Labor law as a subject. Forms of legal regulation of labor

Legal regulation labor is carried out through the adoption of regulatory legal acts containing labor law norms I (normative form of regulation), by concluding collective agreements on social and labor issues, individual labor contracts (contractual form of regulation - article 9 of the Labor Code of the Russian Federation), as well as through the issuance by the employer of individual legal acts of an administrative nature (orders, instructions) (individual legal form of regulation). The concept of "labor legislation" includes labor protection legislation. The system of normative acts and labor agreements in accordance with Art. 5 of the Labor Code of the Russian Federation form the following sources.

The Constitution of the Russian Federation. It establishes the basic rights and obligations of citizens in social and labor sphere, establishes guarantees for their implementation. Constitutions of the republics within the Russian Federation. Charters of subjects of the Russian Federation containing labor standards. International legal acts, including conventions of the International Labor Organization (hereinafter referred to as the ILO), ratified by the USSR and (or) the Russian Federation, ILO recommendations, international treaties I (Article 10 of the Labor Code of the Russian Federation). International acts according to Art. 15 of the Constitution of the Russian Federation are part of the Russian legal system. Constitutional laws containing labor law norms. The Labor Code of the Russian Federation was adopted on December 30, 2001. Entered into force, with the exception of the first part of Art. 133, I since February 1, 2002. The code is legal basis new labor law Russia. All other acts on the work of employees must comply with the provisions of the Labor Code of the Russian Federation. In the event of a conflict between the Code and other federal laws, I containing the norms of labor law, the Labor Code of the Russian Federation is applied. Comprehensive intersectoral federal laws containing not only labor law norms, but also provisions relating to other branches of law (financial, administrative, civil, etc.). Industry federal laws. Decrees of the President of the Russian Federation amending the current labor legislation. Decrees of the Government of the Russian Federation. Normative acts of federal bodies executive power. Including acts of the former Ministry of Labor of the Russian Federation and the current Ministry of Health of the Russian Federation. Normative acts of federal industry bodies government controlled. Laws and other legal acts of subjects of the Russian Federation. Regulations bodies local government(Art. 7 TKRF). Local regulations containing labor law. Regulations(conditions) of centralized collective agreements on social and labor relations and collective agreements of organizations.

One of the most significant features of the sources of labor law in Russia is the very widespread use of the practice of local legal regulation of labor.

Local regulation labor is carried out by the employer independently, and in cases established by law, by the collective agreement of the organization, taking into account the opinion of the representative body of workers (Article 8.372 of the Labor Code of the Russian Federation). Local acts operate within the same organization (one employer). Such regulation makes it possible to reconcile the interests of employees and employers, establish a higher level of social and labor guarantees in comparison with the law, and implement many norms of the Labor Code of the Russian Federation that require appropriate local decisions. Local norms serve legal basis to resolve disputes in courts. Local regulatory regulation is carried out in the organization through the adoption of acts of a complex nature (collective agreement, internal labor regulations) or special regulations on certain types social labor relations(regulations on wages on bonuses to employees, staffing, vacation schedule, job descriptions, regulations on personal data of employees, etc.). Local acts cannot worsen the position of employees in comparison with the law and the collective agreement, if any, in the organization.

Any non-individual labor acts as a system of social relations arising between people, in this capacity it is an object of legal regulation.

Parties to an employment relationship: an employee and an organization (legal entity) or another citizen who are an employer for this employee (Article 20 of the Labor Code of the Russian Federation). Signs of labor relations: this is the personal performance by the employee for pay of work in a certain specialty, qualification or position and the employee's subordination to the rules of internal labor regulations when the employer fulfills the obligations to provide work stipulated by the contract, create proper working conditions, timely and full pay.

In addition to the labor itself, the subject of labor law in Russia is related to labor relations in the organization of labor and its management; employment with a specific employer and promotion of employment of the population; professional training, retraining and advanced training of employees; social partnership; the participation of workers and their representatives (trade unions) in the establishment of working conditions and the application of labor legislation; liability of employees and employers; supervision and control over compliance with labor legislation; resolution of individual and collective labor disputes (Article 1 of the Labor Code of the Russian Federation).

Labor law applies to all employers, regardless of their organizational and legal forms and forms of ownership, to all employees who have concluded labor contract, including municipal employees, working founders (participants) of commercial organizations, foreign workers, employees of the executive bodies of public associations and political parties, employees of the prosecutor's office and private security.

The work of persons undergoing alternative civilian service is now also included in the scope of labor law (Article 349 of the Labor Code of the Russian Federation). Separate norms of labor legislation apply to police officers serving on the basis of contracts in the internal affairs bodies, employees of customs authorities and other paramilitary units. Since February 1, 2005, the norms of labor legislation can be applied to state civil servants only in a certain part, not provided for by the Law of the Russian Federation of July 27, 2004 “On the State Civil Service Russian Federation". The rules of labor law do not apply to military personnel in the performance of military service duties (unless otherwise provided by legislation on the status of military personnel), members of the boards of directors of commercial organizations, persons working under civil law contracts. Self-organized work and entrepreneurs without education legal entity, private detectives, notaries, lawyers.

labor law method- this is a set of techniques, means, methods by which the regulation of the work of workers is carried out. Labor law has the following features of legal regulation.

