russian Federation, which clarifies the concepts of "labor legislation" and "other regulatory legal acts" that regulate labor Relations and other directly related relations. It also contains some editorial changes that do not change the essence of the very concept of an employment contract.

Labor legislation (including labor protection legislation) according to new edition Art. 5 Labor Code consists of the Labor Code of the Russian Federation, other federal laws and laws of subjects Russian Federation containing labor law norms. to other regulatory legal acts containing labor law norms include: decrees of the President of the Russian Federation; Decrees of the Government of the Russian Federation; normative legal acts of federal executive bodies; normative legal acts of the executive authorities of the constituent entities of the Russian Federation; normative legal acts of local self-government bodies.

1.2 The difference between an employment contract and related civil law contracts

Formulated in Art. 56 of the Labor Code of the Russian Federation, the concept of an employment contract makes it possible to single out its main elements (features) that make it possible to distinguish an employment contract from civil law contracts related to the use of labor - a work contract (Article 702 of the Civil Code); contracts for the performance of research, development and technical work(Article 769 of the Civil Code); agreements paid provision services (Article 779 of the Civil Code); contract of agency (Article 971 of the Civil Code).

These elements include:

the specifics of the obligation assumed by the employee under an employment contract, expressed in the performance of work in a certain position in accordance with staffing, professions, specialties indicating qualifications, i.e. the labor function stipulated by the agreement of the parties;

The employment contract is the central institution of labor law. Its importance is emphasized by the Labor Code, which contains five chapters on the employment contract. They define the concept and parties of an employment contract, its content, types of employment contract, rules for applying for a job, guarantees for its conclusion, amendment of an employment contract, and termination of employment relations.

In the theory of labor law, it is reasonable to single out such sub-institutions in the institution of an employment contract as: - conclusion of an employment contract; - changing the employment contract; - termination of the employment contract. However, along with this, there are often other interpretations of the sub-institutions of the employment contract, for example, traditionally: hiring, transfers to another job and dismissals. I would like to note that such interpretations are not entirely correct, because they are not based on the law. So, in chapter 11 of the Code. “Conclusion of an employment contract” out of 9 articles, only 3 deal with the issue of employment (articles 68, 70 and 71). Petrov A. Ya. Employment contract - an institution of modern Russian labor law and its improvement // journal "Labor Law". - 2008. - No. 1. - P.53

1. conclusion of an employment contract

2. change of employment contract

3. termination of the employment contract

An employment contract should be considered in three aspects:

as a labor agreement concluded between the employee and the employer;

institute of labor law, the norms of which regulate the procedure for hiring (conclusion of an employment contract), transfer to another job and dismissal (change and termination of an employment contract);

the legal fact of the emergence of labor relations, as well as the emergence, change and termination of closely related labor (derivative) legal relations. Gusov K.N. Labor law of Russia / K.N. Gusov, V.N. Tolkunov. - M.: Jurist, 2010. - P.179

In Art. 56 of the Labor Code of the Russian Federation provides a definition of an employment contract. This is an agreement between the employer and the employee, according to which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure working conditions provided for by the Labor Code of the Russian Federation, laws and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and this agreement, pay wages to the employee in a timely manner and in full, and the employee undertakes to personally fulfill the labor function comply with the rules of the organization internal regulations.

An employment contract should be distinguished from related civil law contracts related to labor (work contracts, assignments, author's contracts, contracts for research and development work, etc.). Despite the external similarity, they differ in the following ways:

the subject of the employment contract is the work of the employee itself, i.e. all daily labor activities for a specific labor function. The subject of civil law contracts is the already materialized final result of labor (invention, painting, etc.), and labor in them is only a way of achieving this result, fulfilling obligations;

as a rule, an employment contract involves the personal performance of work, it is prohibited to replace an employee with another person. In civil law contracts, such an obligation arises only by virtue of a special fixing of this condition in the contract itself or in cases specified by law for certain types civil law contracts;

under an employment contract, the employee is obliged to obey the rules of internal labor regulations in the process of performing his labor function. Failure to comply with this obligation may result in disciplinary action against the employee. There is no such condition in civil law contracts;

under an employment contract, the employer is obliged to organize the work of the employee, create normal and safe working conditions for him. According to civil law contracts, the employee himself organizes the work, performs it at his own risk.

The terms of an employment contract in the theory of labor law, in terms of the mechanism of their formation, are traditionally divided into two groups:

direct (contractual), which are formulated by the parties to the employment contract in the course of mutual negotiations;

derivatives (non-contractual), which are provided for by law, a collective agreement, agreements and apply to the parties in connection with the conclusion of an employment contract (part 5 of article 57 of the Labor Code of the Russian Federation).

