The concept of labor relations
An employment relationship is a legal relationship between an employee and an employer in the process of fulfilling the duties assigned to him by the employee.
Employment relationship- this is a voluntary legal relationship between an employee and an employer, in which both parties in the production process are subject to labor legislation, collective and individual labor contracts.
Relationships themselves have specific features:
- proceed in conditions of subordination to the rules of internal labor regulations;
- the worker is usually included in the .
Participants (subjects) of labor relations are workers and employers. The subject of an employment relationship can be a foreigner (both as an employee and as a representative of the employer), and an individual citizen who accepts an employee as a housekeeper, personal driver, gardener, etc. can also be an employer.
Objects of labor relations
The object of the labor relationship is skills, abilities, skills, which he proposes to use to the employer and which are of interest to the employer in the process organized by him. It is for them that the employer is willing to pay. In market relations, the price of an employee, like any commodity, is determined.
Types of labor relations
They depend on the type of relevant relationship and the specific underlying the emergence and existence of this legal relationship. Therefore, in the same production, different types of labor relations are possible, since different types of labor contracts are possible (fixed-term, with an indefinite period, for the duration of seasonal work, part-time work, etc.).
Of these, two specific types of labor relations are distinguished:
- in connection with part-time work;
- under a student agreement.
Their specificity is that part-time work creates a second employment relationship for the employee along with his main place of work. A student relationship obliges the student, unlike other labor relations, not to work in the specialty, position, but to master this specialty in the workplace. Then, after passing the qualifying exam, the student legal relationship is fully transformed into an employment legal relationship but of the received specialty or profession.
Features of labor relations
A distinctive feature of labor relations is that labor relations are personal, i.e., with the development of the freedom of the labor contract, the individualization of the labor relations of the employee develops.
Another feature is that these relationships are built on compensated started, associated with mandatory remuneration for work in the form of wages.
The third feature is that labor relations are of a continuous nature i.e. they do not stop after the employee has completed a certain job task, but is associated with the performance of a certain labor function (work by position in accordance with the staff list, profession, specialty, indicating qualifications; or specifying the type of work assigned to the employee) - Art. 15 of the Labor Code of the Russian Federation.
Legislation establishes that labor relations are based on the certainty and stability of the employee's labor function, and prohibits the employer from requiring the employee to perform work not stipulated by the employment contract (Article 60 of the Labor Code of the Russian Federation).
Both an employment contract and an employment relationship arising from it are always mutual and bilateral.
Both parties to the employment relationship have the right to demand that the other subject fulfill his/her labor obligations to the filed relationship.
Since the employer has the right to disciplinary power, he himself can punish the employee if he fails to fulfill his duties in accordance with labor legislation, bring him to disciplinary and material liability, and both parties can resort to the coercive power of the state. This characterizes the volitional content of labor relations, which is supported by labor law norms that provide normal, safe, appropriate pay, compensation for harm (damage), the possibility of dismissal, etc.
The emergence, change and termination of labor relations
, determining the emergence, change and termination of labor relations, usually associated with the moment of conclusion, change and termination(Article 16 of the Labor Code of the Russian Federation). But it should be noted that these legal facts do not always represent a kind of action (hiring and dismissal of an employee), sometimes these are circumstances that are in the nature of events (the death of an employee, extraordinary circumstances, etc.). In addition, often legal facts may provide participants with an alternative choice (for example, grounds for dismissal) or have a complex composition that includes several circumstances together (for example, the existence of guilt, the wrongfulness of the act, the existence of damage and the causal relationship of wrongful guilty behavior and material damage).
The basis for the emergence An employment relationship is usually considered an employment contract. For employees holding elective positions, the basis for the emergence of their labor relations is the fact of being elected to this position. For some categories of workers, the basis for the emergence of labor relations is a complex set of legal facts, when, in addition to an employment contract, it is preceded or followed by some kind of legal fact. So, for persons accepted by competition, the conclusion of an employment contract should be preceded by their election by competition for this position. The complex composition of the emergence of labor relations in 14-year-olds, when the employment contract must be preceded by the consent of the parents.
The fact of the emergence of an employment relationship can be actual work permit even if the hiring was not properly processed.
Change of labor relations may be due to lawful action. Changes will be considered the circumstances specified in Chapter 12 of the Labor Code of the Russian Federation.
The employment relationship is terminated the fact of termination of the employment contract on the grounds provided for by law (Chapter 13 of the Labor Code of the Russian Federation).
Topic #5
"Labor relationship"
Topic questions:
1. The concept, features and types of labor relations
The concept and features of legal relations in labor law
Any branch of law regulates, first of all, social relations specific to a particular branch. It is social relations that constitute the subject of the branch of law. The subject of labor law answers the question in what types of social relations at work the behavior of people is regulated by labor law. Since the social organization of labor depends on the economic and political basis of a particular society, therefore, this basis determines the relationship of employers with workers for work, which are called labor relations. Proceeding from this, the subject of labor law is labor relations in the social organization of labor and other relations directly related to them. These relations constitute a complex, which includes nine groups of social relations. Labor relations are decisive in this complex. All others are derived from them or related to them.
In its pure form, the labor relation does not appear in practical life, since it is already in the form regulated by labor law - in the form of a legal relationship. In life, all nine groups of labor social relations have their own specific parties (subjects), endowed with labor legislation with rights and obligations, and content peculiar to each.
Labor relations are relations based on an agreement between an employee and an employer on the personal performance by an employee for a fee of a certain labor function (according to specialty, qualifications, positions), subject to compliance with the internal labor regulations and the employer ensuring working conditions provided for by labor legislation, a collective agreement agreements, employment contracts. Labor relations are a reflection of social production relations and, by their nature, exist objectively, regardless of the will of the citizen. However, belonging to these relations depends on the will of the parties and therefore they arise at the will of both parties and are of a personal volitional nature.