The method of establishing the rights and obligations of subjects of labor law is characterized by: a combination of centralized and local (within the organization) legal regulation of labor, normative and (or) contractual regulation of social and labor relations; collectively contractual and individually contractual regulation of labor, participation of employees and other collective subjects of labor law in rule-making; division of labor legislation into general and special. General labor law applies to all participants in labor relations. Special - has a limited scope depending on the characteristics of labor or the subject composition of its participants (for example, women, adolescents, etc.).

The degree of freedom of participants in labor and related relations is characterized by a combination of optional and imperative legal regulation. Dispositiveness of labor law means that the parties have the opportunity to choose options for behavior.

Labor law principles

Labor law principles- these are the main guiding principles enshrined in law that determine the content and direction of the legal regulation of labor and related social relations. The principles that have been enshrined in the general provisions of the Labor Code of the Russian Federation serve the purposes of the correct construction of labor legislation. They ensure internal consistency, the unity of the legal regulation of labor in the system of Russian law as a whole, serve the correct application of the law, clarify its meaning, and eliminate conflicts and contradictions. Based on the generally recognized principles and norms of international law, and in accordance with the Constitution of the Russian Federation, the principles of labor law are (Articles 2, 3, 4 of the Labor Code of the Russian Federation):

  • freedom of labor and the prohibition of forced labor. The principle of freedom of labor has a special legal meaning. It determines the content of most of the norms of the new labor legislation of Russia and guarantees citizens the right to freely dispose of their abilities for work, to exercise them in any form not prohibited by law, to freely choose a profession, type of activity or occupation. Unemployment of a citizen is not grounds for bringing to responsibility. Forced labor is not allowed. Article 4 of the Labor Code of the Russian Federation gives the concept of forced labor. This is the performance of work under the threat of punishment or as punishment (violent influence). It is not considered forced labor, due to the legislation on military service and military, alternative civil service, work performed under emergency conditions, and work on the basis of a court verdict that has entered into legal force;
  • equality of rights and opportunities for employees, including the equal right to professional training and promotion (work), as well as the prohibition of discrimination in the sphere of labor (Article 3 of the Labor Code of the Russian Federation). Everyone has an equal opportunity to realize their labor rights. No one can be limited in rights and labor freedoms and cannot receive any benefits on grounds not related to the business qualities of employees;
  • unemployment protection and employment assistance. This beginning of labor regulation is manifested in the norms of labor legislation that establish the procedure for the emergence, change and termination of labor relations. The principle of protection against unemployment is most fully and consistently implemented in the legislation on employment in the Russian Federation;
  • Ensuring the rights of workers to fair working conditions, including safe conditions work and the right to rest. Implemented in labor protection legislation and guaranteed by measures legal liability(administrative, criminal, material) in case of non-compliance with such legislation;
  • Ensuring the rights to timely, full and fair wages that guarantee a decent existence for workers and their families. This principle is reflected in mandatory requirements on the establishment of remuneration of employees, the rules for accrual and payment wages. essential legal guarantee there are also norms on the minimum amount of an employee's earnings (Articles 129, 133 of the Labor Code of the Russian Federation);
  • ensuring equal pay for work of equal value (Articles 22, 132 of the Labor Code of the Russian Federation);
  • ensuring the rights of workers and employers to associate, including the right to form and join trade unions. The right to association provides full protection of the rights and interests of the parties to an employment relationship, using the institution of representation and participation in collective labor regulation;
  • ensuring the rights of employees to participate in the management of the organization;
  • ensuring the rights of employees and employers to social partnership, including participation in the contractual regulation of labor;
  • ensuring the rights of workers to state protection their work, including the right to judicial protection and implementation state supervision and trade union control over the implementation of labor legislation;
  • ensuring the rights of employees to the protection of honor and dignity during the period of work, to compensation for harm in connection with the performance job duties;
  • ensuring the rights of workers to compulsory social insurance;
  • ensuring the rights of workers to individual and collective labor disputes, the right to strike.

Forms of legal regulation of labor. The system of sources of labor law. Local labor regulation

Local regulatory regulation is carried out in the organization through the adoption of acts of a complex nature (collective agreement, internal labor regulations) or special regulations for certain types of social and labor relations (regulations on wages on bonuses to employees, staffing, vacation schedule, job descriptions, regulations about personal data of employees, etc.). Such acts cannot worsen the situation of employees in comparison with the law and the collective agreement, if any, in the organization.

In the field of labor regulation, it is also important arbitrage practice. In this sense, a special role is played by generalizations of the practice of applying labor legislation and the clarifications adopted on this basis by the Plenum of the Supreme Court of the Russian Federation.

Subjects of labor law

In relations regulated by labor law, several groups of subjects are involved. Citizens. These are, firstly, citizens participating in employment relations and vocational training in the direction of the employment service authorities (relations preceding labor) or in procedural relations regarding dismissal from work (relations arising from labor), and secondly, citizens, being employees, thirdly, citizens acting as employers for other citizens who have concluded an employment contract with them.

In accordance with Art. 63 of the Labor Code of the Russian Federation, it is allowed to conclude an employment contract with persons who have reached the age of sixteen years. In cases of receiving the main general education or leaving, in accordance with the federal law, a general educational institution, it is allowed to hire adolescents who have reached the age of 15 years. From the age of 14, students are allowed to work educational institutions to perform light labor that does not harm their health and does not violate the learning process in their free time from study and only with the consent of one of the parents (guardian, trustee) and the guardianship and guardianship authority. Persons under the age of 14 may be admitted to creative organizations to participate in the creation and (or) performance of works. The law establishes a minimum age for entry into employment, but general rule does not contain age limits for work under an employment contract. age limit provided, for example, for the performance of duties of the state or municipal service, filling the positions of heads of state educational institutions.

