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The grounds for the emergence of labor relations are employee director. Grounds for the emergence of labor relations

Labor Relations arise between the employee and the employer on the basis of an employment contract concluded by them in accordance with the Labor Code of the Russian Federation (part 1 of article 16 of the Labor Code of the Russian Federation). consists in writing, is usually drawn up in two copies, each of which is signed by the parties (parts 1 and 3 of article 67 of the Labor Code of the Russian Federation). Hiring is formalized by an order (order) of the employer, the content of which must comply with the terms of the concluded employment contract (part 1 of article 68 of the Labor Code of the Russian Federation). The order (instruction) of the employer for employment must be announced to the employee against signature within three days from the date of the actual start of work (part 2 of article 68 of the Labor Code of the Russian Federation).

In cases and in the procedure established by labor legislation and other regulatory legal acts containing norms labor law, or the charter (statute) of the organization, labor relations arise on the basis of an employment contract as a result of:

election to office;
election by competition to fill the relevant position;
appointments or approvals;
assignments to work by bodies authorized in accordance with federal law on account of the established quota;
a court decision on the conclusion of an employment contract;
recognition of relations associated with the use of personal labor and arising on the basis of a civil contract, labor relations.

Labor relations between the employee and the employer also arise on the basis of the factual admission of the employee to work with the knowledge or on behalf of the employer or his authorized representative in the event that the employment contract was not properly executed. Actual admission of an employee to work without the knowledge or instructions of the employer or his authorized representative is prohibited.

Clause 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 "On the application by the courts Russian Federation Labor Code Of the Russian Federation "it is explained that if the employment contract was not drawn up properly, but the employee started to work with the knowledge or on behalf of the employer or his authorized representative, then the employment contract is considered concluded and the employer or his authorized representative is obliged no later than three working days from the day of actual admission to work, draw up an employment contract in writing (part 2 of article 67 of the Labor Code of the Russian Federation). It should be borne in mind that the representative of the employer in this case is a person who, in accordance with the law, other regulatory legal acts, constituent documents legal entity(organization) either by local regulations or by virtue of an employment contract concluded with this person, is empowered to hire employees, since it is in this case, when the employee is actually admitted to work with the knowledge or on behalf of such a person, labor relations arise (Article 16 of the Labor Code of the Russian Federation) and the employer may be obliged to draw up an employment contract with this employee in a proper manner.

The Constitutional Court of the Russian Federation By its definition of 05/19/2009 No. 597-О-О determined that the norm of the Labor Code of the Russian Federation on admitting an employee to work with the knowledge or on behalf of the employer or his representative in the case when the employment contract was not properly executed, is additional guarantee for employees who started work with the permission of an authorized official without concluding an employment contract in writing, and is designed to eliminate uncertainty legal status such workers. Therefore, it also cannot be considered as violating constitutional rights.

ST 16 Labor Code of the Russian Federation.

Labor relations arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with this Code.

In cases and in the procedure established by labor legislation and other regulatory legal acts containing labor law norms, or by the charter (statute) of the organization, labor relations arise on the basis of an employment contract as a result of:

election to office;

election by competition to fill the relevant position;

appointments or approvals;

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

a court decision on the conclusion of an employment contract;

the seventh paragraph has ceased to be in force;

recognition of relations associated with the use of personal labor and arising on the basis of a civil contract, labor relations.

Actual admission of an employee to work without the knowledge or instructions of the employer or his authorized representative is prohibited.

Commentary on Art. 16 of the Labor Code of the Russian Federation

1. By virtue of the principles of freedom of labor (part 1 of article 37 of the Constitution of the Russian Federation) and the prohibition of forced labor (see article 4 of the Labor Code of the Russian Federation and a commentary to it), labor relations between an employee and an employer can arise in our country only on the basis of a voluntarily concluded an employment contract with the free expression of the will of its parties. In this sense, an employment contract is a universal basis for the emergence of labor relations of any kind. In practical terms, this means that the work of each employee, used in the framework of legal relations that have signs of labor (see Article 15 of the Labor Code of the Russian Federation and the commentary to it), not only can, but must be accompanied by the conclusion of a written employment contract (see Art. 67 of the Labor Code of the Russian Federation and a commentary to it). The absence of such an agreement usually means a violation by the employer of the requirements of labor legislation with all the ensuing negative consequences for him (see article 419 of the Labor Code of the Russian Federation and a commentary to it).