The concept of legal relationship is one of the basic concepts of the theory of law and is characteristic of all branches of law as a legal connection of subjects of law. Legal relations in the field of labor law - labor and production relations regulated by labor legislation, directly related to them regarding the labor of employees, i.e. it is a legal connection of the subjects of labor law.
The object of legal relations in the field of labor law is the material interest in labor, the results of labor activity and various socio-economic benefits that satisfy the employee and the employer, in protective ones - the protection of material interest and socio-economic rights.
Since the basis of labor relations is a certain form of ownership (state, municipal, joint-stock, private, etc.) and a different organizational and legal type of organization (enterprise, institution, etc.), labor relations are divided into generic and specific groups and subgroups: relations in state and municipal enterprises, in private industries (collective or individual), relations in rental industries, etc., relations in organizations with different forms of ownership.
The sometimes transformation of state enterprises into joint-stock companies or the transition to private hands leads to a change in the labor relations of the employee with the owner and employer. Labor legislation (Article 75 of the Labor Code of the Russian Federation) established that a change in the owner of an organization or its reorganization is not a basis for terminating labor relations. With the consent of the employee, they continue and their termination at the initiative of the employer is possible only after the registration of the transfer of ownership of the property to the new owner in the event of a reduction in the number or staff of employees.
The norms of labor law regulate only the actual social relations on labor in production, establishing the legal rights and obligations of their parties.
All relations that are the subject of labor law form a kind of block of relations, regulated mainly in the contractual legal (private law) order.
The second block of the subject of labor law includes relations regulated exclusively in public law or, in other words, in a centralized normative manner. The main specificity of the relations that make up this block is the presence in them as subjects of "agents" of the state, endowed with power powers of a control, supervisory or law enforcement nature.
This block includes two groups of relations closely related to labor:
= supervisory relations arising between the employer and the bodies of general or specialized state supervision over compliance with labor legislation and control over compliance with labor legislation (preceding or accompanying labor relations);
= procedural relations , emerging between the disputing parties and the judiciary in the resolution of individual labor disputes (accompany labor relations or follow from them).
In connection with the transition to new forms of management and market relations, two types of relations began to appear in the economy:
~ relations under an employment contract;
~ labor relations entered into by the owners of the property of a joint-stock company (or other type of collective form) to participate in the labor process in this joint-stock company.
Differences in the legal status of these relations are associated with the order of entry into them, their changes and termination, with the distribution of income.
In the case when an employee is also a shareholder (co-owner of the organization's property), he has a dual status: labor and civil law (when distributing profits and bearing material liability for possible losses of the organization).
Quite closely, labor relations are in contact with legal relations in the field of civil law related to labor. They should not be mixed:
» in labor law, an employee is included in the labor collective, but in civil law this does not happen and is individualized;
» the subject of an employment relationship is the process of labor according to a certain labor function in the general organization of labor, and in civil law the subject is the materialized result of labor (a book, a picture, etc.);
» obedience to the rules of labor regulations is inherent only in the employment relationship, which is not in civil law;
» in labor law, the organization and labor protection of an employee is the responsibility of the employer; in civil law, this lies with the citizen himself.
Unlike related relations, which are also associated with the realization of the mental and physical abilities of people, labor relations are characterized by the following specific traits:
a) the subject of the relationship - the performer of the work - is included in the team of the enterprise (organization) and by personal labor participates in the implementation of the tasks facing the other subject of the relationship. Such inclusion is usually accompanied by the enrollment of an employee in the staff or payroll of the organization (enterprise) for permanent, fixed-term, temporary or seasonal work. To characterize the employment relationship, the fact of the direct participation of the employee in joint labor activity is important;
b) the content of labor relations is reduced to the performance by an employee of a certain type of work in accordance with his specialty, qualification, position within labor cooperation, and not an individually specific task. The labor function usually corresponds to a certain type of activity in the structure of the organization (enterprise), is not limited to individual production operations and does not end with the manufacture of final products. An employment relationship is an ongoing relationship. Therefore, in necessary cases, caused by the needs of production or the interests of the employee, it is possible to transfer him to another job (permanent or temporary);
c) the work is performed under the conditions of a certain labor regime. These relations proceed in the conditions of the internal labor schedule with the subordination of the employee to the regulated conditions of joint activity. Subordination of subjects to the requirements of labor organization is a necessary element of labor relations.
d) the inclusion of an employee in the organization's team is mediated by a legal fact (employment contract, act of election to a position, etc.).
These signs of labor relations make it possible to distinguish them from other related relations in the field of employment, for example, arising on the basis of separate civil law contracts (contract, assignment, copyright agreement, etc.).
At present, in connection with the transition to a market organization of the economy, with the development of the labor market (labor market), labor relations that arise, as you know, from an employment contract, often for various reasons are given the form of civil relations arising on the basis of a personal contract. contract.
In this regard, it is necessary to know that, according to Article 11 of the Labor Code of the Russian Federation, in cases where it is established in court that a contract of a civil law nature actually regulates labor relations between an employee and an employer, the provisions of labor legislation apply to such relations.
Labor relations arising from membership in organizations (or on the basis of participation in them), to the extent that they do not contradict laws and other regulatory legal acts on labor, are also regulated by laws on the activities of these organizations and their constituent documents. For example, after the privatization, many employees of the former state industries became not only employees of various joint-stock companies, but also working shareholders of these companies. Therefore, they are still subject to labor legislation, labor rights and guarantees. Such shareholders are considered to be working in this joint-stock company under an employment contract, but they, having shares, have acquired a second legal status (ie legal position) under civil law as the owners of this company.