State or municipal authorities general competence. These are the executive bodies of the state or municipal government acting as the owners of employers' organizations, representatives of the owners of such organizations or participating in social partnership relations.

Social partnership relations are relations with the participation of collective subjects of labor law or their representatives. Representatives of employees in the social partnership are: trade unions or other representatives elected by employees. Representatives of the employer during collective bargaining, conclusion or amendment of the collective agreement are the head of the organization or persons authorized by him.

The parties and representatives of the parties form the bodies of social partnership. These are commissions for the regulation of social and labor relations. At the federal level, a permanent Russian tripartite commission for the regulation of social and labor relations is formed. In the constituent entities of the Russian Federation and at the territorial level, tripartite commissions are being created to regulate social and labor relations. In organizations - bilateral commissions of representatives of employees and the employer.

The main act that comprehensively regulates the issues of labor and social protection of employees in the organization is the collective agreement. Collective agreements are the most common form of contractual regulation of labor in practice. By definition, Art. 40 of the Labor Code of the Russian Federation, a collective agreement is a legal act that regulates social and labor relations in the organization and concluded by employees and the employer represented by their representatives. Parties collective agreement employees of the organization, branch, representative office of the organization and the employer - a legal entity or a branch, representative office. The content and structure of the collective agreement are determined by the parties. It may include mutual obligations of employees and the employer on issues of remuneration, payment of benefits, compensations, employment, retraining, release of employees, improvement of working conditions and labor protection of employees, including women and youth, regulation of working hours and rest time, including issues of providing and the duration of holidays (Article 41 of the Labor Code of the Russian Federation), etc. The collective agreement establishes working conditions that are more favorable in comparison with established laws, other regulatory legal acts, agreements.

Liability of the parties to an employment relationship

The employee must take care of the property of the employer and other employees, keep it and use it correctly, not disclose secrets protected by law, immediately inform the employer about the threat to his property. In the event of a guilty violation of these obligations and causing damage to the property of the employer or other persons for the safety of whose property the employer is responsible, the employee is held financially liable.

The material liability of the employee comes with the simultaneous presence of four mandatory conditions. The absence of at least one of them excludes the liability of the employee. Such conditions are: the presence of direct actual damage, the unlawfulness of the employee’s behavior, guilt in causing damage, and the presence of a causal relationship between the employee’s behavior and the consequences that have occurred (Article 233 of the Labor Code of the Russian Federation, etc.).

1. The employee is obliged to compensate the employer for the direct actual damage caused to him. Unreceived income (lost profit) is not subject to recovery. Under direct actual damage means a real decrease in the employer's cash property or deterioration in the condition of the said property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition or restoration of property.

2. Illegal is the failure to perform or improper performance employee of the duties assigned to him by law, others, including local regulations, job descriptions, orders (instructions) of the employer or an employment contract.

3. The guilt of the employee may consist of intentionally causing harm or causing it as a result of negligent performance of labor duties. The form of guilt is taken into account when calculating the damage caused, determining the type liability employee or when calculating the damage to be recovered. The guilt of the employee, as a general rule, is proved by the employer, with the exception of cases established by law, when the employee is released from liability only if he proves his innocence (Article 243 of the Labor Code of the Russian Federation).

4. causation between damage and improper behavior of the employee must be objective. An employee cannot be held liable for accidental damage or for damage caused by third parties and not related to his actions or inaction.

The labor legislation of the Russian Federation establishes two types of material liability of employees: limited - within the limits of the average monthly earnings of this employee, and also full - in the amount of damage caused.

Liability in the full amount of the damage caused can be assigned to the employee only in cases where statutory(Art. 243-245 of the Labor Code of the Russian Federation).

Employees under the age of eighteen are fully liable only for intentional infliction damage, for damage caused in a state of alcoholic, narcotic or toxic intoxication, as well as for damage caused as a result of a crime or administrative offense. Liability in full for the damage caused to the employer can be established by an employment contract concluded with the head of the organization, deputy heads, chief accountant.

Recovery from the guilty employee of the amount of damage caused is carried out by order of the employer or the recovery is carried out in judicial order. Compensation for damage is made regardless of bringing the employee to disciplinary, administrative or criminal liability for actions or inaction that caused damage.

The material liability of the employer to the employee occurs in cases of illegal deprivation of his opportunity to work (Article 234 of the Labor Code of the Russian Federation). Such an obligation, in particular, exists if earnings are not received as a result of: illegal removal of an employee from work, his dismissal, delay by the employer in issuing a work book to an employee, entering into work book incorrect or inconsistent with the law formulation of the reason for the dismissal of the employee and in other cases provided for by law and (or) the collective agreement.

In addition, the employer who caused damage to the property of the employee compensates for this damage in in full. The liability of the employer for the delay in the payment of wages also occurs in case of violation by the employer of the established terms for the payment of wages, vacation pay, payments upon dismissal and other payments due to the employee. In this case, the employer is obliged to pay them with interest ( monetary compensation) in the amount of not less than one three hundredth of the current refinancing rate of the Central Bank of the Russian Federation (Article 236 of the Labor Code of the Russian Federation). Such liability is enforced by the courts.

Protection of labor rights and interests of employees by the state labor inspectorate and trade unions

The Federal Labor Inspectorate is a unified centralized system of state bodies exercising general supervision over compliance with labor laws. The Inspectorate ensures that employers comply with labor legislation and other normative legal acts containing labor law norms.