According to Article 57, the content of the employment contract can be conditionally divided into three parts. The first part includes information characterizing the employee and the employer, the second - the mandatory terms of the employment contract and the third - the terms of the employment contract, which the parties may establish at their discretion. Orlovsky Yu.P. Commentary on the Labor Code of the Russian Federation. - M.: Infra-M, 2014. - P.118

The Labor Code of the Russian Federation contains a provision according to which, if any mandatory conditions or information were not included in the employment contract, this is not a basis for recognizing it as not concluded or terminating it (part 3 of article 57). The information is the details, ie. information about the parties to the transaction, which most often does not have any legal content therefore, their presence or absence really cannot affect the future rights and obligations of the parties to the contract. So, if at the conclusion of the contract information about one representative of the employer is entered into it, but after a week this representative changes (for example, in connection with the appointment of a new head by decision of the general meeting of participants in the organization), this circumstance cannot and should not have negative consequences for the relevant employment contract. The same can be said about the documents proving the identity of the parties to the contract, about the individual number of the taxpayer - the employer, etc.

Unlike information, the terms of the contract are a model of future mutual rights and obligations of the parties, rules of conduct within the framework of an employment relationship. It is impossible to conclude an agreement in which, for example, its subject is not defined, that is, what follows from the basis of the transaction, since with an unclear goal there can be no definite legal result.

Mandatory or optional terms of an employment contract cannot worsen the position of an employee in comparison with that determined by labor legislation, a collective agreement, an agreement. Therefore, if such conditions arise, they are not subject to application in accordance with the law, in other words, such conditions as contrary to the law are void, that is, they cannot give rise to legal consequences.

These conditions include: 1) the subject of the contract - a specific labor function for which a person is hired; 2) the place of performance of the labor function (place of work).

The labor function is, of course, the central element of any employment contract. Without this condition, the transaction cannot take place, since the lack of information about the labor function deprives the interaction of the parties of any meaning and only means that the employer has no idea why he needs to use the employee's ability to work. Moreover, emphasizing the importance of this element as part of the content of the contract, the legislator consolidated the principle of certainty of the labor function, expressing its position by prohibiting requiring the employee to perform work not stipulated by the labor contract (Article 60 of the Labor Code of the Russian Federation).

The salary clause in Art. 57 of the Labor Code of the Russian Federation is recognized as a necessary element of the content of an employment contract. At the same time, it does not fix the obligation to pay it, which arises after the start of work, but only a promise to comply with this condition in the future.

The condition on the mode of work in time and rest time requires mandatory discussion by the parties if, with respect to the relevant work, the modes of work and rest will differ from general rules established in this organization by local regulations.

Among the situational prerequisites, it is also necessary to include those that arise from the peculiarities of the legal regulation of the labor of certain categories of workers, in particular, according to the Labor Code of the Russian Federation, this applies to part-time workers (Article 282), workers sent to work in the diplomatic missions of the Russian Federation abroad ( Art. 338), professional athletes and coaches (Art. 348), employees of religious organizations (Art. 344), state civil and municipal employees, and some others.

In Art. 57 of the Labor Code of the Russian Federation, the conditions on compensation for work in special conditions and on compulsory social insurance are also named as mandatory. In the overwhelming majority of cases, they are not formulated by the parties, but are borrowed from legislation or acts of social partnership, local regulation.

Considering this question, we must proceed from the fact that there are several meanings in labor law and other branches.

An employment contract is considered in an objective sense, as system legal regulations regulating the procedures for concluding, amending and terminating employment contracts. In the second sense, an employment contract is considered as the basis for the emergence of an employment relationship, as a kind of labor deals.

In the literature, an employment contract is also understood as legal relationship and means that the parties have mutual rights and obligations, and in essence means the existence of an obligation that exists for a long time, has no clear boundaries in time.

An employment contract can be understood as legal form attraction to work, and in this sense, an employment contract is an institution of labor law, since there are other forms of involvement in labor (military service, civil contract, etc.). It contains a fairly large amount of norms, and it can be called the general institution of labor law, which combines several institutions, such as the institution of concluding a contract, the institution of amendment (novation) of a contract, and the institution of termination of a labor obligation.

Understanding the employment contract as a form, document, a paper to be signed. But this is a common understanding. An employment contract may be concluded in a conclusive manner. It doesn't have to be in writing. So the first three values ​​rule.

Today we will consider an employment contract as a legal fact, as the basis for the emergence of a legal relationship. The norms of the employment contract are contained in section III of the Labor Code of the Russian Federation. Despite the content of the current Labor Code, we must take from the Code not what we see, but must see deeper, “look between the lines”.

If you look closely at Art. 56 of the Labor Code of the Russian Federation, we will see the following: An employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreement, agreements, local regulations and this agreement, pay the employee wages in a timely manner and in full, and the employee undertakes to personally perform the labor function defined by this agreement, to comply with the internal labor regulations in force at this employer.

The first thing that catches your eye is the "agreement". But here it is very clear to understand how the legislator considers this category of agreements. In all previous codes, the term "agreement" fades into the background. Commitment, which should characterize the relationship of the parties, comes to the fore. Art. 56 of the Labor Code of the Russian Federation actually indicates what will happen between the parties, what will arise from this legal fact, but this is not the definition of an employment contract as a legal fact.