Types of legal relations in labor law
The main legal relationship in labor law is the actual labor relationship between the employee and the employer. An employment relationship is a voluntary legal relationship between an employee and an employer, for the employee to perform a specific labor function for a certain fee in accordance with the internal labor regulations, while the employer provides the necessary working conditions and its payment provided for by labor legislation. From the above characteristics of an employment relationship, it can be seen that it is always bilateral between two subjects, an employee and an employer arising on the basis of an employment contract.
In all forms of organizations (enterprises, institutions) provided for by the Civil Code of the Russian Federation, except for private, without hired labor, there are social and labor relations that are the subject of regulation of labor law. Different forms of organizations associated with different forms of ownership lead to different labor relations, which in turn is the cause of different types of employment contracts.
Labor legislation (Article 1 of the Labor Code of the Russian Federation) nine groups of labor relations:
♦ legal relations (preceding character);
♦ labor relations employee and employer;
♦ legal relations of the team of employees with the employer, its administration on labor organization and management;
♦ relations between the trade union body at work or other body authorized by employees with the employer on improving working conditions and protecting the rights of workers;
♦ legal relationship for Supervision and Control for compliance with labor laws and labor protection.
♦ social partnership relations between representatives of employees, employers and executive authorities of the federal, sectoral, regional (subjects of the Russian Federation), territorial and other levels on negotiating and concluding agreements on social and labor relations, working conditions and its remuneration.
♦ relationship , retraining and advanced training directly from the employer.
♦ relationship related employers and workers in the world of work, which are protective in nature.
♦ relationship by resolution labor disputes.
The main labor relationship may be preceded by the accompanying relations 3-7, which are organizational and managerial character. Relations related to liability, supervision and control, and the resolution of labor disputes are by their nature protective.
All of the listed legal relations are of the labor nature of the legal connection of their subjects and arise on the basis of their free will. Differences between the types of legal relations in the sphere of labor occur in terms of subjects, objects, content, grounds for occurrence and termination.
Types of labor relations are distinguished depending on:
Forms of ownership of the means of labor,
The procedure for the distribution of profits or products of labor,
From the legal form of the enterprise
type of employment contract.
They can be urgent And perpetual, be of a certain character. How many types of labor contracts, so many types of labor relations.
The relations that arise between the employee and the employer regarding the use of hired labor are called labor relations, and taking into account the subject composition - individual labor relations, and form the core of the subject of labor law.
In addition to them, the norms of labor law regulate a complex of relations closely related to labor, which by time of occurrence are divided into three groups:
> relations preceding labor;
> relations accompanying labor;
> labor relations.
However, all relationships are independent, although outwardly they may look dependent.
The independence of each type of labor relationship can be traced according to three criteria:
1) by subjects: collective have their subjects, and individual - their;
2) by content legal relationship: student's legal relationship implies rights and obligations aimed at training the student-worker, collective the legal relationship can be aimed at creating favorable working conditions for the team of employees of this enterprise.
3) by subject: V individual employment relationship, the subject is always the labor process employee, in collective – organizational and managerial issues in relation to the enterprise and work.
In some types of legal relations, their participants may coincide, but in all legal relations there is always an employer represented by the administration or a representative, as well as a citizen-worker.
Among the legal relations in labor law, there are two specific legal relations: student and about work at the same time that arise on the basis of their respective employment contracts. Their specificity lies in the fact that part-time work, along with the main labor relationship, creates a triple labor relationship that exists simultaneously. Student legal relationship is additional to the main one.
According to their subject composition, all closely related labor relations can be differentiated into two groups:
individual relationships;
collective relations.
To the group individual employment-related relations, in particular, include: employment relations arising between a job seeker and a private recruitment agency or a public employment service (preceded by employment); relations for the professional training of a job seeker directly with the employer (also precede labor relations); relations for the professional retraining of an employee of a particular organization directly from the employer, as well as relations for the material liability of the parties to the employment contract (accompanying labor); relations between the state employment service and a person who has temporarily lost his job and earnings regarding the receipt of certain support measures (arising from labor), etc.
Collective relations that can exist only as relations accompanying labor, depending on their nature, are divided into two types:
1) organizational and managerial relations;
2) relations on the settlement of collective labor disputes.
Thus, in addition to the actual labor relations ( labor Relations employee and employer) Article 1 of the Labor Code of the Russian Federation defines eight more groups of relations directly related to labor or preceding, or accompanying, or replacing them, which are also included in the subject of labor law regulation. These include:
a) relationship employment promotion and employment(preceding character):
≈ a citizen with a state agency of the employment service or other agency of employment to search for work and referral to it;
≈ the relationship of a citizen with an employer for employment in the direction of the employment authority;
≈ between the employer and the employment service.
b) organizational and managerial relations of a team of employees with the employer, its administration:
1) relations developing between employers (representatives of employers) and employees (representatives of employees) regarding the conclusion, execution and control over the execution of a collective agreement or agreement;
2) relations that arise between the employer and the team of employees in the course of the employer exercising its powers in the field of local law-making and law enforcement, in the case when its addressee is the entire team of employees or any part of it;
3) relations that develop between a team of employees and an employer when the team implements its powers both independently and through elected representative bodies.
c) organizational and managerial relations a trade union body in production or another body authorized by employees with employers, its administration on improving working conditions, applying labor law, adopting and applying local labor law and protecting workers' rights.
d) protective relationship for Supervision and Control for compliance with labor legislation and labor protection between state labor inspectorates (Federal Labor Inspectorate), specialized inspectorates (Gopromtekhnadzor, Gossanepidem service, Gosatomnadzor, etc.), trade union bodies on the one hand and the administration (its officials), the employer - on the other. These relations arise simultaneously with the main labor relations of the employee.
e) social partnership relations between representatives of employees, employers and executive authorities of the federal, sectoral, regional (subjects of the Russian Federation), territorial and other levels on negotiating and concluding agreements on social and labor relations, working conditions and its remuneration. The participants in these relations are representatives of the three social partners of employees, employers and executive authorities. For the first time, these relations became the subject of regulation of labor law with the adoption on March 11, 1992 of the Law of the Russian Federation “On Collective Contracts and Agreements”.
e) relationship for vocational training, retraining and advanced training directly from the employer. These relationships consist of three types of relationships: student, professional development, and learning leadership. The parties in these relations are: the employee-student, the teacher and the employer. In the same group of relations there are relations arising in connection with professional selection, which can arise both before the conclusion of an employment contract, and in the course of already established employment relations - after hiring in the course of labor activity.