In the structure of the inspectorate, there are two main divisions (directions of state supervision): the legal inspectorate (legal labor inspectors) and the labor protection inspectorate (labor protection inspectors). The powers of inspectors are determined by the Labor Code of the Russian Federation, the norms of other federal laws, regulations on labor inspection, approved by the Government of the Russian Federation and the federal executive body, in whose structure the labor inspection is located.

So, in accordance with the tasks assigned to them, the bodies (officials) of the federal labor inspectorate:

  • conduct inspections, surveys of employers;
  • issue binding orders to eliminate identified violations, to bring the perpetrators to justice in accordance with federal law;
  • exercise supervision and control over compliance with the procedure for investigating and recording accidents, occupational diseases at work, participate in the investigation of accidents at work or conduct it independently;
  • give opinions on projects normative documents on their compliance with the requirements of labor legislation;
  • suspend the work of organizations, individual production units and equipment in case of violations of labor protection requirements;
  • remove from work persons who have not passed in in due course education safe methods and methods of performing work, briefing on labor protection, internships at workplaces and testing knowledge of labor protection requirements;
  • bring to administrative responsibility in the manner prescribed by the legislation of the Russian Federation, persons guilty of violating laws and other regulatory legal acts containing labor law norms.

Solutions state inspectors labor can be challenged in court. The heads and other officials of organizations guilty of violating labor legislation, obstructing the activities of the inspector, failing to comply with his legal requirements and instructions, bear administrative (fine, disqualification), disciplinary or criminal liability in cases and in the manner established by federal laws.

An employee who believes that his rights have been violated has the right, at his choice, to apply either to the court, or, if the case is not related to exclusive competence court, appeal against the actions of the employer to the commission created in this organization for labor disputes(hereinafter - KTS).

Creation of CTS in the organization is not obligatory. It is formed at the initiative of employees and (or) the employer from an equal number of representatives of employees and employers.

This is advisable in organizations that have a staff of employees who are familiar with labor legislation and the practice of its application.

An employee can apply to the CCC within three months from the day when he learned or should have learned about the violation of his right. The commission is obliged to consider an individual labor dispute within ten calendar days from the date the employee submits the application.

The decision of the commission on labor disputes is subject to binding. Such a solution has legal force court decisions. In the event that the employer fails to comply with the decision of the CCC within the prescribed period, the commission issues a certificate to the employee, which is executive document. The certificate is sent by the employee for execution to the service bailiffs or directly to the bank serving the employer.

All individual labor disputes between the employee and the employer, with the exception of disputes for which the special order consideration may be subject to litigation. Magistrates consider all disputes arising from labor relations, with the exception of cases on the reinstatement of illegally dismissed workers and payment for forced absenteeism. Individual labor disputes are resolved directly in court: on refusal to hire, on reinstatement regardless of the grounds for termination of the employment contract, on changing the date and wording of the reason for dismissal, on transferring to another job, on payment for the time of forced absenteeism, or on payment of the difference in wages for the time of performing lower-paid work, of persons working for employers - individuals, disputes of persons who believe that they have been discriminated against, on compensation by the employee for harm caused to the organization.

Collective labor disputes and the procedure for their resolution. The right to strike, organizing and conducting strikes

The decision to recognize the strike as illegal is made supreme courts republics, regional, regional courts, courts of cities federal significance, courts autonomous region and autonomous regions at the request of the employer or the prosecutor. Such a decision of the court shall be subject to immediate execution and the strike must be terminated. Employees are responsible for violating the rules for conducting a strike. They may be subject to disciplinary action, including those fired for violating

The subject of which is a set of social relations regulated by the norms of this industry.

The subject of labor law regulation Russia are the relations between people in the process of their labor activity called labor relations. But it should be noted that the subject of regulation of labor legislation also includes a number of relations directly related to labor.

Labor relations - relations based on an agreement between the employee and the employer on the personal performance by the employee of a labor function (work and positions in accordance with the staff list, profession, specialty, indicating qualifications; a specific type of work assigned to the employee), subordination of the employee to the rules of internal labor regulations when the employer provides the working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract (Article 15 of the Labor Code of the Russian Federation).

Types of labor relations

The base part of the subject of the legal regulation of labor law are labor relations, among which it is necessary to highlight such varieties as:

  • labor relations at the main place of work;
  • labor relations at part-time work (Chapter 44 of the Labor Code of the Russian Federation);
  • labor relations at temporary work for up to two months (Chapter 45 of the Labor Code of the Russian Federation);
  • labor relations for seasonal work(Chapter 46 of the Labor Code of the Russian Federation);
  • labor relations of employees working for employers - individuals 1 (Chapter 48 of the Labor Code of the Russian Federation);
  • labor relations when doing work at home (Chapter 49 of the Labor Code of the Russian Federation);
  • labor relations in the public service;
  • labor Relations certain categories employees (athletes, employees in the representative office of the Russian Federation abroad, etc.).

The second component of the subject legal regulation of labor law are relations directly related to labor (derivatives of labor). These relations are based on labor relations and cannot exist in isolation from them.

Article 1 of the Labor Code of the Russian Federation distinguishes nine groups of such relations.

