home Business Labor relations. The concept and structure of an employment relationship A characteristic feature of an employment relationship is

Labor relations. The concept and structure of an employment relationship A characteristic feature of an employment relationship is

After studying this chapter, the student should:

know

general characteristics of the labor relationship, its personal, property and organizational elements;
the content of the employment relationship;
ways of establishing the rights and obligations of the parties to an employment relationship;
legal facts that are the grounds for the emergence of labor relations;

be able to

distinguish labor relations from related legal relations regarding the use of hired labor;
correctly determine the moment of occurrence of an employment relationship;

own

The theory of labor relations.

The concept and characteristics of the employment relationship

Labor law regulates social relations (connections between people established in the course of their joint activities), as a result of which they acquire a legal form, i.e. become a legal relationship. Any legal relations (including labor relations) are characterized by a set of necessary features: 1) only subjects of law can be participants in legal relations, i.e. persons with a certain legal personality; 2) legal relations arise on the basis of the legal norms providing for them; 3) the emergence of legal relations is based on certain legal facts (factual circumstances, without which the emergence of a legal relationship is impossible); 4) within the framework of legal relations, a specific connection of the parties (participants in legal relations) arises, characterized by their mutual rights and obligations; 5) legal relations arising on the basis of legal norms are protected and guaranteed by the state.

Labor relations are central in the system of legal relations in the sphere of labor regulated by labor law. It mediates the process of labor itself, the direct performance by the employee of the labor function, subject to subordination to the employer. It is the labor relationship that determines the legal connection and interdependence of all related legal relationships.

The definition of an employment relationship follows from Art. 15 of the Labor Code of the Russian Federation, which contains a legal definition of the concept of "labor relations". Under labor relationship understood as regulated labor law a relationship based on an agreement between the employee and the employer on the personal performance by the employee of a labor function for payment, the employee's subordination to the rules of the internal labor schedule while the employer ensures the working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, labor contracts.

For a full characterization of an employment relationship, it is important to single out: 1) the subjects of this type of legal relationship, between which a certain legal relationship is formed, due to their mutual rights and obligations; 2) the object of the legal relationship - that real good, the use or protection of which is directed by subjective rights and legal obligations, a legal fact (or actual composition), with the onset of which the emergence of an employment relationship is associated, and, finally, 3) the regulatory framework itself, which is base element to transform a social relationship into a legal relationship.

Only the employee and the employer, endowed with labor legal personality, act as subjects of an employment legal relationship. Their description is given in Chap. 3 textbooks. The object of the labor relationship is hired (non-independent) labor, characterized by dependence on the employer.

Let us dwell on the characteristics of the legal relationship between the employee and the employer, which makes it possible to distinguish labor relations from other legal relations, also based on the use of a person's labor abilities. Most often, problems arise when distinguishing between labor and civil legal relations, which have independent legal regulation in the relevant branches of law - labor and civil. Unscrupulous entrepreneurs are trying to disguise labor relations by entering into civil legal contracts contracts, paid services, agency contracts, etc. However, Part 4 of Art. 11 of the Labor Code of the Russian Federation establishes the following guarantee: if the court establishes that the contract of a civil law nature actually regulates labor relations between the employee and the employer, the provisions apply to such relations labor law and other acts containing labor law norms.

An analysis of the definition of the concept of an employment relationship (Article 15 of the Labor Code of the Russian Federation) allows us to identify several essential features that characterize the employment relationship as a legal category.

The founder of labor law in Russia, L. S. Tal, and after him other scientists distinguish three areas of master's power: the right of direction (or dispositive power), i.e. the right to direct the work with their instructions and instructions; disciplinary authority, i.e. the right to apply coercive measures to maintain proper order, including imposing penalties for violation of labor discipline; normative power, i.e. the right, within certain limits, to establish the order to which those working in the enterprise must obey.

6. An employment relationship is always of an exclusively reimbursable nature. According to Art. 56 of the Labor Code of the Russian Federation, the obligation of the employer under an employment contract is the timely and full payment of wages to the employee. This rule is closely intertwined with the fundamental principle of labor law - ensuring the right of each employee to the timely and full payment of fair wages, which ensures a worthy existence for him and his family (Article 2 of the Labor Code of the Russian Federation).
7. The employment relationship predetermines another general duty of the employer - to provide the employee with appropriate working conditions that meet the requirements of the safety and health of the employee, as well as international labor standards. And this component of the labor relationship obligation follows from the principle enshrined in Art. 2 of the Labor Code of the Russian Federation, - ensuring the right of each employee to fair working conditions, including working conditions that meet the requirements of safety and hygiene, the right to rest, including the limitation of working hours, the provision of daily rest, days off and non-working public holidays, paid annual leave.
8. The content of the labor relationship is determined not only with the help of regulatory sources, including the Labor Code of the Russian Federation and other regulatory legal acts containing labor law norms, local regulatory acts of the organization, but also in a contractual manner - a collective agreement, agreements, labor contract. The totality of these legal acts establishes the mutual rights and obligations of the employee and the employer in labor relations. Since the employment relationship is complex, its content is characterized by a set of rights and obligations that correspond to each other (for more details, see § 4.2).