2. An employment contract is a legal-forming legal fact, with which the law connects the emergence of labor legal relations filled with the rights and obligations of its parties (see Articles 21, 22 of the Labor Code of the Russian Federation and comments to them). In this capacity, an employment contract is, as a rule, a self-sufficient basis for the emergence of various labor legal relations.

At the same time, a law, another normative act or charter (regulation) of an organization may complicate the employment procedure for certain categories of workers and employers and establish procedures preceding or accompanying the conclusion of an employment contract, which involve the performance of certain actions that have the properties of legally significant facts. Together with the employment contract, they form the so-called complex factual composition as a set of individual legal facts occurring in a certain sequence. The last in the chain of these facts is usually an employment contract, with the conclusion of which the formation of a complex factual composition is completed, giving rise to the corresponding labor relationship. The Labor Code establishes seven such complex structures: 1) election to office; 2) election by competition; 3) appointment or confirmation in office; 4) assignment to work by statutory bodies on account of the established quota; 5) the issuance of a court decision on the conclusion of an employment contract; 6) recognition of relations arising on the basis of a civil law contract, labor relations; 7) the actual admission of a person to work. Some of them are devoted to separate articles of the Labor Code of the Russian Federation (see Articles 17-19.1 of the Labor Code of the Russian Federation and comments to them).

3. Part 2 of the commented article provides for the emergence of labor legal relations on the basis of a complex factual composition, including the act of assignment to work on account of the established quota, and is usually used to ensure the employment of persons who have a deliberately reduced competitiveness in the labor market. This employment option is to a certain extent contrary to the interests of the employer, since it limits his freedom in choosing the employee he needs. However, in this case, the priority is deliberately given to the interests of employees and, to a certain extent, of society as a whole. The number of persons employed in this way, federal and regional legislation includes: persons with disabilities; orphans; children left without parental care; graduates educational organizations; citizens dismissed from military service by conscription; persons under the age of 18 and other categories of citizens who experience difficulties in finding a job and therefore need an increased social protection(see, for example, Art.21 Federal law of November 24, 1995 N 181-FZ "On social protection of disabled people in the Russian Federation").

4. Part 2 of the commented article provides for the emergence of labor legal relations on the basis of a complex factual composition, which includes a court decision on the conclusion of an employment contract. Making such a decision is possible under the following conditions: a) unjustified refusal to hire a person (see); b) an appeal by this person of the fact of refusal to conclude an employment contract in court (see Art. 391 of the Labor Code of the Russian Federation and a commentary to it); c) the court makes a decision to compel the employer to conclude an employment contract with the relevant person. After the relevant court decision has been made, the employer must conclude an employment contract with a person whom he previously refused to employ.

When making this decision, the court does not determine the specific content of the relevant labor contract, therefore, in different cases, it can be determined in different ways. When the unjustified refusal to hire was accompanied by a preliminary announcement by the employer of the specific conditions of the employment contract, it is these conditions that should constitute the content of the contract concluded on the basis of a court decision. This situation does not always occur, more often you have to deal with the fact that a person getting a job has only the most general information about the work required by the employer and the amount of his payment. For this reason, the parties, executing the court decision, must re-agree on all, except for the conditions of the employment contract known at the time of the initial attempt at employment. The minimum set of these conditions is specified in, and the starting points defining the limits of the employee's claims and the minimum corresponding obligations of the employer should be recognized as standard working conditions for employees performing similar labor functions for this employer. In the case when the employer does not have such employees, one should be guided by the standard working conditions characteristic of labor contracts workers of a similar category who work in the same area.

This statement is based on the provisions prohibiting discrimination against the employee in comparison with other workers, and enshrining the employee's right to fair working conditions, which in this situation must be recognized as the terms of employment contracts that are most common for the given employer or in the given locality among employees of the corresponding professional category.

It should be especially noted that in the absence of an agreement on a different date of entry into force of such an agreement, it is necessary to consider the day of the employer's refusal to conclude an employment contract with this employee.