1. Employment relationship with this employer.

The process of employment can be varied: firstly, a person can look for a job himself; secondly, he can apply to a commercial recruitment agency; Thirdly, a person can apply to public service employment. Labor law regulates, in essence, only the third option of employment, the obligatory participant of which is the employment service. The basis for the legal regulation of this type of employment is determined by federal law. Law of the Russian Federation of April 19, 1991 No. 1032-1 “On Employment in the Russian Federation” regulates this institution of labor law, the following subgroups of legal relations:

Relations between the employment service and employers regarding the definition of vacant jobs. The legislation on employment of the population establishes the obligation of employers to report to the state employment service information about available job vacancies.

The relationship between the employment service and citizens wishing to find a job regarding their registration as unemployed, determining their qualifications and finding a suitable job for them. This subgroup includes the training of the unemployed who do not have a profession, Information Support citizens on the availability of vacancies and some other issues.

Relations between citizens wishing to find a job and employers regarding the employment of citizens for vacancies in the direction of the employment service. This subgroup also includes special forms of employment of certain categories of citizens for jobs quota for this. Yes, Art. 21 of the Federal Law of November 24, 1995 No. 181-FZ “On social protection persons with disabilities in the Russian Federation” establishes a quota of jobs for the employment of persons with disabilities, which determines the social significance of this sub-institution of law and, accordingly, the close connection between labor law and social security law.

2. Relations on vocational training, retraining and advanced training of employees directly from the given employer.

As the name implies, this type of legal relationship includes several subgroups according to the nature of training: training, retraining and advanced training. But like in all cases we are talking about the development of new knowledge (during the training of an employee), one should separately highlight the student relations that develop between the student (a person undergoing training, retraining or improving their qualifications) and the employer: about the learning process itself, which is carried out in working time; regarding the passing of qualification exams and the provision of work in the acquired profession or an increased level (qualification).

Features of student relations are reflected in Ch. 32 of the Labor Code of the Russian Federation, which determines that student contract with an employee of this organization is additional to the employment contract (Article 198 of the Labor Code of the Russian Federation).

3. Relations on social partnership, collective bargaining, conclusion of collective agreements and agreements.

A feature of this group of relations is that the system of social partnership covers all levels - from the local level of organization to the level of the Russian Federation. At all levels federal structure contractual regulation of relations developing in the sphere of labor can be carried out. At the local level, the result of such a response is a collective agreement, and at a higher level of legal regulation (the level of a region, a branch of the national economy, a constituent entity of the Russian Federation), the result is social partnership agreements. At the level of the Russian Federation, for the past twenty years, a General Agreement has been concluded every three years.

Social partnership is a relationship between employees and employers represented by their representatives, carried out, as a rule, with the participation of bodies state power or local self-government bodies, which are aimed at ensuring the coordination of the interests of employees and employers in the field of work.

4. Relations on the participation of employees and trade unions in the establishment of working conditions and the application of labor legislation in cases provided for by law.

The main forms of participation of employees in the management of the organization are indicated in Art. 53 of the Labor Code of the Russian Federation. It:

  • taking into account the opinion of the representative body of employees in cases provided for by the Labor Code of the Russian Federation, the collective agreement;
  • holding by the representative body of employees of consultations with the employer on the adoption of local regulations;
  • obtaining information from the employer on issues directly affecting the interests of employees;
  • discussion with the employer of questions about the work of the organization, making proposals for its improvement;
  • discussion by the representative body of employees of plans for the social and economic development of the organization;
  • participation in the development and adoption of collective agreements;
  • other forms determined by the Labor Code, other federal laws, founding documents organization, collective agreement, local regulations.

If we evaluate the nature of the participation of workers and trade unions in the establishment of certain working conditions, then all cases of their participation can be divided into two parts:

  • situations in which the participation of employees or their representatives is mandatory, and without it the decision of the employer cannot be considered lawful. For example: the creation of a commission on labor disputes (CTC), the conclusion of a collective agreement, etc.;
  • situations where the decision of the employer requires agreement with the opinion of the representative body of employees or the decision is made taking into account the wishes of the employees. For example: drawing up a vacation schedule, adopting local regulations, taking into account the opinion of the elected body of the primary trade union organization (Article 372 of the Labor Code of the Russian Federation), etc.

The second group is characterized by the fact that in case of disagreement with the opinion of employees or a representative body, the employer has the right to make his own decision.

5. Relationships in the organization of labor and labor management.

The Labor Code of the Russian Federation does not separate section or chapters on the organization and management of labor, but conceptually, a rule passes through the norms of labor legislation, based on the fact that the employer creates jobs at his own discretion, hires workers for these jobs to perform the labor function of interest to the employer, so the employer organizes labor workers at its discretion and manages labor also at its discretion. But at the same time, the employer must not violate labor laws and must not violate the rights of the employee established by law, the collective agreement, the labor contract. That is, if the legislation establishes a normal working week of 40 hours (Article 91 of the Labor Code of the Russian Federation), then the employer should not require longer working hours, except as provided by law and with appropriate payment. At the same time, if the law does not define the method of movement within the territory of the organization, then the employer may present an additional requirement to the employee for the ability to drive an electric vehicle or the ability to ride roller skates, if the employer determines such a method of movement as optimal for employees who need to quickly move around the territory, and the area is large. Naturally, the requirements of the employer must be reasonable and justified.

6. Relations on the liability of employers and employees in the labor sphere.

Liability is the obligation of one of the parties to the employment contract to compensate for the damage caused as a result of its guilty unlawful act to the other party to the employment contract in the manner and amount established by law. Well, since the employment contract has two parties, there are two subgroups depending on who is held liable:

  • relations on material liability of employees;
  • relations on the liability of the employer.