An employment contract as a legal fact is the lawful volitional actions of the employer and the hired person, aimed at the emergence of mutual labor rights and obligations.

Chapter 10 of the Labor Code of the Russian Federation actually concerns employment relations. There are relationships that precede labor, this includes the institution of concluding an employment contract. The understanding of an employment contract as a transaction, in fact, is not recognized by all scientists. Essentially, an employment contract is a transaction.

Considering an employment contract as a deal, we must understand that it has a structure:

The subjective side is the subject and the will.

The parties to the transaction are peculiar subjects: the employed and the employer (future employee and employer). It is known that only an individual can be hired here. Requirements for the subject: legal capacity, legal capacity and ability to work. The other party is the employer, which can be either an individual or a legal entity. In this case, it is necessary to take into account the status legal entity: legal status, the availability of appropriate means and structures of production.

Second element subjective side deals - will. Will, respectively, is a combination of motive and purpose. As is known from the general theory of transactions, the purpose of the transaction is the basis, the motive is what induces the transaction. The basis here is the ability to work, which can be used, while bilateral relations do not have to be related to the interests of the other side. Often the purpose of the hired is to obtain a livelihood. With regard to motives, labor law does not pay attention to whether the motive is fraudulent or real. Often, the hired person is not told where he will work, what he will do, etc. Labor Code does not contain a mechanism for protection against such circumstances. But it must be borne in mind that in the development of relations between the parties, motives are sometimes given importance, for example, Art. 74 of the Labor Code of the Russian Federation - Changing the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions.

· Objective side – conditions and form. The terms of a contract are what the parties negotiate and agree on. They represent an external expression of the motives and goals of the transaction, as well as those strong-willed moments that are the basis of the interests of each of the parties. If the terms are not agreed, then there is no deal. It is traditional to divide the conditions into:

o Direct - developed by the parties independently in the process of negotiations.

From the point of view of significance in the transaction, such conditions are divided into:

Mandatory (Article 57 of the Labor Code of the Russian Federation) - those conditions without which an employment contract cannot be concluded. These conditions are further subdivided into:

o Basic - those without which no employment contract can be concluded. The subject of the employment contract is “whom to work with” or the place of work.

o Situational - mandatory for contracts of a certain type, and if they are not agreed by the parties, then it is considered concluded on the main terms. For example, if you do not stipulate in the employment contract with the night watchman that he must work at night, then he can come during the day and be right.

· Additional.

o Derivatives - the parties do not agree on them, they are derived from laws, local regulations, from collective agreements.

It is necessary to distinguish the terms of an employment contract from information. Conditions are a model of the future legal relationship. Information does not give rise to any rights and obligations between the parties.

Types of contracts:

1. Depending on the term

a. Urgent (no more than 5 years)

b. For undefined period

2. Depending on the nature of the work

a. Employment contracts at the main place of work, i.e. such employment contracts that assume that the employee will perform the full norm of working time or labor norm under this contract with a specific employer.

b. Part-time employment contracts

A special section of the Labor Code of the Russian Federation (Chapter 44) is devoted. Part-time work does not imply the fulfillment of the full norm of working hours. Work cannot be more than half of the full norm, i.e. maximum - 20 hours per week. The number of part-time contracts is not limited. Part-time work is allowed at the employer, where the main work is carried out - internal part-time work. In this case, work under this contract must be carried out outside working hours at the main place. There is an external part-time job - work for another employer under a part-time contract. Part-time work must be distinguished from such concepts as “combination of work, professions” - work during the main working time; "deputies" - work is carried out at the main place of work instead of an absent employee; "expansion of service areas or increase in the volume of work" - the amount of main work is increased, albeit on the basis of an agreement.

an employee, expressed in the performance of work in a certain position in accordance with the staff list, profession, specialty, indicating qualifications, i.e. the labor function stipulated by the agreement of the parties;

performance of work in compliance with internal labor regulations;

the obligation of the employer to provide the employee with 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, as well as to pay wages to the employee in a timely manner and in full.

Unlike an employment contract concluded with an employee to perform a certain labor function, all these civil law contracts are concluded for the performance of a specific work, the purpose of which is to achieve its specific end result. Achieving a specific result stipulated by the contract entails the termination of this contract. In other words, unlike an employment contract, the performance of certain work under a civil law contract is only a way to achieve the result stipulated by the contract.

For example, according to paragraph 1 of Art. 702 of the Civil Code, under a work contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and hand over its result to the customer, and the customer undertakes to accept the result of the work and pay for it. Under the contract for the implementation of development and technological works the contractor undertakes to develop a sample of a new product, design documentation on him or new technology, and the customer undertakes to accept the work and pay for it (clause 1 of article 769 of the Civil Code).

When performing a labor function under an employment contract, it is quite difficult to single out the individual end result of the worker's work. So, the result of the work of an accountant, economist, manager, etc. when they fulfill their job duties, as a rule, gets its expression as a result of the work of a department, workshop, etc. generally.