Vocational selection can be carried out in different forms: an interview with a candidate, testing, medical examination, testing, internship, etc. This group also includes relations regarding the establishment, definition and advanced training conducted by special qualification commissions that are created by the employer.
g) relationships associated with liability employers and workers in the world of work, which are protective in nature. The parties to these relations are the employee and the employer who have entered into an employment agreement. These relations are of a dual nature: firstly, the relationship of the employer's liability to the employee for causing harm to his health at work, for violation of the employment contract and labor rights of the employee, etc., and secondly, the relationship of the employee's liability to the employer for causing damage to the employer's property. Relations associated with the responsibility of the parties to an employment contract are special relationships, because they arise only in the event of unlawful actions of the parties and the occurrence of harmful consequences.
Permission labor disputes, as relations arising between the disputing parties (employee and employer) and bodies authorized to consider individual and collective disputes (court, labor arbitration, labor dispute commission, higher body, conciliation commission, with the participation of a mediator). Labor disputes may arise at the stage preceding the employment relationship, before the conclusion of the employment contract, in the course of the employment relationship, and also arise after the termination of the employment relationship. Labor disputes can be both individual in nature and be collective, affecting the interests of the entire team of employees.
2. Elements of an employment relationship
Grounds for labor relations
The basis for the emergence, change and termination of labor relations is the presence of legal facts or their combination, determined by labor legislation. First of all, these are lawful actions of the parties aimed at establishing mutual rights and obligations in connection with the realization by the employee of his ability to work. The legal fact that gives rise to an employment relationship is an employment contract between an employee and an employer, which is the main basis. The main ground may be accompanied by additional grounds, both simple legal facts and their compositions. In certain cases provided for by law (Article 16 of the Labor Code of the Russian Federation) or the charter of an organization, an employment relationship on the basis of an employment contract may arise as a result of:
~ election (election) to a position, if the employee is supposed to perform a certain labor function;
~ election by competition to fill a position, if labor legislation or the charter of the organization defines a list of positions to be filled by competition and the procedure for its implementation;
~ Appointment to a position or approval in a position, when this procedure is established by labor legislation or the charter of the organization;
~ referrals to work by authorized bodies on account of the established quota;
~ a court decision that obliges the employer to conclude an employment contract with a specific employee;
~ actual admission to work with the knowledge or on behalf of the employer or his representative without the proper execution of an employment contract.
Change or termination of labor relations is possible on the basis of legal facts of actions or events. In accordance with labor legislation, actions may be unilateral in nature, the will of both parties or be agreed upon (transfer to another job, to work in another locality, dismissal at the initiative of the employee (Article 80 of the Labor Code) or the employer, death of the employee (clause 6 of Article 83 Labor Code), temporary transfer to another job due to production needs (Article 74 of the Labor Code), etc.).
The content of the employment relationship
♦ labor legislation;
♦ an employment contract;
♦ collective agreement;
♦ social partnership agreements.
A feature of the content of an employment relationship is the simultaneous existence of rights and obligations for both parties and their compliance (the rights of one party correspond to the obligations of the other). The main place in the content of the labor relationship is occupied by the constitutional right of a citizen to work, which is manifested in his right to work at his chosen place of work and labor function and protect it from violation. The leading duty of an employee in an employment relationship is the conscientious performance of a labor function defined by the contract. Labor legislation establishes the immutability of the labor function and the prohibition of the employer to require the employee to perform functions not provided for by the contract and their unilateral change.
The specifics of the employment relationship is the individual and personal nature of the rights and obligations of the parties. Therefore, we can talk about special legal personality, which includes the degree of professional training, the degree of training in special work, and work experience. At the same time, special legal personality must be distinguished from special ability to work, which consists in the ability to perform certain types of work - a pilot, a loader, a driver, etc., which is determined in the process of professional selection during a medical examination.
The employee must personally fulfill his labor duties and is not entitled to replace himself without the consent of the employer, however, in this case there will be another independent labor agreement between the employer and the new employee.
Summarizing what has been said, the following characteristic for labor relations traits:
Property nature (assumed remuneration for work in the form of wages);
Organizational and labor in nature (joining the labor collective and subordination to the internal labor schedule);
Personal character (independence of the work of a particular employee);
Regulatory in nature (regulated by labor legislation and labor individual and collective agreements);
Bilateral (between employee and employer);
Continuing (the performance of labor duties by the employee is not one-time, but continues during the term of the employment contract).
Subjects of labor law and labor relations
Any legal relationship presupposes the presence of certain participants in this relationship. In labor relations parties (subjects) are considered to be persons directly connected with labor relations, who, due to existing features, may be bearers of subjective legal rights and obligations. Labor Code of the Russian Federation in Art. 20 establishes that the parties to labor relations are the employee and the employer.