In the theory of labor law, the concept of the triune essence of the labor legal relationship has been developed, according to which the labor legal relationship consists of three fundamental equivalent elements - property, organizational (or managerial) and personal non-property.

property element provides regulation of the paid function of hired labor, and its expression is associated not only with remuneration for work. There are many articles in the Labor Code of the Russian Federation that guarantee the employee the preservation of wages during those periods when he is legally released from work. Compensation payments, established by law (for example, when using the personal property of an employee in the course of labor activity), also indicate the paid nature of labor relations.

organizational element labor relationship finds expression, firstly, in the certainty of the labor function. An employee may not be entrusted with any work, but only that which is included in the circle of his functional duties due to their position or profession. Secondly, the subordination of the employee to the internal labor regulations of the employer testifies to the organizational aspect of labor relations. The element of power-subordination is due to the very nature of joint human labor, which dictates the need to empower the employer (his representatives) with managerial powers. Recently, the managerial component of the labor relationship has been modified, some new forms of labor organization (for example, using remote jobs, remote work - the so-called "teleworkers" or "Internet employees", "online employees") involve a complete or partial refusal from interfering in the execution of tasks and instructions, i.e. weakening the employer's decision-making power.

Non-property (personal) element employment relationship follows from such a sign of an employment relationship as the personal performance of a labor function by an employee. The non-property element mediates the personal relationships of the parties to the employment contract and ensures the protection of specific intangible benefits inherent in the sphere of wage labor. Personal intangible benefits include the right to information, the right to protection of honor and dignity during employment, the right to protection of personal data, etc.

So, the labor relationship is a single, indivisible, lasting legal relationship, the content of which is the rights and obligations of its subjects, implemented throughout the entire period of the employment contract.

For details see: Tal L. S. Labor contract. civil research. Part 2. Yaroslavl, 1918. S. 71; Gshshbure L. Ya. Socialist labor relations. M., 1977. S. 99-103; Kiselev I. Ya. Comparative and international labor law. M., 1999. S. 102.
See details: Ivanov S. A., Livshits R. Z., Orlovsky Yu. P. Soviet labor law: questions of theory. M., 1978.
For the first time, the justification of the concept of a single lasting labor relationship was made by N. G. Aleksandrov: Aleksandrov N. G. Decree. op.

An employment relationship is a legal relationship based on an agreement between an employee and an employer, according to which

to which one party (employee) undertakes to personally perform a certain labor function (work in a certain specialty, qualification or position), obeying the internal labor regulations established by the employer, and the other party (employer) undertakes to provide the employee with the work stipulated by the employment contract, to ensure appropriate working conditions for him as well as timely payment of the work of the employee.

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

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

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

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

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

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

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

election (elections) to office; -

election by competition to fill the relevant position; -

appointment to a position or approval in a position; -

Job placement by legally authorized bodies on account of the established quota (such quotas may be established for the employment of persons with disabilities, as well as underage orphans and children left without parental care); -

court decision on the conclusion of an employment contract.

Definition 1

At its core, employment relationship is a type of social relationship based on the performance of a specific job. It is regulated by labor law within the framework of an agreement concluded between the employee and the employer. In this case, the first must obey the rules internal regulations operating in an enterprise or organization. And the second is to ensure the working conditions provided for by labor legislation, collective and labor contracts.

Signs of an employment relationship

There are the following main features of labor relations:

the personal nature of the rights and obligations of the employee;
predetermined labor function;
observance of labor discipline;
reimbursable nature of the labor relationship;
each of the subjects has the right to terminate the employment relationship.

Let's consider the above features in more detail.

The employee is obliged to participate in the production or other activities of the employer solely by his own labor. . There is no such restriction in civil law, in which the contractor has the right to involve other persons in the performance of work.
The content of labor is predetermined by the specialty, qualification or position of the worker. In an employment relationship, we are not talking about the fulfillment of a separate individual task by a specific date, which is typical for civil law obligations related to labor activity.
Since the performance of the labor function is carried out in a team, then the employee is obliged to obey the requirements of labor discipline and internal regulations installed at the enterprise or in the organization. In other words, the labor relationship combines both coordination and subordination elements. The principle of freedom of labor is combined with subordination to higher authorities.
Compensatory nature of the labor relationship manifested in the payment of wages, which is carried out by the employer, usually in cash. The peculiarity of the employment relationship is that payment is made for the work carried out by the employee systematically in the established working time.
An employment relationship is complex because each of its parties has corresponding rights and obligations. Both the employee and the employer can terminate their legal relationship without any sanctions, if the provisions of Chapter 13 of the Labor Code of the Russian Federation were not violated.

Picture 1.

Types of labor relations

All types of labor relations can be divided into three groups:

basic;
related and organizational and managerial;
protective.

The main labor relations are the relations between the employee and the employer.

Accompanying and organizational and managerial are relations related to issues of employment, organization and management of labor, as well as the activities of trade unions to protect the rights of workers and social partnership legal relations. This group includes preparation, professional retraining and staff development.

Protective legal relations are connected with the control and supervision of compliance with labor laws, the liability of employees and employers, the resolution of labor disputes and issues social insurance.

In modern Russia, there are the following main types of labor relations:

promotion of employment and employment;
relationship between employee and employer;
organization and management of labor;
professional training, retraining and advanced training of personnel;
relations between trade unions and employers to protect the rights of workers;
social partnership relations;
control and supervision of compliance with labor legislation;
material liability of the parties to the employment contract;
permission labor disputes;
social insurance.

All of the above types of legal relations are determined by the subject of labor legislation. They differ from each other in subjects, content, as well as the grounds for the emergence and termination of relations.

The object of the labor relationship

Performance certain work, the nature of which is determined by the specialty, qualification or position of the employee, is the object of an employment relationship.

Remark 1

Thus, the various benefits created in the process of work are practically inseparable from the production activities. For example, the beneficial effect of a lesson taught by a teacher is difficult to determine in actual terms. Therefore, the material content of the labor relationship is the actual behavior of its participants, regulated by a combination of their rights and obligations.

Origin, change and termination of an employment relationship

The basis for the emergence of most labor relations is the conclusion between the employee and the employer of an employment contract. Legal significance of this document lies in the fact that it represents the basic basis for the further development of labor law.