In this regard, the labor function of an employee, as a rule, is not aimed at achieving any final result. Although in the process of its implementation, the achievement of certain specific results is possible. However, the achievement of one or another specific result in the process of performing the labor function is not the only purpose of the employment contract and does not terminate its operation in connection with the achievement of this result. This circumstance fully applies to such an element of the labor function as specific view assigned work.

The performance of a labor function with subordination to the rules of the internal labor schedule is the second most important element that reflects the specifics of an employment contract.

Unlike an employment contract, according to which the employee is obliged to obey the rules of internal labor regulations (observe the working hours, technological discipline, accurately and timely fulfill the orders of the employer, etc.), the relations arising from civil law contracts presuppose the autonomy of the will of the contractor. So, for example, under a work contract, unless otherwise provided by the contract, the contractor independently determines the methods for fulfilling the customer's task (clause 3 of article 703 of the Civil Code).

provided by Art. 56 of the Labor Code of the Russian Federation, the obligation of the employer to provide the employee with working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, also distinguishes an employment contract from related civil law contracts, according to which performers of work not only independently determine the ways of its implementation, but also, as a rule, perform it from their own materials, with their own forces and means.

Unlike an employment contract, under which the employer undertakes to fully and timely pay wages to the employee at least every half a month, under civil law contracts, payment is made at the end of work for its final result. The salary of each employee depends on his qualifications, the complexity of the work performed, the quantity and quality of labor expended. It is determined on the basis of predetermined wage systems, tariff rate, salary and different kind payments (Articles 132, 135 of the Labor Code of the Russian Federation). The result of work under a civil law contract is paid in accordance with the price stipulated by the contract (Articles 711, 774, 781, 972 of the Civil Code of the Russian Federation).

The difference between an employment contract and civil law contracts related to the use of labor is of great practical importance. By concluding an employment contract, a citizen is subject to labor legislation. He must be provided with appropriate social guarantees. Persons working under civil law contracts do not enjoy such guarantees. At the same time, it should be borne in mind that in cases where the court has established that a civil law contract actually regulates labor relations between an employee and an employer, the provisions of labor legislation and other acts containing labor law norms are applied to such relations (Art. 11 of the Labor Code of the Russian Federation).

Thus, the distinctive specific features of the employment contract are the following:

1) its subject is the personal performance of a labor function;

2) performance of work of a certain kind;

3) subordination of an employee in the process of performing a labor function to the rules of internal labor regulations;

4) remuneration according to pre-established norms, but not lower than the guaranteed minimum established at the federal level.

The foregoing allows us to formulate the main differences between an employment contract and a civil law contract according to the following criteria:

1. A civil law contract combines various types of contractual relations (purchase and sale, contracts, etc.). The employment contract is a single concept that reflects all the elements of relations regarding the use of labor force.
2. The difference is in the mechanism of regulation of emerging legal relations. In one case, labor relations are regulated by labor law; the other is civil law.
3. Under an employment contract, an employee performs work in a specific specialty, qualification, position, profession. He is obliged to carry out any tasks of the administration related to his labor function in the specialty specified in the employment contract. Under a work contract or assignment, a citizen performs only individually specific work entrusted to him by the customer.
4. Under the employment contract, the employee is subject to the internal regulations, working hours. The contractor, fulfilling an individual labor order, does not obey the schedule, but works at a convenient time for himself, organizes work himself, ensures its safety, and is responsible for accidental death or damage to the subject of the contract.
5. Under an employment contract, the employee is obliged to perform a certain measure of labor in a certain period of time. For example, a pieceworker must complete a daily work rate, and an employee or time worker must work a set number of hours. The contractor is bound only by the deadline, the moment of transfer of materialized labor to the customer.
6. An employment contract is recorded in a work book, but a civil law contract is not.

1.3 The employee and the employer as the main participants in the employment contract

employment contract legal work

Labor contractthis is a bilateral agreement. The parties to an employment contract are the employer and the employee. According to Art. 20 of the Labor Code of the Russian Federation, an employee is an individual who has entered into an employment relationship with an employer. Persons who have reached the age of 16 have the right to enter into labor relations (conclude labor contracts) with employers, and in the cases and in the manner established by the Labor Code, also persons who have not reached the specified age (Article 63 of the Labor Code of the Russian Federation).

An employer is an individual or a legal entity (organization) that has entered into an employment relationship with an employee. In cases provided for by federal laws, another entity entitled to conclude employment contracts (part 4 of article 20 of the Labor Code) may act as an employer. Because Art. 20 of the Labor Code, it is the legal entity that names the employer, then a branch or representative office of a legal entity cannot be recognized as an employer, despite the fact that they are its separate divisions and located outside the location of the legal entity.