Liability is independent view legal liability that occurs regardless of bringing to other types of legal liability. An exception is civil liability in the event of damage caused by the employee to the property of the employer or other persons in the performance of the employee's duties assigned to him by the employment contract. In this case, the employee is held liable.

7. Relations on supervision and control (including trade union control) over compliance with labor legislation (including labor protection legislation) and other regulatory legal acts containing labor law norms.

It should be noted that stands out:

  • supervision and control over compliance with labor legislation, which is primarily carried out by such government bodies how the Federal Labor Inspectorate and the prosecutor's office, as well as control at the public level, are carried out by trade unions, which, in the event of an employer's refusal to eliminate violations, can apply to state supervisory authorities;
  • supervision and control over compliance with labor protection legislation, in which, in addition to the bodies of general supervision and control mentioned above in the first paragraph, special state bodies also participate in the areas of their jurisdiction: Rospotrebnadzor - for compliance sanitary regulations, Fire supervision - for fire safety, Energonadzor - for the rules for the use of electrical appliances, Atomnadzor - for the use of nuclear energy, Rostkhnadzor - for the rules of operation dangerous mechanisms, heat installations, carrying out mining, explosive and other works. All these and some other bodies control activities that require compliance with special work safety rules in order to preserve the life and health of workers, which is the essence of labor protection.

8. Permission relationship labor disputes.

- these are unresolved disagreements between participants in labor relations that have been submitted for consideration by a special jurisdictional body.

There are two subgroups:

  • resolution relationship individual disputes when the interests of an individual employee are affected;
  • relations for the resolution of collective labor disputes, when the interests of the entire labor collective or part of it are affected.

Relations on compulsory social insurance in cases stipulated by federal laws.

Compulsory social insurance of employees is based on the application of two main federal laws - this is the Federal Law "On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases" dated July 24, 1998 No. 125-FZ, as well as the Federal Law "On Compulsory Social Insurance at Work case of temporary disability and in connection with motherhood” dated December 29, 2006 No. 255-FZ.

  • social insurance against accidents at work and occupational diseases, which replaced the employer's liability for harm caused to the life and health of employees;
  • social insurance for temporary disability, which provides for the preservation of an employee’s earnings in a certain amount for the period of his illness and other cases (for example, the period of quarantine, prosthetics, spa treatment, caring for a sick family member). Herself health care based on compulsory health insurance, which is studied by social security law, which determines the connection between these branches of law;
  • social insurance in connection with maternity leave, which also determines the connection with social security law, studying social Security related to motherhood and childcare.

Thus, based on the above, it is already possible to determine general concept labor law of the Russian Federation.

Labor law is a collection legal regulations which, with the active participation of the parties to the employment contract, regulate labor and directly with them related relationships, establish the mutual rights and obligations of their participants and determine the measures of responsibility for violation.

The concept of any branch of the Russian system of law, including labor law, is revealed when determining, firstly, the subject of the branch of law, namely those social relations that are regulated by the norms of this branch of law, and, secondly, the specific method of legal regulation of these relations.

The subject matter of labor law is public relations on the use of the employee's labor in the production (economic, other) activities of the employer, referred to as labor relations, and other directly related relations.

Thus, the subject of labor law is formed by two groups of social relations: labor relations proper and relations directly related to them, or, as they say, derivatives of labor relations. These relations in the Labor Code of the Russian Federation are defined in Part 2 of Art. one.

All of them add up to a certain system of legal relations of labor law based on the unity of the subject of the industry. Labor relations are its central element, they determine the nature of other legal relations that, outside of labor relations, do not have independent significance and play a service role.

In Art. 15 of the Labor Code of the Russian Federation, the following concept of labor relations is fixed - these are relations based on an agreement between an employee and an employer on the personal performance by an employee of a labor function for a fee (work by position in accordance with the staffing table, profession, specialty, indicating qualifications; a specific type of work assigned to the employee) , subordination of the employee to the rules of internal labor regulations while providing the employer with working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract.

It should be emphasized that this definition, which was first enshrined in the labor legislation of Russia, establishes the obligatory nature of an agreement between an employee and an employer, the personal performance by an employee of a labor function for a fee under the guidance of an employer providing the necessary conditions labor and wages. Labor relations as a subject of labor law are characterized by the following features inherent in them: the employee personally performs his work (labor function). At the same time, he is included in the team (staff) with subordination established rules internal labor regulations. Since labor relations are of a reimbursable nature, the employer is obliged to pay for the work of the employee, and the employee has the right to pay for his work, in addition, the employer is obliged to ensure the appropriate conditions and safety of the worker.

Since persons who have concluded civil law contracts(author's, personal contract, commission, paid services, etc.), it is important to distinguish between the characteristic features of an employment relationship that distinguish it from related ones, including civil law relations, which are the subject of civil law regulation .