Remark 2

The content of the employment contract includes all the conditions that determine the rights and obligations of its parties. A variation of this document is labor contract, which can be concluded by the employer with representatives of creative, scientific or sports professions. A change in the employment relationship is expressed in the transfer of an employee to another job at the initiative of the administration of an enterprise or organization. Such a transfer is possible only with the consent of the employee or in case of production necessity, as well as in connection with downtime for one reason or another.

An employee can also apply to the employer with a request to transfer him to another job, for example, for health reasons or in case of temporary incapacity for work.

Termination of an employment relationship is possible both by mutual agreement of the parties, and at the initiative of the employee or employer. Labor legislation gives an employee the right to terminate an employment contract that does not suit him at any time. The citizen is obliged to notify the administration of the enterprise or organization of his intention two weeks before the dismissal, having done this in writing. However, the employer has the right to terminate the employment contract with the employee before the two-week period established by law.

Labor relations are governed by labor law and real life act (exist) in the form of labor relations. Along with them, other legal relations arise in the field of employment, which are considered as derivative (or referred to by the legislator as other directly related to labor) relations.

It is well known that a social relation takes the form of a legal relation if there are, first of all, two conditions. Firstly, it is required that this social relation be expressed in acts of volitional behavior of people, and secondly, it is necessary that it be regulated by the rules of law.

Accordingly, labor and other legal relations directly related to them are the result of the impact of labor law norms on the relations of subjects in the field of employment. The norms of labor law are capable of generating a legal relationship between subjects, i.e., the legal relationship itself, if the subjects perform a legally significant volitional act - a legal act that is the basis for the emergence of a legal relationship. The basis for the emergence of an employment relationship is such a legal act as an employment contract, concluded between the employee and the employer.

Between other subjects (employees, their representatives, primarily trade unions), and the employer acting on his behalf as a leader, employers (their representative - an association of employers of the appropriate level), according to the norms of labor law and on the basis of other legal acts, other legal relations directly related to labor arise. Together with labor relations, all of these relations, regulated by the norms of labor law, add up to a certain system of legal relations of labor law.

The labor relationship is the central and main element of the system, other legal relationships are closely related to it and act as elements of this system. Labor relations determine the nature of other legal relations associated with them and playing an official role in relation to them.

Under derivatives (from labor) or so-called other closely related to them, it is customary to understand such legal relations, the presence of which implies the existence of present, future or past labor relations, without which the existence of these other derivative relations directly related to labor would be meaningless or generally impossible. So, in the absence of labor legal relations, representative bodies of workers are not created - trade unions, collective agreements, social partnership agreements are not concluded, individual labor disputes do not arise, there is no place for collective labor disputes, strikes, etc.

The following legal relations are classified as closely related or derivative from labor relations by:

labor organization and labor management;
training and additional professional education of employees directly from this employer;
social partnership, collective bargaining, conclusion of collective agreements and agreements;
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;
state control (supervision), trade union control over compliance with labor legislation (including labor protection legislation) and other regulatory legal acts containing labor law norms;
resolution of labor disputes;
compulsory social insurance in cases stipulated by federal laws.

Thus, in this system along with labor relations, there are other relations directly related to them, which are the subject of the labor law branch, which have now found their consolidation in the Labor Code of the Russian Federation (part 2 of article 1)33.

The system of legal relations of labor law is characterized by internal unity and consistency, which reflect the internal unity of labor law and the integrity of its components similar public relations, requiring a specific method of their legal regulation . The features of the labor law method are explained, among other things, by the variety of regulated social relations, their close interweaving and certain mobility, which is especially characteristic of the modern period of economic reforms and the development of the labor market.

Thus, the formation of social partnership legal relations for conducting collective bargaining and concluding a collective agreement with the dynamic growth of a market economy requires more flexible methods of regulation, the development of a collective agreement method, the increasing importance of agreements, a collective agreement, employment contracts. Further development receive relatively new for labor law legal relations of tripartite cooperation of the relevant entities concluding agreements of various levels (territorial, sectoral, regional, interregional, general) and other legal relations of the system under consideration.

A certain focus on social relations that form the specified system of legal relations is given under the influence of labor legislation or other acts containing labor law norms, the general goals of which, in accordance with the Constitution of the Russian Federation and Art. 1 of the Labor Code of the Russian Federation are the consolidation of guarantees of labor rights of citizens, the creation of favorable working conditions and the protection of the rights and interests of workers and employers. The achievement of these goals defined in the Labor Code of the Russian Federation is the solution of tasks that have also received their consolidation in the Labor Code of the Russian Federation (part 2 of article 1), one of which is the task of legal regulation of labor relations and other directly related relations. Therefore, this system is revealed as a set of legal relations united by common goals and objectives, where each legal relationship is an element of the system and arises in connection with the collective (joint) work of employees at employers, and the labor legal relationship occupies the main place in the system.

Thus, the system of legal relations of labor law can be considered as a set of similar social legal relations, united by common goals and objectives, primarily labor relations that occupy the main place in the system, and derivatives of other labor relations that arise in connection with the labor of employees for employers and are regulated by the norms of labor legislation. (based on the labor law method).

The nature of the system of legal relations of labor law depends on all the elements included in it, but labor relations play a decisive role, acting as a system-forming factor. Other legal relations related to labor are designed to contribute to their development and strengthening. In some cases, the very existence of labor relations is impossible without their "indispensable companions": legal relations on the participation of employees and their representatives in the management of the organization; legal relations on state control (supervision) over compliance with labor legislation (including labor protection legislation); legal relations related to the training and additional professional education of employees with this employer; legal relations on social partnership, collective bargaining, conclusion of collective agreements and agreements.