Employers - individuals in accordance with Art. 20 TCs are recognized:

individuals duly registered as individual entrepreneurs and carrying out entrepreneurial activity without formation of a legal entity;

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 implement said activity. These individual employers are also referred to as individual entrepreneurs. They bear to the employees who have entered into labor relations with them all the duties that the Labor Code imposes on employers - individual entrepreneurs. The implementation by them of the specified activity in violation of the requirements of federal laws without state registration and (or) licensing does not release them from the performance of the obligations of the employer;

individuals who enter into an employment relationship with employees for the purposes of personal service and household assistance. They are called employers - individuals who are not individual entrepreneurs. Individuals are eligible to act as employers if they have reached the age of 18 under the condition

Employment contract - an institution of modern Russian labor law and its improvement

A. Ya. Petrov, Doctor of Law, Professor, State University"High School of Economics"

An employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and by this agreement, to pay the employee wages in a timely manner and in full, and the employee undertakes to personally perform the labor function determined by this agreement, to comply with the internal labor regulations applicable to this employer.

This legal definition of the concept of an employment contract (as researchers sometimes note the concept of an employment contract in the proper sense) must be distinguished from the concept of an employment contract as an institution of labor law in Russia. This category should be understood as a set or system of legal norms that define the concept, content, terms of an employment contract and regulate relations for its conclusion, amendment and termination.
It is positive that the Labor Code of the Russian Federation logically and consistently reflects the basis of this institution in section 111.

Employment contract, namely:
– general provisions (Chapter 10);
– conclusion of an employment contract (Chapter 11);
– amendment of the employment contract (Chapter 12);
– termination of the employment contract (Chapter 13).

At the same time, the inclusion in this section of Chapter 14. “Protection of personal data of an employee”, which in this context is clearly inappropriate, is objectionable, because the institution of an employment contract (as recognized in the science of labor law) does not contain such an element. It seems reasonable to assign chapter 14 of the Code to section XIII “Protection of labor rights and freedoms…”. It is easy to see the similarity and homogeneity of these categories of labor law. It seems that the norms of Chapter 14 of the Labor Code of the Russian Federation are actually aimed at protecting the labor rights and freedoms of workers, including labor honor, dignity and business reputation and not to protect the personal data of the employee.

It is also appropriate to emphasize that Article 2 of the Code refers ensuring the right of employees to protect their dignity during the period of employment to the basic principles of legal regulation of labor relations and other directly related relations.

In the theory of labor law, it is reasonable to single out such sub-institutions in the institution of an employment contract as:
– conclusion of an employment contract;
– change of the employment contract;
- termination of the employment contract.

However, along with this, there are often other interpretations of the sub-institutions of the employment contract, for example, traditionally: hiring, transfers to another job and dismissals. I would like to note that such interpretations are not entirely correct, because they are not based on the law. So, in chapter 11 of the Code. “Conclusion of an employment contract” out of 9 articles, only 3 deal with the issue of employment (articles 68, 70 and 71).

Even more striking is the discrepancy between "changing the employment contract" and "transferring to another job." The first category is much broader and includes four groups of rules governing:
- transfer to another job;
– movement;
- changing the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions;
- suspension from work.

Regarding the last sub-institution of the employment contract, it is necessary to take into account the well-known thesis that “dismissal” refers to the employee, and not to the employment contract. In addition, in Chapter 13 of the Labor Code of the Russian Federation "Termination of an employment contract" there is not a single article that would specifically regulate the relationship for the dismissal of an employee, with the exception of a mention of this in Article 80 of the Code.

And now let's look specifically at chapters 10-13 of the Labor Code of the Russian Federation, which determine the structure, system and content of the institution of an employment contract.
Chapter 10 " General provisions» provides:
- the concept of an employment contract, its parties;
- the content of the employment contract;
- terms of the employment contract, fixed-term employment contract;
- prohibition to demand the performance of work not stipulated by the employment contract;
- part-time work;
- combining professions (positions), expanding service areas, increasing the volume of work, performing the duties of a temporarily absent employee without exemption from work determined by the employment contract;
– the entry into force of the employment contract;
– issuance of copies of documents related to work (Articles 56-62).

It is easy to see that individual articles and relevant norms can hardly be attributed to the "General Provisions". So, according to Article 58 of the Labor Code of the Russian Federation, employment contracts can be concluded:
1) for an indefinite period;
2) for a fixed period of not more than five years (fixed-term employment contract), unless another period is established by this Code and other federal laws.

A fixed-term employment contract is concluded when labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its performance, namely in the cases provided for by paragraph one of Article 59 of the Code. In the cases provided for by the second part of Article 59 of the Code, a fixed-term employment contract may be concluded by agreement of the parties to the employment contract without taking into account the nature of the work to be done and the conditions for its performance.
If the employment contract does not specify the term of its validity, then the employment contract is considered concluded for an indefinite period.
An employment contract concluded for a fixed period in the absence of sufficient grounds established by the court is considered to be concluded for an indefinite period.

It is prohibited to conclude fixed-term employment contracts in order to avoid granting the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period.
Article 59 of the Labor Code of the Russian Federation provides for cases when a fixed-term employment contract is concluded (Part 1) and, by agreement of the parties, a fixed-term employment contract may be concluded (Part 2).