An individual as a party to an employment relationship
The legal status of a citizen as a subject of labor law differs from the legal status of an employee. The constitutional right to work is recognized for all citizens and is a kind of prerequisite for the emergence of an employment relationship, but not every citizen can become an employee. At the stage of finding a job, theoretically, any citizen can become a subject of labor law relations. The Law of the Russian Federation “On Employment in the Russian Federation” dated April 19, 1991 does not oblige an able-bodied citizen to work and prohibits any form of forced labor. Therefore, the constitutional right, and hence the labor capacity may not be realized. In this case, the volitional side of the labor relationship is manifested. The general subjective right to work must be manifested outwardly in order for a citizen to become a participant in labor law relations.
The legal status of the subject of labor law includes several elements that are established by law:
» labor legal personality (legal capacity, legal capacity and delictual capacity);
» basic labor rights and obligations;
» general and special legal guarantees of labor rights and obligations;
» liability for breach of duty.
The rights, obligations and their guarantees of each subject of labor law are established by labor legislation by various institutions of labor law.
A general mandatory prerequisite for the emergence of the actual labor relationship is the existence of legal personality both for the employee and the employer (individual and legal entity). For an individual, the legal personality of an employee implies the possession of a certain age, which, according to the general rule of labor law, is 16 years old and, in exceptional cases, upon reaching the age of 14, in cases and in the manner established by labor legislation.
An integral element that determines the labor legal personality of an individual is also the state of health, mental state, which is included in legal capacity. A mentally ill citizen under guardianship does not have a labor legal personality and cannot be a subject of an employment legal relationship, since he is not able to be aware of his actions and be responsible for them to the employer.
The legal status of a citizen, in addition to the general one, can be special, which is reflected in separate norms of labor law when regulating the labor of women, adolescents, the disabled, etc. This also includes the existence of special guarantees of labor rights of individual subjects of labor law.
The legal status of a citizen as an employee appears after the conclusion of an employment contract and depends on the type of this contract. An employee is a natural person who has entered into an employment relationship with an employer. The vast majority of employees of enterprises are manual workers, and organizations and institutions are mental workers. Employees as workers are also heterogeneous: engineering and technical. The issue of the legal status and characteristics of the work of employees is considered in more detail by administrative law. On the side of the employee may be a Russian citizen or a foreigner. Labor Code of the Russian Federation in Art. 21 defines the general basic rights and obligations that all employees have. They are the limits of possible (rights) and proper (duties) behavior in labor relations with the employer.
The employer as a party to an employment relationship
An employer is a natural or legal person (organization) that has entered into an employment relationship with an employee. In accordance with federal legislation, in some cases, the employer may be another person entitled to conclude an employment contract. Such person may be a branch of a legal entity. Among legal entities as an employer there can be organizations of any form of ownership: state, municipal, individual (private) and collective (joint stock companies).
Organizational and legal forms of legal entities, features of their activities and other issues related to their legal status are established in the Civil Code of the Russian Federation. These features and differences of legal entities also explain their differences in their labor legal personality.
The legal personality of the employer is determined both by legislation and by the goals and objectives established by the charter of the organization and is special in nature. However, in order to have labor legal personality, a legal entity must not only be registered in the prescribed manner, but also have a wage fund, staffing, can create the necessary working conditions, etc.
In fact, the employer is the owner of property - means of labor and means of production, who in most cases exercises his powers through the bodies authorized by him - the head and the administration, who are his representatives. They exercise all the rights and obligations of the employer.
The bearers of the labor rights and obligations of the employer may be an individual who is an employer, the head of an organization and the bodies of a legal entity or persons authorized by them, in the manner prescribed by law or regulations, constituent documents and local regulations of a legal entity.
The Labor Code of the Russian Federation of 2001 for the first time considered in detail the features of the work of the head of the organization, highlighting the features of its regulation and members of the collegial executive body of the organization in Chapter 43. The Labor Code, defining the features of the work of the head, takes into account a new set of characterizing the work of the head as a role and responsibility, especially the conclusion and termination of the employment contract. In this regard, it is necessary to note the peculiarities of the legal status of the administrative manager, appointed from the moment the enterprise is declared bankrupt until it is transferred by competition to independent management.
The main general rights and obligations of the employer are defined by the Labor Code in Article 22, which are specified in various institutions of labor law.
The role and place of trade unions in labor relations
One of the human rights recognized by the International Covenant on Civil and Political Rights (UN - 1966) is the right to form and join trade unions to protect one's labor interests. Trade unions are the most massive organization of workers for the protection of their socio-economic and labor rights. In Russia, the first Labor Code of 1918 recognized trade unions as subjects of labor law and secured their rights in the field of labor relations. Currently, according to labor legislation, the subject of labor law are trade union bodies registered in accordance with the legislation as legal entities. The legal status of trade union bodies in the sphere of labor at this stage differs in many respects from the former. They now no longer have the right to participate in the organization and management of production, as it was before, but they have the right to participate in the management of the organization as a representative of a team of workers. The collective agreement and social partnership agreement may provide for a broader competence of the activities of the trade union body in matters of work and life than is enshrined in legislation. Trade unions as subjects of labor law participate in the establishment of labor and its payment at all levels from the enterprise to the federal level under social partnership agreements.
Subjects of supervision and control in labor relations
The subjects of labor law and labor relations are the Federal Labor Inspectorate and specialized state supervision.
federal inspection labor(Chapter 57 of the Labor Code of the Russian Federation) was formed in 1998 in accordance with the ILO Convention of 1947 “On Labor Inspection”. It is headed by the Chief State Labor Inspector of the Russian Federation, who is appointed by the President of Russia.
State Sanitary and Epidemiological Service located in the structure of the Ministry of Health of Russia, operates on the basis of the Federal Law "On the sanitary and epidemiological well-being of the population" dated March 30, 1999 and exercises control and supervision over the sanitary condition of production, workplaces, hostels, food facilities, as well as compliance with sanitary and hygienic and anti-epidemiological norms and rules by employers.