These signs include the following:

  • labor relations arise on the basis of a special agreement (labor contract) between the employee and the employer;
  • 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 (organization), using his abilities to work;
  • the obligation of the employee to perform the work stipulated by the employment contract in a certain specialty, qualification or position (labor function);
  • the performance by the employee of his labor function is carried out in the conditions of collective (cooperative) labor, which necessitates the subordination of the subjects of the labor relationship to the internal labor regulations established by the employer. This also means the subordination of the employee to the orders and instructions of the employer, his collective (board of directors, board, etc.) or sole executive body(head, director, etc.);
  • reimbursable nature of the labor relationship, which is manifested in the employer's response to the employee's performance of the labor function - in the systematic payment of the appropriate wages on time (twice a month, etc.);
  • the obligation of the employer using the labor of the employee to create healthy and safe working conditions for him, to comply with labor legislation, including labor protection legislation;
  • the right of each of the subjects of the labor relationship to terminate it without any sanctions, but in compliance with the procedure established by law. In this case, the employer, in the stipulated cases, is obliged not only to warn the employee about the dismissal, but also to pay severance pay and other compensation.

To characterize the subject of labor law, it is necessary to understand what is meant by independent and dependent (hired) labor. The specific property of man lies in the fact that he has the ability to work, which he freely and personally disposes of.

In other words, the joint work of people is impossible without observing the internal labor regulations established by the employer.

The third feature of the method is manifested in the nature (method) of establishing the rights and obligations of the subjects of an employment relationship. This is connected both with a combination of state and contractual regulation of labor relations, and with the participation of teams (employees) and their representative bodies, above all trade unions, in the establishment and application of working conditions through the development of social partnership.

State regulation of labor relations is expressed in the issuance by the state of normative legal acts that establish common principles and uniform norms that enshrine the rights and freedoms of a person in labor, necessary to protect the life and health of workers, meet their material and spiritual needs. The rules on labor protection, the minimum wage (minimum wage), the maximum working hours and other labor rights and guarantees of employees at a certain level, as well as the possibility of their increase as a result of contractual regulation, are established centrally. When agreements are reached on the basis of trilateral cooperation between representatives of employees, employers and the state, as well as through the conclusion of collective agreements by social partners (employees and employers) and, to a certain extent, labor contracts at the expense of employers’ own funds, additional labor and social benefits and additional guarantees for all employees or their individual categories.

At the same time, the terms of labor contracts should not worsen the position of employees in comparison with labor legislation, otherwise they are not subject to application (part 2 of article 9 of the Labor Code of the Russian Federation).

The combination of state and contractual regulation, including local regulations, covers general and special labor law norms, strengthens the unity and differentiation of the legal regulation of labor relations. Unity is manifested mainly in general norms ah labor law, extending to all workers throughout Russia. General norms are mandatory for all employers, regardless of their form of ownership and organizational and legal forms. Differentiation (difference) is reflected in special norms that take into account the characteristics and conditions of production, the territorial location of employers, the nature and specifics of the labor activity of various subjects of labor and categories of workers (the work of women, adolescents, disabled people) or working conditions (the work of pedagogical, medical workers, transport workers, professional athletes).

The differentiation of the legal regulation of labor is associated with its unity and is reflected in special norms by concretizing general norms or supplementing them, and in some cases withdrawing from them. general provisions. Special norms are contained in the Labor Code of the Russian Federation (section XII and other sections and articles). Differentiation is widely manifested in agreements, collective agreements and local regulations that take into account the conditions and characteristics of production, the nature of the work of certain categories and professional groups of workers, etc.

The last, fourth, feature of the method of labor law is manifested in the features that are inherent in the ways of protecting labor rights and the means of ensuring the obligations of participants (subjects) of an employment relationship.

A complete list of protections is contained in Art. 352 of the Labor Code of the Russian Federation. The peculiarity lies in the fact that along with state bodies authorized to consider labor disputes, it is possible to create a CCC.

If the employer violates the labor rights of employees or the collective interests of employees, individual or collective labor disputes arise. The method (order) of their resolution depends on the type and nature of these disputes.

Labor law delimits the ways (means) of ensuring the fulfillment of duties by the subjects of labor relations. In ensuring the fulfillment of obligations by employers, an important role is called upon to play state bodies of supervision and control, as well as trade union control over compliance with labor laws. For violations of labor legislation (including legislation on labor protection), labor law establishes the responsibility of the employer and officials: disciplinary and material. Administrative liability is also provided for employers - legal entities and individuals who are individual entrepreneurs, for managers, other persons representing the employer. If violations of labor legislation are recognized as a crime, then criminal liability arises (specific elements of crimes in the field of labor and labor protection are contained in the Criminal Code of the Russian Federation). To criminal liability employers - legal entities are not involved.

The performance of labor duties by the employee is ensured by such measures as encouragement and material incentives, and employees who violate labor duties (commit a disciplinary offense) are subject to disciplinary liability up to and including dismissal for committing a disciplinary offense and (or) financial liability in the prescribed manner.

Due to the development of socio-economic relations, the method of legal regulation of labor and other relations directly related to them is not unchanged and cannot be reduced to one, albeit the most characteristic, feature (property). Obviously, in more "homogeneous" branches of law, various methods of regulating social relations are used.

The method of labor law, which shows in what ways (legal methods, means) the regulation of labor and other directly related relations is carried out, on the one hand, is characterized by common features(features) inherent in the method. On the other hand, it reflects the specifics of the subject and ensures proper behavior

The subject of legal regulation in labor law is labor relations. They enter as employees of state and municipal enterprises, and participants in economic partnerships and societies based on personal labor.

Labor relations are relations regulated by the norms of labor law on the direct use of labor in teams associated with the creation of material and spiritual benefits, as well as other social relations derived from them.

Labor relations arise between subjects at the conclusion of an employment contract. Labor relations are also influenced by social relations caused by the use of labor provided for by an employment contract, as well as that which took place in the past or is expected in the future.