However, the emergence of legal relations related to labor is not always mandatory. So, citizens get a job on their own, having concluded an employment contract with an employer, most often without resorting to an employment service; not necessarily individual or collective labor disputes and strikes. Therefore, legal relations for the consideration of these disputes, as well as legal relations related to employment, are usually referred to as “optional satellites” (as opposed to these mandatory satellites, which certainly arise and coexist with labor relations).

Along with the subdivision of legal relations directly related to labor relations, another classification is used for legal relations - “mandatory companions” or “optional companions”. These legal relations are usually subdivided according to the time of their occurrence, development and termination in relation to labor relations. In this case, they are divided into previous, concomitant and consequential legal relations.

Previous legal relations arise and develop before labor relations, and terminate with the emergence of labor relations. The previous ones include legal relations related to employment, as well as the preparation and additional n of the employer.

Associated legal relations arise and coexist with labor relations, ensuring their implementation. They coincide with the legal relations referred to the indicated "mandatory companions". These include the following relationships:

labor organization and labor management;
employment with this employer;
social partnership, collective bargaining, conclusion of collective agreements and agreements;
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;
state control (supervision), trade union control over compliance with labor legislation (including labor protection legislation) and other regulatory legal acts containing labor law norms.

The accompanying ones also include the legal relationship for the training and additional professional education of employees with a given employer, if they are carried out after the start of work.

Legal relations arising from labor disputes arise when considering individual or collective labor disputes.

With the determining role of labor relations, all legal relations as elements unified system have common features. At the same time, they differ in terms of subjects and content, grounds for occurrence (change and termination), the nature of rights and obligations. This difference is most clearly manifested when considering each of these legal relations of the system separately.

Employment relationship and its features

In contrast to these social relations, the labor relation, regulated by the norms of labor law, is a legal relation on the use of the labor of a citizen (individual) as an employee. The latter is opposed by the employer, which can be both a legal entity (organization) and an individual (individual entrepreneur) entering into labor relations with employees, or a citizen (individual) entering into an employment relationship with an employee and using the worker's labor. Thus, the subjects of the labor relationship are the employee and the employer - this is the first feature of the labor relationship.

The second feature of the labor relationship is the complex composition of the rights and obligations of its subjects, which is manifested in the fact that each of the subjects acts in relation to the other both as an obligated and as an authorized person; in addition, each of them has not one, but several duties to the other. Along with this, for some obligations of the employer, he is liable himself, for others - the responsibility may come from the head acting on behalf of the employer as a management body, or they may bear simultaneously, but different liability (for example, if the employer fails to pay wages, financial liability, and the head (director) may be subject to disciplinary or administrative or criminal liability).

Based on the fact that the obligations of one subject of the legal relationship correspond with the rights of another and vice versa, it is obvious that a complex of mutual rights and obligations is inherent in the labor relationship. This feature is connected with the peculiarity of the labor relationship: it covers the whole complex of mutual rights and obligations of subjects in an inseparable unity, i.e., despite the complex composition of rights and obligations, the labor relationship is a single legal relationship.

In the science of labor law, there are positions of scientists who defend the independence of legal relations on the material liability of the employee and the employer associated with labor relations. This position is reflected in Art. 1 of the Labor Code of the Russian Federation, which indicates the liability relationship as an independent one. Attempts to destroy the integrity of the labor relationship, to snatch individual combinations of rights and obligations from the inseparable complex do not indicate the emergence of new types of legal relations (disciplinary or material liability), but lead to the splitting of a single complex labor relationship.

The fourth feature of the employment relationship is its continuing nature. In an employment relationship, the rights and obligations of subjects are implemented not by one-time actions, but systematically or periodically by performing those actions that are necessary and at a set time (working day, shift, week, month, etc.). The performance of a labor function by an employee, subject to the rules of internal labor regulations, after a certain time (two weeks) causes response actions of another subject. There arises the right of the employee to receive payment for his work and the obligation of the employer to pay the corresponding wages. This does not mean the constant emergence of new types of legal relations, but indicates the continuing nature of a single labor legal relationship and the constant implementation of the rights and obligations of its subjects.

Only for educational purposes, its elementary connections are distinguished from the labor legal relationship, i.e., corresponding rights and obligations, for example, the right of an employee to provide him with work (paragraph 3 of part 1 of article 21 of the Labor Code of the Russian Federation) and the obligation of the employer to provide the employee with work due to labor agreement (paragraph 2, part 2, article 22 of the Labor Code of the Russian Federation). But we should not forget about all the above features, including the complex nature of the rights and obligations of a single and lasting employment relationship.

This legal relationship is not some kind of abstraction; in real life, labor relations have a very specific embodiment. Each citizen (individual) who has concluded an employment contract has an individual labor relationship with a specific employer. However, it must be borne in mind that persons who have entered into civil law contracts (contracts, assignments, paid services, author's contract, etc.) can also be engaged in labor activity. For the first time in the Labor Code of the Russian Federation (Article 15), a definition of an employment relationship is given, which makes it possible to distinguish it from related legal relations arising from these civil law contracts. The definition of an employment relationship establishes the obligatory nature of an agreement between the employee and the employer on the personal performance by the employee of the labor function for a fee, subject to the rules of the internal labor regulations (under the guidance of the employer) and the obligation of the employer to ensure the necessary conditions and employee wages.

From this definition follow the characteristic features of the labor relationship, which make it possible to distinguish it from related, including civil law relations.

The personal nature of the rights and obligations of an employee who is obliged personally only by his labor to participate in the production or other activities of the employer, using his abilities for work (labor), which follows from the very nature of living labor as a personal volitional activity of an individual (employee). The employee does not have the right to represent another employee in his place or to entrust his work to another, just as the employer does not have the right to replace the employee with another, except in cases established by law (for example, during the employee's absence due to illness, etc.). There are no such restrictions in civil law, where the contractor has the right to involve other persons in the performance of work.