Federal Mining and Industrial Supervision of Russia(Gosgortekhnadzor), according to a special list of enterprises, industries and works, supervises (Article 366) work associated with increased danger, using subsoil, working underground, on main pipelines, during mining and the use of explosive and hazardous substances, etc. .P.
State Energy Supervision(Gosenergonadzor), in accordance with Article 367 of the Labor Code of the Russian Federation, supervises safety in the maintenance of electrical and heat-using installations. Like other specialized state inspectorates, it develops rules, instructions, specifications and state standards, which are agreed with the trade union bodies.
State Supervision for Nuclear and Radiation Safety(Gosatomnadzor) provides supervision over nuclear and radiation safety in accordance with the provisions of Art. 369 of the Labor Code of the Russian Federation. It also has the right to bring to administrative responsibility any entities that have violated the established rules in this area.
Employment Service Bodies are also subjects of law and labor relations. The Federal State Employment Service is a unified federal system of bodies and institutions. Financing of the employment service bodies is carried out from the state budget (for the payment of unemployment benefits, scholarships and other payments to the unemployed. The territorial bodies of the employment service are not structural divisions of the relevant executive authorities of the constituent entities of the Federation and local governments. Financing of measures to promote employment of the population, including on social support for the unemployed, financed from the budgets of the subjects of the Federation and the budgets of municipalities.
Jurisdictional bodies, considering individual (commission on labor disputes, court, etc.) and collective (conciliation commission, mediator and labor arbitration) labor disputes are also subjects of labor law and labor relations.
The subjects of legal relations in the sphere of labor are the parties to these legal relations, and in order to single them out, it is necessary to consider all types of legal relations separately.
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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 of Russian law, is subject to regulation, public relations in the most important sphere of society's life - 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, the general theory of 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 in this area, 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; public authorities 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 topic of my term paper is 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 framework of the relevant legal norms, 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 the 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, a social labor relationship acquires a legal form (becomes an employment legal relationship) after its participants have become subjects of the legal relationship that has arisen, 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, as a general rule, arises from the age of 15. But there are also many young people who, while studying in general education 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 during vacation time, a working week of 36 hours is established for him.
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, bear obligations, be a plaintiff and defendant in court.
The legislation provides for various organizational and legal forms of a legal entity. Commercial and non-commercial organizations can act as the subject of an employment relationship. Commercial organizations include 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 budgetary institutions, however, they, based on the wage fund approved by them, 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 generally enshrined 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 an 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). At the same time, individuals cannot fully implement the public law element of an employment relationship through the legal form of an employment contract. 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
The labor law status of a 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 a general education institution in accordance with federal law, an employment contract may be concluded by persons who have reached the age of fifteen to perform light labor that does not cause harm to 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 permit of the body of guardianship and guardianship shall indicate the maximum allowable duration of daily work and other conditions under which 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 their own earnings, scholarships, other incomes 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 in the civil service is 65 years. 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 hiring, a special labor legal personality is assessed, which is expressed in the degree of professional 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 an increased danger to the 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 of official duties;
Compliance with labor discipline, internal labor regulations and technological rules and regulations;
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;
Demand from the employee conscientious performance of 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 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 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 belonging to the employer, his legal status is determined by the presence of rule-making power (adoption of local regulations), administrative and dispositive power (issuance of binding orders regarding the performance of labor duties), disciplinary power (application of incentives, measures disciplinary and material liability).
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 of this enterprise), enjoys the right to hire 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 recognized as individuals duly registered as individual entrepreneurs and carrying out entrepreneurial activities without forming a legal entity, as well as private notaries, lawyers who have established law offices, and other persons whose professional activities are subject to state registration in accordance with federal laws. 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;
Make insurance premiums and other obligatory payments in the manner and in the 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 an employer - an individual, is a written employment contract (Article 309 of the Labor Code of the Russian Federation). An 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 for employees hired for the first time.
Among employers, in addition to legal entities and individuals, another entity is named, endowed in cases established by law with 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 important role in the mechanism of legal regulation, it “translates” the norms of labor law to 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. It is the employment contract that is the legal basis for those interdependent actions of its parties, which must be performed by the parties systematically or periodically in order to exercise their rights in time and to fulfill their obligations. 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 a special type of labor contract.
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The concept and basic elements of civil legal relations. Characteristics of the structure of civil legal relations. Features of public relations related to the consideration of the grounds for the emergence, change and termination of civil legal relations.
Employment relationship - a voluntary legal relationship between an employee and an employer regarding his work, as a result of which the employee undertakes to perform a certain labor function in the specified specialty, qualification, position at this enterprise, subject to the internal labor regulations, and the employer undertakes to provide work, create the necessary working conditions and pay for work in accordance with the labor contribution of the employee.
Labor relations arise as a result of the conclusion of an employment contract.
Features of labor relations:
- These are legal relations on the use of labor of citizens, foreign citizens and stateless persons as employees. The subjects (parties) are the employee and the employer.
- They have a complex set of rights and obligations of subjects, that is, each of the subjects has rights and obligations, and bears not one, but several obligations. The employer is responsible either himself or through his representatives (the head of the organization, his deputies).
- They cover the whole complex of mutual rights and obligations of subjects, that is, they are uniform legal relations.
- They are of a continuing nature, that is, the rights and obligations of subjects are realized not by one-time actions, but by systematic or periodic ones.
Signs of labor relations:
- The rights and obligations of an employee who are obliged only by their labor to participate in the production or other activities of the enterprise are of a personal nature.
- The employee is obliged to perform a certain predetermined function, that is, work in a certain specialty, qualification or position. Under civil law contracts, an employee performs an individually specific task by a certain date.