Labor relations have a complex structure. They include the actual labor relations that arise between the employee and the employer regarding the direct use of labor: legal relations in connection with hiring, remuneration, the establishment and application of working conditions, discipline and labor protection, relocation and dismissal of workers, access to pension, etc. According to Art. 15 of the Labor Code of the Russian Federation, labor relations are considered to be relations based on an agreement between 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 certain fee, the employee's subordination to the rules of internal labor regulations, while the employer ensures the working conditions provided for by law, collective agreement, agreements, labor contract.

Along with this, labor law regulates relations closely related to labor, arising outside the enterprise or in addition to the sphere of direct employment: 1) relations to ensure employment and employment; 2) organizational and managerial relations between the administration and the trade union regarding the participation of workers in the management of production; 3) relations on industrial training and advanced training of personnel - vocational training and retraining of employees; 4) procedural and labor relations - resolution of disputes in court; 5) control and supervisory relations related to compliance with labor legislation and labor protection rules; 6) relations related to reimbursement material damage, etc.

Employment relationships must be distinguished from civil law. Labor relations are relations on the direct use of labor in a certain specialty, qualification, position, which involve the voluntary entry of an employee into the labor collective and his obligation to obey the internal labor regulations. Object of regulation civil law is not living labor, joint activity, but embodied labor, as a rule, realized in goods and services.

Labor relations are of a reimbursable nature, since they assume that remuneration is paid for the labor expended.

They also have a strong-willed character. Outside the will and consciousness of the employee and the employer, the legal relationship does not arise, because outside the consciousness there is no purposeful labor activity.

The bearers of this will are the subjects.

9 Mukhaev R.T.

The subjects of labor relations are participants in labor relations, endowed with the appropriate legal status. The main subjects of labor relations are the employee and the employer.

An employee is a natural person who has entered into an employment relationship with an employer.

An employer is a natural or legal person (organization) that has entered into an employment relationship with an employee. In cases established by federal laws, another entity entitled to conclude employment contracts may act as an employer.

The rights and obligations of the employer in labor relations are carried out by:

the physical lipo that is the employer; ?

management bodies of a legal entity (organization) or persons authorized by them.

For the obligations of institutions financed in whole or in part by the owner (founder) arising from labor relations, the owner (founder) bears additional responsibility.

An individual acquires legal personality, as a rule, from the age of 16. The conclusion of an employment contract is allowed with persons who have reached the age of 16. In cases of receiving a basic general education or leaving a general education institution, an employment contract may be concluded by persons who have reached the age of 15 years. With the consent of one of the parents (guardian, trustee) and the body of guardianship and guardianship, an employment contract may be concluded with a 14-year-old student to perform light work in his free time from school that does not harm health and does not violate the learning process.

In cinematography organizations, theatres, theater and concert organizations, circuses, it is allowed to conclude an employment contract with persons under the age of 14 to participate in the creation and performance of works. But at the same time, the consent of one of the parents (guardian, trustee) and the guardianship and guardianship authority must be obtained (Article 63 of the Labor Code of the Russian Federation).

Necessary integral part legal personality individual is its tortiousness, i.e. sanity. The subject, having entered into labor relations, must be responsible for his actions or inaction.

In accordance with Art. 37 of the Constitution of the Russian Federation and art. 21 of the Labor Code of the Russian Federation, the legal personality of an employee includes a set of rights and obligations that he has. It should be noted the rights: 1) to provide work stipulated by an employment contract; 2) workplace, corresponding to the conditions provided for by the state standards of organization and labor safety and the collective: agreement; 3) timely payment of wages; 4) rest; 5) complete information about working conditions and requirements for its protection at the workplace; 6) vocational training and improvement of one's qualifications; 7) participation in the management of the organization; 8) conducting collective negotiations and concluding agreements through their representatives; 9) protection of their labor rights by all means not prohibited by law; 10) resolution of individual and collective labor disputes, including the right to strike; 11) compensation for harm caused to the employee; connection with the performance of his labor duties, and compensation moral damage; 12) compulsory social insurance. Along with rights, the worker is subject to responsibilities. Among them: conscientious performance of labor duties; compliance labor discipline and labor protection requirements; fulfillment of established labor standards; respect for the property of the employer and other employees.

Employers have the right to: 1) conclude, amend and terminate employment contracts with employees; 2) conduct collective negotiations and conclude collective agreements; 3) encourage employees for their work; 4) demand from them the performance of labor duties and respect for property; 5) bring employees to disciplinary and material liability; 6) adopt local regulations; 7) create associations of employers in order to represent and protect their interests and join them.

Obligations of employers: to provide work stipulated by an employment contract; ensure labor safety and conditions that meet the requirements of labor protection and hygiene; provide workers with equipment, tools, technical documentation and other means necessary for the performance of their labor duties; pay for the work of employees; conduct collective bargaining; conclude a collective agreement; provide representatives of employees with the information necessary for the conclusion of a collective agreement, agreement and control over their implementation; carry out compulsory social insurance of employees; compensate for the harm caused to employees in connection with the performance of their labor duties; compensate for moral damage.

Along with the employee and the employer, the subjects of labor law are: 1)

labor collective - a social community of employees of the organization, i.e. all employees working in the organization, including officials of the administration with whom the organization has concluded an employment contract; 2)

trade union - a voluntary public association of citizens connected by common industrial, professional interests by the nature of their activities, created in order to represent the interests and protect their social and labor rights.

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