The employee is obliged to perform a certain labor function stipulated by the employment contract, and not a separate individually-specific task (or several) for a specific remuneration by a specific date. The latter is typical for civil law obligations associated with labor activity, the purpose of which is to obtain a specific result (product) of labor, to perform a specific assignment or service to a certain period, i.e. the performance of work is only a way of fulfilling an obligation.

The performance of the labor function is carried out in the conditions of general (cooperative) labor, which necessitates the subordination of the subjects of the labor legal relationship to the rules of the internal labor regulations, which are adopted by the employer in the manner prescribed by law. The performance of the labor function and the related subordination to the internal labor regulations means the inclusion of citizens in the team of workers (staff) of this employer.

All three of these features constitute the characteristic features of the work of a citizen as an employee (as opposed to the subject of a civil law relationship). At the same time, a single and complex labor relationship combines both coordination and subordination ties, where freedom of labor is combined with subordination to the internal labor regulations; this is impossible in civil law, based on the fundamental principles of civil law.

The reimbursable nature of the employment relationship is manifested in the response actions of the employer, who is obliged to pay wages to the employee for the performance of work, usually in cash. The peculiarity of the labor 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.

A characteristic feature of the labor relationship is also the right of each of the subjects to terminate this relationship without any sanctions on the grounds established in the Labor Code of the Russian Federation and in compliance with the procedure specified by law.

At the same time, the employer has the obligation to notify the employee of the employee's dismissal on his initiative in established cases and to pay severance pay in the manner prescribed by labor legislation.

An employee is a mandatory subject of an employment relationship. Without it, this legal relationship simply cannot exist.

The employer is obliged to conduct collective negotiations, conclude a collective agreement based on their results in the manner prescribed by the Labor Code, and provide employee representatives with complete and reliable information necessary for concluding a collective agreement, agreement and monitoring their implementation. In addition, the employer is obligated to both promptly comply with the instructions of state supervisory and control bodies, pay fines imposed for violations of laws, other regulatory legal acts containing labor law norms, and consider the submissions of the relevant trade union bodies, other representatives elected by employees about identified violations. laws, other acts, take measures to eliminate them and report on the measures taken to the indicated bodies and representatives, as well as create conditions that ensure the participation of employees in the management of the organization in the forms provided for by the Labor Code, other federal laws and the collective agreement.

The employer is also entrusted with the provision of the everyday needs of employees, the implementation of compulsory social insurance, compensation for harm caused to the employee in connection with the performance of his labor duties.

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 plays an important functional role in the mechanism of legal regulation of labor relations, their occurrence, etc. Like any other contract, it has its own content - these are the conditions on which the parties have 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 also predetermines 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 limit the rights or reduce the level of guarantees for employees established by labor legislation (part 2 of article 9 of the Labor Code).

The agreed conditions, as it were, determine the scope of the content of the emerging labor relationship. Nevertheless, an employment contract cannot determine all of its content, all elements. An individual (citizen) on the one hand and an organization (legal entity) or individual entrepreneur or the employer - an individual on the other hand, when concluding an employment contract and the emergence of an employment relationship, act as private individuals. It is as individuals that they act on the basis of freedom of labor, choice of each other, freedom to conclude an employment contract and freedom to determine its conditions (content). However, individuals cannot fully realize through legal form of an employment contract is a public-legal element of an employment relationship. This public law element consists in establishing a regulatory standard for labor rights and guarantees for an employee, the deterioration of which in an employment contract leads to the fact that conditions that worsen the position of the employee are not subject to application (Article 9 of the Labor Code).

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 of a certain level of labor rights and guarantees, the parties are not entitled to reduce this level by concluding an employment contract, they are not entitled to exclude any labor rights or replace them with others. This is one of the features of labor law, which indicates its social orientation and allows us to characterize labor law in the system of Russian law as performing a protective (social) function with a certain preponderance compared to its other function - economic (production).

It is necessary to pay attention to the fact that the very existence of an employment relationship is based on the disciplinary and directive power of the employer.

The subordination of the employee is imperatively "built into" the content of the labor relationship, it does not allow the specified individuals to exclude it or replace it with another condition when concluding an employment contract. The obligation of an employee to perform a labor function with subordination to the internal labor regulations is established by the Labor Code (Articles 15, 56, etc.).

This also shows the differences between an employment contract and civil law contracts, the parties to which are autonomous, equal and free to such an extent that they can choose not only a certain, but also another type of contract that suits them more, meets their interests, or can resort to mixed civil law contract. At the same time, the provisions of the law are not violated, and its essential conditions are fixed in the contract, as required by Art. 432 of the Civil Code of the Russian Federation.

This situation is not possible when concluding an employment contract. In labor law, the employment contract occupies a central place. Its importance grows immeasurably in modern conditions formation and development of the labor market ( work force), it is not superseded by any other treaty.

An employment contract is the organizational and legal form that most adequately meets the needs of the labor market and the private interests of the employee and employer.

Grounds for the emergence, change and termination of labor relations

For the emergence, change and termination of labor relations, an appropriate legal fact must occur, according to the rules of law.

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 in labor law. These facts in labor law are lawful actions (expressions of the will of the employee and the employer) performed in order to establish labor relations. Since the facts are precisely the legitimate wills of people, they are called legal acts.

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. In this capacity, the employment contract plays the most important functional role in the mechanism of legal regulation of labor relations, it acts as the basis for their emergence, change or termination.