5. The conclusion of an employment contract, as a rule, must precede the use of labor of any employee (see Articles 63 - 71 of the Labor Code of the Russian Federation and comments to them). However, Part 3 of Art. 16 of the Labor Code of the Russian Federation made one exception from this rule, by virtue of which the act of admission to work, included in a complex factual composition, giving rise to labor legal relations with a specific person, always precedes the conclusion of an agreement. But for the recognition of this fact as an element of such a complex factual composition, certain conditions are also necessary. First of all, it is required that the admission to work was made by the subjects authorized to commit such actions (see paragraph 12 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004 N 2 "On the application of the Labor Code of the Russian Federation by the courts of the Russian Federation"). These subjects include: the employer himself in the case when he is represented natural person; persons performing the functions of sole or collegial bodies employer-organization, whose competence includes the authority to hire; other persons, although not having the authority to hire, but who were acting at the time of the actual admission of the person to work on a direct order or with the knowledge of the employer or his authorized representative. All these persons in most cases belong to the managerial staff of the employer, who are directly entrusted with the function staffing activities of the latter. Employees who are not such personnel should usually not be considered as persons officially representing the employer and therefore capable of performing any actions that are legally significant for him. Actual admission of an employee to work by such persons without the knowledge or instructions of the employer or his authorized representative is prohibited.

At the same time, in practice, cases of admitting a person to work as a representative of the organization's management personnel are widespread, who did not formally have the necessary powers for this and therefore acted in conditions of exceeding their powers without the knowledge or without a special order of the employer. However, due to specific circumstances, an employee who is admitted to work may have good reason to perceive the relevant manager in this situation as an official representative of the employer who has the necessary powers to perform such actions.

When resolving such cases, it is necessary to proceed from the following considerations. Labor organization and labor management are the functions of the employer that result from his economic situation the sole owner and user by all factors of his economic activity, therefore, the employer must carry out all these functions at his own risk. The consequence of this is the imposition on him of the burden of bearing all the consequences for the negative results of his business, including responsibility for the actions (inaction) of his employees in the course of the performance of their labor duties in relation to third parties.

The employer can perform his functions efficiently and ineffectively. When their effective implementation takes place, the employer takes all the necessary local regulations, including the rules of the internal labor schedule, giving everyone who starts a job with a clear idea of the procedure for hiring, the rights and obligations of employees, the competence of managers, etc. In such conditions, it is practically impossible to accidentally involve in employment relationships those persons who do not have the necessary powers for this.

A different situation arises with the ineffective performance of the relevant functions by the employer. In this case, there may be no local regulations at all that regulate the competence of specific managers and the procedure for hiring. Then anyone applying for a job to this employer the person is initially deprived of the opportunity to get a clear idea of the real powers of the person who negotiated with him about getting a job and allowed him to work. Taking into account the fact that the employer must bear economic and legal responsibility for the negative consequences of the ineffective organization of the work of its employees, the actual admission to work of a specific person in such a situation entails at least the employer's obligation to pay him actually worked time (work performed), and with the consent of the employer or his an authorized representative - the emergence of an employment relationship (see article 67.1 of the Labor Code of the Russian Federation and a commentary to it).

How an employment relationship originates

The relationship that develops between employees and employers about the performance certain types works are called labor relations. They are based on a voluntary agreement, which is a manifestation of the free expression of the will of the parties.

Labor contracts can be attributed to the most universal grounds for the emergence of this type of relationship. Such agreements refer to legal facts that are the reason for the emergence of mutual rights and obligations between its parties.

The grounds for the emergence of labor relations regulated by the contract can be presented in the form:

election of persons to certain positions by elections;
election of persons on a competitive basis for the purpose of filling positions;
appointment or approval of persons;
directions for the execution of work, within the framework of quotas;
decisions of the judiciary on the conclusion of employment contracts;
actual admission to work, regardless of the proper execution of the contract.

The mutual activity of employees and employers is determined by the provisions of the Labor Code, legislative and local acts, which include: collective agreements, rules and internal instructions provided for each individual position.

The RF Constitution is designed to protect the position of workers. Disputes that cannot be resolved within the enterprise are subject to legal proceedings.