Thus, the content of articles 58–59 of the Labor Code of the Russian Federation indicates that these articles should be included in Chapter 11 of the Code “Conclusion of an employment contract” and, of course, excluded from Chapter 10, since they are not of a general nature.
In accordance with Article 60 of the Labor Code of the Russian Federation, it is prohibited to require an employee to perform work not stipulated by an employment contract, except as provided for by this Code and other federal laws. This important provision in the science of labor law is rightly referred to when considering the problems of transfers to another job. The question is natural: why is this norm enshrined in Chapter 10 "General Provisions"? I believe that it would be reasonable to include it in Chapter 12 “Changing the employment contract” after Article 72 of the Labor Code of the Russian Federation, which provides for the fundamental rules for changing the terms of the employment contract determined by the parties.

Federal Law No. 90-FZ of June 30, 2006 supplemented Chapter 10 of the Labor Code of the Russian Federation with Article 60-1 “Part-time work”. According to this article, an employee has the right to conclude employment contracts on the performance, in his spare time from his main job, of another regular paid job with the same employer (internal part-time job) and (or) with another employer (external part-time job).

Features of labor regulation of persons working part-time are determined by Chapter 44 of this Code.
In terms of content, this article can be attributed to Chapter 11 “Conclusion of an employment contract”, and not to the general provisions of an employment contract. Essentially, it concerns separate category part-time workers, and its proper place in Chapter 44 of the Labor Code of the Russian Federation.

Federal Law No. 90-FZ of 30 June 2006 also supplemented Chapter 10 of the Code with Article 60-2. It provides that, with the written consent of the employee, he may be entrusted with the performance during the established duration of the working day (shift), along with the work specified in the employment contract, additional work in another or the same profession (position) for additional payment (Article 151 of this Code).
Additional work assigned to an employee in another profession (position) may be carried out by combining professions (positions). Additional work entrusted to an employee in the same profession (position) can be carried out by expanding service areas, increasing the volume of work. In order to fulfill the duties of a temporarily absent employee without being released from work specified in the employment contract, the employee may be entrusted with additional work both in another profession and in the same profession (position).

The period during which the employee will perform additional work, its content and volume are established by the employer with the written consent of the employee.

The employee has the right to prematurely refuse to perform additional work, and the employer has the right to cancel the order to perform it ahead of schedule, notifying the other party in writing no later than three working days in advance.
This article of the Code is also not of a general nature and, in terms of its content, should be classified as a sub-institution of “changing an employment contract”, which requires fixing it in Chapter 12 of the Labor Code of the Russian Federation.

In accordance with Article 61 of the Labor Code of the Russian Federation, an employment contract enters into force from the day it is signed by the employee and the employer, unless otherwise provided by federal laws, other regulatory legal acts of the Russian Federation or the employment contract, or from the day the employee is actually admitted to work with the knowledge or by on behalf of the employer or his representative.

The employee is obliged to start performing labor duties from the day specified in the employment contract.
If the employment contract does not specify the day of commencement of work, the employee must start work on the next working day after the entry into force of the contract.

If the employee did not start work on the day of commencement of work, established in accordance with the second or third part of this article, the employer has the right to cancel the employment contract. The canceled employment contract is considered not concluded. Cancellation of an employment contract does not deprive the employee of the right to receive mandatory social insurance in the event of an insured event in the period from the date of conclusion of the employment contract until the day of its cancellation. And this article of the Code cannot be attributed to the general provisions of the employment contract, because in its content it is more related to the sub-institution “conclusion of an employment contract”.

Thus, in Chapter 10 "General Provisions" of the Labor Code of the Russian Federation, articles 56-57, as well as 62, should obviously remain. The latter, in particular, provides that, upon a written application from the employee, the employer is obliged no later than three working days from the date of submission of this applications to issue to the employee copies of documents related to work (copies of the order for employment, orders for transfers to another job, orders for dismissal from work; extracts from the work book; certificates of wages, accrued and actually paid insurance premiums for mandatory pension insurance, about the period of work with this employer, etc.). Copies of documents related to work must be duly certified and provided to the employee free of charge.

This article contains rules that apply to all sub-institutions of the employment contract, that is, it has a general meaning and is reasonably included in chapter 10.
Closely related to it is Article 66 of the Labor Code of the Russian Federation.

According to this article, the work book of the established form is the main document on labor activity and seniority worker.
The form, procedure for maintaining and storing work books, as well as the procedure for preparing blank work books and providing employers with them, is established by the Government of the Russian Federation.

Employer (with the exception of employers - individuals who are not individual entrepreneurs) maintains work books for each employee who has worked more than five days, in the case when the work for this employer is the main one for the employee.

AT work book information is entered about the employee, the work performed by him, transfers to another permanent job and on the dismissal of the employee, as well as the grounds for terminating the employment contract and information on awards for success in work. Information about penalties in the work book is not entered, except in cases where disciplinary action is dismissal.