As a general rule, an employment contract is the basis for the emergence of most labor relations. However, in some cases, legal norms associate the emergence of labor relations not with one legal act, which is an employment contract, but with several. Taken together, these legal acts constitute the so-called complex legal composition, which serves as the basis for the emergence of labor relations. The existence of these compositions is due to the specifics of the work of certain categories of workers, the special complexity of the work they perform, increased responsibility for their performance, etc.

The extraordinary nature of such labor activity imposes a rather high level of requirements on persons (citizens) to fill the relevant positions and necessitates the establishment of a special procedure for the selection of highly qualified personnel. In some cases, a procedure is established related to the control and verification mechanism for choosing one of the applicants for a position (competition), in others, a candidate for a position is nominated by one or another group of people, and then, subject to the developed procedure, his election to a position is carried out or a person is appointed ( approved) for a position by a higher management body (act of appointment or approval).

Labor legislation also provides for the direction to work at the expense of the established quota (disabled people), this may be a court decision on the conclusion of an employment contract and, finally, the recognition of relations related to the use of personal labor and arising on the basis of a civil law contract, labor relations. All of these acts are enshrined in Art. 16 of the Labor Code and, accordingly, are disclosed in Art. 17, 18 and 19 of the Labor Code. They can give rise to labor relations only in conjunction with an employment contract concluded as a result of election to a position, competition, appointment (approval) to a position, referral to work on account of an established quota, court decision, recognition of relations as labor relations, and the actual admission to work with the knowledge or on behalf of the employer or his authorized representative, indicating the existence of an employment contract that is not properly executed in writing.

Each of these acts in conjunction with the employment contract is a complex legal structure, which is the basis for the emergence of labor relations.

Regardless of the differences and the number of legal acts included in complex legal structures, they necessarily have an employment contract, which takes its specific place. So, in case of competitive selection at a university, an employment contract closes all other legal acts this composition(Article 332 of the Labor Code). The head (rector, dean on behalf of the university (faculty)) concludes an employment contract with a person elected by competition by the academic council at the university, provided that an appropriate management act (order) was previously issued to approve the decision of the council on the competitive election of a person to a position.

In this case, the specified structure includes legal acts inherent in different branches of law and committed in the following sequence:

competition, completed by the decision of the relevant body (academic council), i.e. the act of election;
order of the head to approve the decision of the academic council (public collegiate body), which has been given legal force, i.e. an act of management;
the conclusion with a person elected by competition of an employment contract that determines the employee's labor function, the date of commencement of work, the amount of remuneration, etc., i.e. a bilateral legal act - an employment contract.

An employment order issued after the conclusion of an employment contract is not a legal act, but performs a purely formal function.

Legal relations on social partnership, collective bargaining, conclusion of collective agreements and agreements are aimed at establishing working conditions and wages for workers, the protection and safety of their work, employment, protecting the collective interests of workers, etc., i.e., aimed at organizing and managing labor employees, adoption of acts on the establishment and application of working conditions at all levels of social partnership, as well as on the formation and implementation of state policy in the field of labor. The parties to these legal relations are employees and employers acting through their representatives authorized in the manner prescribed by law. They act as participants in these legal relations on behalf of and in the interests of the represented party.

So, when conducting collective negotiations, concluding a collective agreement, the interests of the employer are represented by the head of the organization, the employer - an individual entrepreneur - personally. During collective negotiations and adoption of agreements, the interests of employers are represented by their associations at the appropriate level of social partnership. Representatives of employees are primary trade union organizations that unite more than half of the employees. If the primary trade union organization does not unite more than half of the workers or the workers are not united in a trade union, then in this case general meeting(conference) employees can entrust the representation of their interests to the specified trade union organization or other representative body, which they elect at this meeting and authorize to represent their interests.

Consequently, according to labor legislation, representatives of workers are primary trade union organizations, and the elected body of this primary trade union organization acts as a representative body of workers, except for the indicated cases, when there may be another representative body.

Outside of employers, the interests of employees are always represented by trade unions, their bodies and associations. Thus, all-Russian trade unions of the relevant industry and their associations can participate in the conclusion of sectoral agreements at the federal level.

Legal relations on social partnership, collective bargaining, conclusion of collective agreements and agreements arise, as a rule, when the elected body of the primary trade union organization applies, as a rule, trade union committee to the employer on collective bargaining and the conclusion of a collective agreement. However, collective bargaining, the conclusion of a collective agreement or agreement can be initiated equally by representatives of employees and representatives of employers. In the course of collective bargaining, in case of failure to reach agreement on certain provisions of the draft collective agreement, the parties must sign the agreement on agreed terms within three months from the date of the start of collective negotiations.

At the same time, a protocol of disagreements is drawn up. The settlement of the disagreements that have arisen is carried out either through further negotiations, or in the manner of resolving collective labor disputes. Collective negotiations preceding the conclusion of agreements are carried out in the same manner as when concluding a collective agreement.

The tripartite agreements currently being concluded in the Russian Federation also involve state executive authorities of the appropriate level and local governments. So, at the federal level, the General Agreement is adopted, the participant of which is the representative of the Government of the Russian Federation, and at the regional level - the representative of the Government of the subject of the Russian Federation, etc.

Legal relations on social partnership, collective bargaining, conclusion of collective agreements and agreements are related to labor relations.

Legal relations on the participation of workers and trade unions in the establishment of working conditions and the application of labor legislation in cases provided for by law differ from those considered. They are formed between workers, who are represented only by trade unions, and employers (their representatives). These legal relations are aimed at establishing working conditions and applying labor legislation, that is, they are also associated with the organization of labor and labor management. But these legal relations differ from others in their own manifestation (independent existence).

The Labor Code (Article 371) provides that the employer makes decisions that may relate to the establishment of working conditions and the application of labor legislation, taking into account the opinion of the trade union body. These cases, when the employer makes decisions taking into account the opinion of the trade union body, are enshrined in Art. 73, 82, 99, 105, 113, 123,135 and other articles of the Labor Code.