- The performance of the labor function is carried out in the conditions of general labor, which necessitates the subordination of the subjects of the labor legal relationship to the rules of the internal labor regulations, that is, the inclusion of citizens who have concluded an employment contract in the composition of working organizations (labor collective).
- Compensatory nature of labor relations, which is expressed in the payment of wages. Payment is made for the living labor expended, carried out by the employee systematically at the set time, and not for the specific result of materialized labor.
- The subjects of labor relations have the right to terminate legal relations without sanctions, but in the manner prescribed by labor legislation.
The types of labor relations depend on the relevant labor relations and on the type of employment contract underlying the emergence of this employment relationship.
Employment contract.
An employment contract may differ according to the form of ownership, the organizational and legal form of the enterprise, and the types of employment contracts.
There are two specific employment contracts:
1. Student - is concluded with a person whose duties include not the performance of labor functions, but the acquisition of knowledge and skills.
2. An employment contract concluded with part-time workers - this employee is in two labor relations: at the main place of work and combined.
In order for a person to become an employee, it is necessary to have labor legal personality (a single ability of individuals to be the subject of labor relations). Includes: legal capacity, legal capacity and delictual capacity (the ability to bear responsibility). It is necessary to have an age criterion corresponding to the legislation and a strong-willed criterion.
The peculiarity of labor law is that a person with limited legal capacity may be a subject of labor law if this limitation does not create obstacles to work.
Restriction of employment legal personality may take place in relation to foreign citizens and stateless persons. Labor personality is limited by a court verdict that has entered into legal force (deprivation of the right to hold a certain position or engage in certain activities).
Employment legal personality allows a person to acquire the legal status of a subject of labor law - a set of rights and obligations of an individual, enshrined in the norms of the TP, guarantees of these rights, responsibility for failure to perform or improper performance of duties.
Worker - a person who has an employment relationship with an employer on the basis of an employment contract and directly performs a labor function.
Employers- legal entities, individuals endowed by law with the right to conclude, amend or terminate an employment contract.
An employment relationship is based on the free will of its participant, the legal expression of which is an employment contract - a bilateral legal act. This is the basis for most employment relationships. In some cases, the conclusion of an employment contract is preceded by a competition or elections.
Signs of an employment contract:
- A voluntary agreement of the parties, that is, a mutual expression of will aimed at establishing labor relations between the employee and the employer.
- The main responsibilities of the parties are determined.
- The parties are the employee and the employer, and the employer does not depend on the form of ownership.
By concluding an employment contract, the employee undertakes to perform a certain labor function, that is, to work in one or more professions, specialties or positions, according to qualifications, and also to obey the internal labor regulations.
The employee is included in the staff or labor collective of the enterprise and acquires the right to participate in the management of this organization. The employer is obliged to organize the work of the employee, to ensure healthy, safe working conditions. An employee who has concluded an employment contract is subject to compulsory social insurance.
The necessary conditions:
- Direct - are fully included in the employment contract, are determined by agreement of the parties.
- Derivatives - provided for by laws, other central and local regulations.
The conditions that are developed by the parties themselves - direct - are divided into several groups:
- obligatory (required)- without them, the employment contract is not considered concluded and labor relations cannot arise:
a) information about the employee and the employer. Data about the employer include: information regarding its name and legal form; information reflecting the location of the legal entity or entrepreneur (legal address). Information about the employee: full name; location; passport data and others. This information indicates that the citizen agrees to work for this particular employer;
b) place of work indicating the structural unit in which the employee is hired. Place of work - a specific organization with which an employment contract has been concluded, located in a certain area on the day the employment contract is concluded. The place of work does not cover the entire territory, but the part where the organization is located, since organizations can create branches in other settlements, as a result of which the place of work will not coincide with the location of the enterprise. The location of a legal entity is the locality in which its permanent body is located. The location of the entrepreneur is the locality where he was registered. The place of work should be distinguished from the workplace. Workplace - a place of permanent or temporary stay of an employee in the process of labor activity. It can be a specific workshop, department, equipment;
c) labor function - work in one or more professions, specialties, positions, indicating qualifications in accordance with the staff list of the employer, functions, duties, job description. The distinction between the concepts of profession and specialty is due to the division of labor;
d) basic rights and obligations of the employee and the employer;
e) the term of the employment contract. This condition is mandatory only for fixed-term employment contracts. If it is concluded for a certain period, then this must be recorded in the employment contract. The Labor Code of the Republic of Belarus establishes the maximum duration of a fixed-term employment contract - up to 5 years. Employment contracts can be concluded for an indefinite period (permanent work - work that does not imply completion at a certain time due to its nature) and for a fixed period: no more than 5 years - a fixed-term employment contract; during the execution of a certain work; for the duration of the duties of a temporarily absent employee; for the duration of seasonal work; temporary employment contract;
f) the mode of work and rest, if it differs from the general rules established by the employer;
g) conditions of remuneration, including the size of the tariff rate or official salary of the employee, additional payments, incentives;
- additional- they can be included by agreement of the parties; there is no exhaustive list of these conditions
- optional- optional conditions include, for example, the establishment of a probationary period. An employment contract is concluded with a preliminary test in order to verify the compliance of the employee with the assigned work. It is concluded only by agreement of the parties. The condition of the preliminary test must be fixed in the employment contract, otherwise the employment contract is considered ordinary. The term of the preliminary test is no more than 3 months. The test is one time. The employee has the right to terminate the employment contract concluded with the condition of a preliminary test three days before its expiration at his own request. The employer may also terminate such an agreement on the expiration date of the preliminary test period. If the employment contract has not been terminated before the expiration of the probation period, then the employee is considered to have passed the probation, and termination of the employment contract will be possible only on general grounds.