At the request of the employee, information about part-time work is entered in the work book at the place of main work on the basis of a document confirming part-time work.

The question arises: why is Article 66 enshrined in Chapter 11 of the Code “Conclusion of an employment contract”? After all, it contains norms relating to the entire institution of the employment contract. Apparently, its proper place is in Chapter 10 of the Labor Code of the Russian Federation, next to the article regulating the issuance of copies of documents related to work. Articles 70 and 71 of the Labor Code of the Russian Federation need to be improved.

Thus, Article 70 of the Code should be called “Probation condition when concluding an employment contract”, thereby bringing it into line with the title of Chapter 11 and Article 57 of the Labor Code of the Russian Federation. And the content of the article should be stated as follows: “When concluding an employment contract, by agreement of the parties, it may provide for a condition on testing the employee in order to verify his compliance with the assigned work.”

The absence of a test clause in the employment contract means that the employee is hired without a test. In the event that an employee is actually allowed to work without drawing up an employment contract (part two of Article 67 of this Code), a test condition may be included in the employment contract.
During the probation period, the employee is subject to the norms of labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations.

The trial period cannot exceed three months, and for the heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions organizations - six months, unless otherwise specified federal law.

When concluding an employment contract for a period of two to six months, the probation may not exceed two weeks.
The period of temporary disability of the employee and other periods when he was actually absent from work are not included in the probationary period.
It is advisable to single out from Article 70 of the Labor Code of the Russian Federation and fix it in Article 70-1 “Cases when a test is not established”, setting it out as follows:
“The test condition at the conclusion of an employment contract is not established for:
- pregnant women and women with children under the age of one and a half years;
- persons under the age of eighteen;
- persons elected on the basis of a competition for the relevant position held in accordance with the procedure established by labor legislation and other regulatory legal acts containing labor law norms;
- persons elected to an elective position for paid work;
– persons who graduated from state-accredited educational institutions of primary, secondary and higher vocational education and for the first time coming to work in the received specialty within one year from the date of graduation educational institution;
- persons invited to work in the order of transfer from another employer as agreed between employers;
– persons concluding an employment contract for a period of up to two months;
- other persons in cases provided for by this Code, other federal laws, a collective agreement.

Article 71 of the Labor Code "The result of the test when hiring" is logically called the "Result of the test after hiring", setting it out as follows:
“If the probation period has expired, and the employee continues to work, then he is considered to have passed the probation.”
In Chapter 13 of the Code “Termination of an Employment Contract”, it would be reasonable to fix a separate article “Termination of an Employment Contract during the Probationary Period” (because Article 71 of the Code in the current version is hardly correctly enshrined in Chapter 11) and state it as follows:
“If the result of the test is unsatisfactory, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, notifying him in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as not having passed the test.

If the test result is unsatisfactory, the termination of the employment contract is made without taking into account the opinion of the relevant trade union body and no severance pay.
If during the trial period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract on his own initiative, notifying the employer in writing three days in advance.

An analysis of the norms of Chapter 12 "Changing the employment contract" also indicates the need for their optimization.
According to Article 72-2 of the Labor Code of the Russian Federation, in case of transfers made in the cases provided for in parts two and three of this Article, the employee's remuneration is made according to the work performed, but not lower than the average salary according to previous work. It seems that this provision relates to a greater extent to the institution of wages, and, as a result, it should be enshrined in Chapter 21 "Wages".

Article 73 of the Labor Code of the Russian Federation “Transfer of an employee to another job in accordance with a medical report” contains rules on suspension from work, termination of an employment contract and wages. In particular, parts 2-4 of Article 73 of the Code provide that if an employee who needs a medical report in accordance with temporary transfer to another job for a period of up to four months, refuses to transfer or the employer does not have a corresponding job, then the employer is obliged to remove the employee from work for the entire period specified in the medical report, while maintaining the place of work (position). During the period of absence from work wage the employee is not accrued, with the exception of cases provided for by this Code, other federal laws, a collective agreement, agreements, an employment contract.

If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses to transfer or if the employer does not have the appropriate job, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of this Code .

An employment contract with the heads of organizations (branches, representative offices or other separate structural divisions), their deputies and chief accountants who, in accordance with a medical report, need temporary or permanent transfer to another job, if the transfer is refused or the employer does not have the appropriate job, is terminated in accordance with with paragraph 8 of the first part of Article 77 of this Code. The employer has the right, with the written consent of these employees, not to terminate the employment contract with them, but to suspend them from work for a period determined by agreement of the parties. During the period of suspension from work, wages are not accrued to the specified employees, except for the cases provided for by this Code, other federal laws, a collective agreement, agreements, and an employment contract. It is impossible not to notice that the title of Article 73 of the Labor Code of the Russian Federation and its content do not correspond to each other.

I would like to hope for a qualitative improvement in this article, and above all, the exclusion of the norm on wages from it. At the same time, it should be taken into account that the provision on the termination of an employment contract is largely repeated in paragraph 8 of the first part of Article 77 of the Code. It would be advisable to enshrine the rules on suspension from work in Article 76 “Suspension from work”.