Along with this, Art. 372 of the Labor Code of the Russian Federation, it is established that the employer, in cases provided for by the Labor Code, other federal laws and other regulatory acts of the Russian Federation, a collective agreement, agreements, before adopting local regulations containing labor law norms, takes into account the opinion of the elected body of the primary trade union organization. This article also defines the procedure for taking into account the opinion of this body representing the interests of employees.

The Labor Code provides that, along with the cases of taking into account the opinion of the elected trade union body when adopting local regulations, other laws, other acts, the collective agreement may also establish the consideration of the opinion of the representative (trade union) body when adopting local regulations, and also, these acts can be adopted in agreement with the representative body, if this procedure is provided for in the collective agreement, agreement. In addition, it has been established that local regulations containing labor law norms adopted without taking into account the opinion of a representative (trade union) body are not subject to application (part 4 of article 8 of the Labor Code).

In addition, the Labor Code provides for the participation of the elected body of the primary trade union organization in the consideration of issues related to the termination of the employment contract at the initiative of the employer. Dismissal of employees who are members of a trade union, in accordance with paragraph 2, 3 or 5 of Art. 81 of the Labor Code, is carried out taking into account the motivated opinion of the specified elected trade union body. The procedure for taking into account the reasoned opinion of the elected body of the primary trade union organization when terminating an employment contract at the initiative of the employer is determined by Art. 373 of the Labor Code of the Russian Federation.

The Labor Code (Article 82) also provides that the composition attestation commission in without fail a representative of the elected body of the relevant primary trade union organization is included, since the results of the attestation in the decision of the said commission may serve as a basis for the dismissal of the employee under paragraph 3 of part 1 of Art. 81 TK.

The considered legal relations are always related to labor relations. For an elected body of a primary trade union organization, for example, a trade union committee, they arise from the moment of its election and continue until the termination of its powers. It should be borne in mind that the rights of trade unions are defined by the Labor Code, Federal Law of January 12, 1996 No. 10-FZ “On trade unions, their rights and guarantees of activities”.

Legal relations for the training and additional professional education of employees directly from a given employer usually accompany labor relations, but they may also precede them. Issues of training (vocational education and vocational training) and additional vocational education have found their consolidation in sec. IX TC, in Ch. 31 and 32. Art. 198 of the Labor Code establishes two types of student contracts, concluded by an employer - a legal entity (organization): firstly, with an employee of this organization to receive education on the job or on the job, and secondly, with a person job seekers. For students, according to Art. 205 of the Labor Code of the Russian Federation, regardless of the type of student agreement concluded, labor legislation applies, including labor protection legislation. All students enjoy labor rights and bear obligations, including compliance with the rules of internal labor regulations. student contract terminates at the end of the training period or on the grounds provided for by this agreement (Article 208 of the Labor Code).

A student agreement with an employee of this organization is additional to the employment contract (part 2 of article 198 of the Labor Code).

First of all, it is necessary to highlight the obligations of the employer to provide the employee with the opportunity to study in a certain specialty, qualifications and the obligation of the employee to undergo training, master the necessary specialty within the period established by the contract and work for the period specified in the student agreement.

If, at the conclusion of the employment contract, the parties have reached an agreement on advanced training by the employee before starting work, the employer sends the employee to the appropriate type of training. But most often, legal relations for the training and additional professional education of employees with a given employer arise between the employer and the employee, that is, persons who are already in an employment relationship. The basis for the emergence of these legal relations is an agreement that supplements the employment contract, in connection with which the employee, by order of the employer, is sent to these types of training, carried out in various forms.

Legal relations for training and additional professional education are terminated at the time of graduation.

Legal relations to promote employment and employment are usually considered as a unity of three successively interconnected legal relations: a) between the state employment service agency, which performs the intermediary function of the employment agency, and a citizen specified service; b) between the employment service and the employer; c) between a citizen and an employer where he is recommended or sent (on account of the established quota) government agency employment services.

The basis for the emergence of a legal relationship for the consideration of an individual labor dispute is the appeal interested employee with a claim (application) to the CCC or the court to protect the violated, in his opinion, rights, if the employee and the employer have not settled the differences that have arisen between them through negotiations. It (as an unresolved disagreement) can develop into an individual labor dispute from the moment the employee applies to the body for the consideration of individual labor disputes.

The procedure for considering individual labor disputes in the CCC is regulated by the Labor Code (Articles 381-390), and in court - by civil procedural legislation and only partially by the Labor Code (Articles 391-397).

The subjects of legal relations for the consideration of collective labor disputes are the participants in this dispute: employees (a team of employees) and the employer (their representatives), as well as bodies specially created for resolving the dispute acting at the stages of the conciliation procedure: conciliation commission, mediator and (or) labor arbitration.

The procedure for resolving these disputes is established in the Labor Code (Articles 398-418). A strike is an extreme means of resolving a collective labor dispute. During the strike period, the parties to the dispute must again resolve the dispute through the use of conciliation procedures in search of an agreement.

These legal relations for the consideration of individual labor disputes are procedural legal relations, are of a continuing nature and continue for the entire period of consideration of these disputes.

Definition 1

As a subject legal regulation in labor law are labor legal relations.

Labor relations arise both between employees of state and municipal institutions, as well as between participants business partnerships and societies based on personal labor activity.

Definition 2

Employment legal relations are relations regulated by the norms of labor law on the direct use of labor in teams in which material and spiritual benefits are created, as well as other relations arising from them in society.

Labor legal relations are formed between subjects in the process of concluding an employment contract. Employment legal relations also depend on social relations determined by the use of labor established by an employment contract that was in force in the past or is expected to be in the future.