Employment relationship - this is a social relationship regulated by the norms of labor law that arises on the basis of an employment contract, according to which one subject (employee) undertakes to perform a labor function subject to the rules of internal labor regulations, and the other subject (employer) is obliged to provide work, ensure healthy and safe working conditions and pay the work of an employee in accordance with his qualifications, the complexity of the work, the quantity and quality of work.
- mutual rights and obligations of its subjects, defined by the labor contract, labor legislation and the collective agreement (agreement).
The employee is obliged to accurately fulfill his labor function stipulated by the contract, obeying the internal labor regulations of this production, and the employer is obliged to comply with labor legislation and all working conditions of the employee provided for by the labor and collective agreement and labor legislation.
The labor relationship includes a number of rights and related obligations of the parties: working hours, rest time, remuneration, guarantees and compensations, etc. The volume and nature of labor rights and obligations depend on many factors and are specified in relation to the labor function (specialty, qualification, position) of the employee.
Features of the employment relationship:
- the subjects of an employment relationship are the employee and the employer;
- an employment relationship has a complex set of rights and obligations of its subjects: each of them acts in relation to the other both as an obligated and as an authorized person, and also bears not one, but several duties;
- despite the complex composition of rights and obligations, the employment relationship is unified;
- the continuing nature of the employment relationship (the rights and obligations of subjects are implemented not by one-time actions, but systematically, by performing those actions that are necessary during the established working hours).
However, persons who have entered into civil law contracts (personal contract, assignments, paid services, copyright agreement, etc.) can also engage in labor activity.
Characteristic features of an employment relationship (delimiting it from related, including civil law, relations):
- The personal nature of the rights and obligations of an employee who is obliged by his labor to participate in the production or other activities of the employer (the employee does not have the right to represent another employee instead of himself or entrust his work to another, etc., such a restriction is not in the contract).
- The employee is obliged to perform the labor function stipulated by the employment contract, and not a separate (separate) individually-specific task by a certain date, which is typical for a civil law contract.
- The performance by the employee of his labor function is carried out in the conditions of collective (cooperative) labor, which is connected with the inclusion of the employee in the collective (staff) of workers with the ensuing need to obey the established rules of internal labor regulations.
- The reimbursable nature of the labor relationship is manifested in the employer's response to the performance of the labor function - in the issuance of the appropriate wages (payment is made for the worker systematically carried out during the established working hours of the living labor expended, and not for the specific result of materialized (past) labor, as in civil law relation).
- The right of each of the subjects to terminate the employment contract without any sanctions, but in compliance with the established procedure.
Employment legal personality is the ability of a given person (natural or legal) recognized by labor legislation to be the subject of labor and directly related legal relations, to have and exercise labor rights and obligations and be responsible for labor offenses. In labor law, unlike, for example, civil law, legal personality includes three elements:
- labor capacity - the legally recognized ability to have labor rights and obligations;
- labor capacity - the ability, in accordance with labor legislation, to personally acquire and exercise labor rights and obligations by one's actions;
- labor delinquency - the ability recognized by labor legislation to be responsible for labor offenses.
In labor law, these three legal abilities are inseparable and arise in the subject of law at the same time - from the moment of the beginning of labor activity (in civil law, for example, the emergence of legal capacity and full legal capacity have a gap in time), therefore we are talking about a single labor legal capacity in labor law, t .e. legal personality.
Labor personality is characterized by two criteria:
- age;
- strong-willed.
It is important to know that, in contrast to civil legal capacity that arises from the moment of birth, labor legal personality is timed by law to reach a certain age, namely, at 16 years old. In certain cases and in the manner provided for by the Labor Code of the Russian Federation, an employment contract may be concluded with persons under the age of 16 (Article 63 of the Labor Code of the Russian Federation of the Labor Code of the Russian Federation) in the following cases:
- obtaining basic general education or continuing to master the program of basic general education in a form other than full-time;
- leaving a general education institution in accordance with federal law.
In these cases, an employment contract may be concluded by persons who have reached the age of 15 years.
Persons studying in educational institutions who have reached the age of 14 may be employed:
- to perform light work that does not disrupt the learning process,
- in my spare time, but
- mandatory with the consent of one of the parents (custodian) and the guardianship and guardianship authority.
The indicated age criterion of labor legal personality is due to the fact that from that time on a person becomes capable of systematic work, which is enshrined in law (Article 63 of the Labor Code of the Russian Federation). This article also establishes that in cinematography, theater and concert organizations, circuses, with the consent of one of the parents (guardian) and the permission of the guardianship and guardianship authority, it is allowed to conclude an employment contract to participate in the creation and (or) performance (exhibition) of works without harm to health and moral development with persons under 14 years of age. In this case, the employment contract is signed by the parent (guardian) on behalf of the employee, but with the permission of the guardianship and guardianship authority.
Based on the physiological characteristics of the teenager's body and the need for their moral education, the use of labor by persons under the age of 18 is prohibited:
- at work in harmful and dangerous working conditions;
- at work, the performance of which may harm their health and moral development (gambling business, work in nightclubs, bars, cabarets, etc. (Article 265 of the Labor Code of the Russian Federation).
It should be borne in mind that, along with age, labor personality is characterized by a volitional criterion, which is associated with the actual ability of a person to work. It is considered as physical and mental abilities for work, which, however, cannot limit equal labor personality for all.
Labor personality is characterized by legislation as equal for all citizens (individuals). This means that citizens are free to exercise their rights, and natural differences between them, such as gender, age, nationality or property status and other circumstances, should not be discriminatory in the labor sphere.
Discrimination is prohibited by the Constitution of the Russian Federation, as is forced labor, which is reflected in the Labor Code of the Russian Federation at the level of the basic principles of labor law (Article 2).
The legal status of the subject of labor law is its legal status, determined by labor legislation. It consists of the following elements.
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