Of particular note is the groundlessness of fixing Article 75 in Chapter 12 of the Labor Code of the Russian Federation, because its content indicates not a change, but the termination of an employment contract. Thus, according to this article, when the owner of the organization's property changes, the new owner, no later than three months from the date of the emergence of his ownership right, has the right to terminate the employment contract with the head of the organization, his deputies and the chief accountant.

The change of the owner of the property of the organization is not a basis for terminating employment contracts with other employees of the organization.
If the employee refuses to continue working due to a change in the owner of the organization's property, the employment contract is terminated in accordance with paragraph 6 of Article 77 of the Labor Code of the Russian Federation.

When changing the owner of the property of an organization, a reduction in the number or staff of employees is allowed only after state registration of the transfer of ownership.

A change in the jurisdiction (subordination) of an organization or its reorganization (merger, accession, separation, separation, transformation) cannot be a basis for terminating employment contracts with employees of an organization. If the employee refuses to continue working in the cases provided for by part five of this article, the employment contract is terminated in accordance with paragraph 6 of article 77 of the Labor Code of the Russian Federation.

From Article 76 of the Labor Code of the Russian Federation, it is necessary to exclude the provision that during the period of suspension from work (non-admission to work), wages are not accrued to the employee, except as provided by this Code or other federal laws. In cases of suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or a mandatory preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire time of suspension from work as for downtime. This norm should be enshrined in Chapter 21 of the Code "Wages".

Compared with the considered chapters 10–12 of the Labor Code of the Russian Federation, chapter 13 “Termination of an employment contract” is preferable in terms of structure and content.

At the same time, Chapter 13 of the Code also needs some adjustment. Thus, Article 77 of the Labor Code of the Russian Federation provides for the following general grounds for terminating an employment contract:
6) refusal of the employee to continue work in connection with a change in the owner of the property of the organization, with a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75 of this Code);
7) refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);
8) the employee's refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, or the absence of an appropriate job for the employer (parts three and four of Article 73 of this Code);
9) refusal of the employee to transfer to work in another locality together with the employer (part one of Article 72-1 of this Code)”.

The question arises: why does paragraph 6 of Article 77 of the Code refer to Article 75, and in paragraph 7 - to Article 74, etc.? Elementary logic determines the opposite, that is, paragraph 9, obviously, should be paragraph 6, paragraph 8 - paragraph 7 of Article 77 of the Labor Code of the Russian Federation, etc.

In addition, it would be reasonable to state paragraph 5 of Article 77 of the Code as follows: “5) transfer of an employee, upon his written application or with his written consent, to work for another employer or election to a position”, thereby the specified paragraph will be brought into line with Articles 16–17, 64, 72-1 of the Labor Code of the Russian Federation.

Further, from the first part of Article 81 of the Labor Code of the Russian Federation, it is necessary to exclude clause 13 on termination of the employment contract at the initiative of the employer in cases provided for by the employment contract with the head of the organization, members of the collegial executive body of the organization. According to paragraph 4 of Article 77 of the Code, termination of an employment contract at the initiative of the employer (Articles 71 and 81 of this Code) refers to the general grounds for termination of an employment contract.

Chapter 43 of the Labor Code of the Russian Federation provides for the specifics of labor regulation of the head of the organization and members of the collegial executive body of the organization, and in particular additional grounds to terminate the employment contract with the head of the organization, including on the grounds provided for by the employment contract, paragraph 3 of Article 278 of the Code.

It is also advisable to exclude from the second part of Article 81 of the Labor Code of the Russian Federation the provision that the certification procedure (clause 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body workers. This provision cannot be directly related to the termination of the employment contract at the initiative of the employer. Moreover, the certification of employees is also important for resolving the issue of changing the employment contract, including transfer to another (both highly paid and lower paid) job (position).
In this regard, and taking into account the exceptional importance of attestation of employees, I believe it is timely to fix the relevant norms in Chapter 10 of the Labor Code of the Russian Federation.

Article 82 of the Code provides for the mandatory participation of an elected body of primary trade union organization in consideration of issues related to the termination of the employment contract at the initiative of the employer.

However, this article, in its content, is more related to the institution of guarantees and compensations. The Labor Code of the Russian Federation rightly fixed Chapter 27 "Guarantees and compensations to employees associated with the termination of an employment contract" in section VII "Guarantees and compensations".
In Chapter 27 of the Code, it is also necessary to fix the following provision of Article 84 of the Labor Code of the Russian Federation: “If the violation of the rules for concluding an employment contract established by this Code or other federal law was committed through no fault of the employee, then the employee is paid severance pay in the amount of the average monthly salary. If the violation of these rules is due to the fault of the employee, then the employer is not obliged to offer him another job, and the employee is not paid severance pay.

The institution of an employment contract is fundamental and central in Russian labor law, and therefore should also be a classic example of legal regulation.