The specifics of labor relations

Employment legal relations include the actual labor relations that arise between the employee and the employer regarding the direct use of labor, namely legal relations regarding:

employment;
wages;
establishment and use of labor conditions;
discipline and labor protection;
displacement and dismissal of workers;
retirement, etc.

Definition 3

Article 15 Labor Code Russian Federation, labor relations are relations that arise on the basis of an agreement between an employee and an employer that the employee personally undertakes to perform for a fixed fee labor functions(work in a specific specialty, qualification or position), obey the rules of the internal labor regulations, and the employer, in turn, must ensure the working conditions provided for by law, collective agreement, agreement, labor contract.

Labor law also regulates relations closely related to labor relations that arise outside the enterprise or in addition to the sphere of direct use of labor:

legal relations related to the provision of employment and employment;
organizational and managerial relations that arise between the administration and the trade union regarding the participation of workers in production management;
legal relations on training in production and advanced training of personnel, that is, professional training and retraining of personnel;
procedural labor relations (dispute resolution in the judiciary);
control and supervisory legal relations arising from the observance of labor legislation and labor protection rules;
legal relations for compensation for material damage, etc.

Labor and civil law relations

Definition 4

Labor relations are relations arising from the direct use of labor in a specific specialty, qualification, position, which implies the voluntary accession of the employee to the labor collective and the obligation to obey the rules of internal labor regulations.

Definition 5

The object of civil law regulation is not living labor or Team work, but materialized labor, which is usually realized in marketable products and services.

Labor relations are characterized by a reimbursable nature, since it is assumed that remuneration is paid for the labor spent.

They also have a strong will. Outside the will and mind of the employee and the employer, an employment relationship does not arise, since purposeful labor activity is impossible outside the consciousness.

Definition 6

The bearers of this will are the subjects of labor legal relations, that is, participants in labor relations who are endowed with a certain legal status.

The main subjects of labor relations are the employee and the employer.

Definition 7

The worker is individual who entered into an employment relationship with the employer.

Definition 8

The employer is an individual or legal entity(organization) that has entered into labor relations with the employee.

In accordance with federal laws, another entity that has the right to conclude labor contracts may also be recognized as an employer.

In labor relations, the rights and obligations of the employer are performed by:

an individual who acts as an employer;
legal authorities. persons (organizations) or persons authorized by them.

For the obligations of organizations financed in full or in part by the owner/founder, which arise from labor relations, the owner/founder bears additional responsibility.

A natural person is endowed with legal personality usually from the age of 16. An employment contract may be concluded with persons who have reached the age of 16. In some cases, namely when receiving the main general education or leaving a general education institution, an employment contract may be concluded with persons who have reached the age of 15 years. With the permission of one of the parents (guardian or trustee) and the body of guardianship and guardianship, a labor contract can be concluded by 14-year-old students in order to perform light work in their free time, which does not cause harm to health and does not violate the learning process.

In institutions of cinematography, theaters, theater and concert organizations, circuses, an employment contract may be concluded with persons under the age of 14 in order to participate in the creation and performance of works. However, in this case, according to Article 63 of the Labor Code of the Russian Federation, one of the parents (guardian, trustee) and the body of guardianship and guardianship must agree to this.

Required component the legal personality of a physical face - this is his delictual capacity, that is, sanity. The entity that has entered into labor legal relations must be responsible for own actions or inaction.

Definition 9

According to Article 37 of the Constitution of the Russian Federation and Article 21 of the Labor Code of Russia, the legal personality of an employee is understood as the totality of his rights and obligations.

Among them:

the right to provide work according to the employment contract: workplace, equipped in the appropriate conditions provided by the state. standards of organization and labor safety and collective agreement;
the right to timely pay;
the right to rest;
the right to receive full information about working conditions and the requirements for its protection at the workplace;
the right to vocational training, retraining and professional development:
the right to the opportunity to participate in the management of the organization;
the right to conduct collective bargaining and conclude contracts through their own representatives;
the right to protect their own labor rights by any means not prohibited by law;
the right to resolve individual and collective labor conflicts, including the right to strike:
the right to compensation for damage caused to the employee in the course of the performance of his labor duties, and compensation for non-pecuniary damage;
the right to compulsory social insurance.

Along with this, the employee must perform certain duties:

conscientiously perform labor duties;
observe labor discipline and labor protection requirements;
comply with established labor standards;
take care of the property of the employer and other employees.

The employer has the right to:

conclusion, amendment and termination of employment contracts with employees;
conducting collective negotiations and conclusion of collective agreements;
encouragement of employees for work;
the requirement from them to fulfill their labor duties and thrifty attitude to property;
bringing employees to disciplinary and material liability;
adoption of local regulations;
creation of associations of employers for the purpose of representing and protecting their own interests and the right to join them.

The obligations of employers are as follows:

provision of work stipulated by the employment contract;
ensuring labor safety and conditions that meet the requirements of labor protection and hygiene;
providing employees with equipment, tools, technical documents and other means that are necessary for the performance of their labor duties;
wages of employees;
conducting collective negotiations, conclusion of collective agreements;
providing representatives of employees with the information necessary for the conclusion of collective agreements, agreements and control over their implementation;
implementation of mandatory social employee insurance;
compensation for harm caused to employees in the process of fulfilling their labor duties;
compensation for moral damage.

In addition to employees and employers, the subjects of labor law are:

labor collective, that is, the social community of employees of the organization (all workers in the organization, including officials administrations with which the organization has an employment contract);
a trade union, that is, a public association of citizens, created on a voluntary basis, based on common production professional interests by the nature of their activity in order to represent the interests and protect their social labor rights.

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