An employment contract as the basis for the emergence of an employment relationship

In addition to the fact that the employment contract must be considered as the most important basis for the emergence of labor relations, it belongs to the main institution of the entire legal industry.

There are three aspects that are inherent in this type of contract:

a contract is an agreement that arises between an employee and a potential employer;
the employment agreement refers to the institution of the industry that regulates the procedure for hiring, performing labor functions, as well as terminating or changing its conditions;
the contract is a legal fact that affects not only labor legal relations, but also related to them.

The concept of adjacent relations should be understood as those relations that arise as a result of civil law agreements. Such relations are similar to labor relations, but they have a different legal nature.

The precise definition of an employment contract is contained in Art. 56 TC. This concept is a reflection of those mutual rights and obligations that arise for the subjects of legal relations as a result of the conclusion of an agreement.

The fact of the conclusion of an employment contract obliges the parties to fulfill the obligations assumed by them.

So, first of all, the employee is obliged to perform the functions assigned to him personally, while observing the internal work schedule. The main obligation of the employer is to pay remuneration for the work performed, as well as to create such working conditions that are necessary for the performance of the labor functions assigned to the employee.

The freedom of expression of the will of the parties refers not only to the moment of concluding an agreement, but also to the process of changing its essential conditions, as well as to termination. Protecting the rights of employees, the legislator does not allow and limits employers in unjustified termination of labor relations with a certain circle of employees who are classified as less protected.

Conflict situations that arise in the process of labor relations are subject to resolution by contacting the commission on labor disputes, and in case of impossibility of resolution in this way, by way of court proceedings.

The facts of the emergence of labor relations

V practical activities there are often cases when labor relations are not properly formalized. As a rule, in the event of dismissal, the employee has difficulties in obtaining work book or final settlement.

In order to confirm the existence of an employment relationship, an appeal to the justice authorities will be required. The employee will need to initiate a lawsuit in order to establish the fact of a relationship with the employer, which will become the basis for collecting unpaid wages, receiving compensation payments, satisfaction of claims regarding compensation for moral suffering, etc.

Written documentation of employment can be used as evidence of the emergence of an employment relationship.

In the absence of such, circumstantial evidence can be used, which include the orders of the employer, certificates received at the place of work, a pass that provides access to the workplace.

In the course of legal proceedings, an employee who intends to establish the fact of being in an employment relationship is entitled to petition the court for information from the tax and pension authorities, as well as from the social insurance fund.

These government agencies must have information from employers about hired and dismissed workers, as well as receive cash related to mandatory payments transferred from wages employed.

You can confirm the fact of employment staffing table, a timesheet, which records the time worked by each individual employee, schedules for entering work shifts, as well as other source documents that may contain information about the applicant.

Testimony can also be used as evidence. Employees of the organization have the right to act as witnesses who can reliably confirm the existence of an employment relationship with the plaintiff.

Labor relations arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with the Labor Code of the Russian Federation.

election to office;

election by competition to fill the relevant position;

appointments or approvals;

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

a court decision on the conclusion of an employment contract;

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

Parties to labor relations

The parties to the employment relationship are the employee and the employer.

Worker- an individual who has entered into an employment relationship with an employer.

Persons who have reached the age of sixteen have the right to enter into labor relations as employees, and in cases and in the procedure established by the Labor Code of the Russian Federation, also persons who have not reached the specified age.

Employer- an individual or a legal entity (organization) that has entered into an employment relationship with an employee. In cases stipulated by federal laws, another entity entitled to conclude employment contracts may act as an employer.

For the purposes of the Labor Code of the Russian Federationemployers - individuals admit:

individuals registered in accordance with the established procedure as individual entrepreneurs and carrying out entrepreneurial activities without forming a legal entity, as well as private notaries, lawyers who have established lawyers' offices, and other persons whose professional activities in accordance with federal laws are subject to state registration and (or) licensing that entered into labor relations with employees in order to carry out these activities (hereinafter referred to as employers - individual entrepreneurs). Individuals who, in violation of the requirements of federal laws, carry out the specified activities without state registration and (or) licensing, who have entered into labor relations with employees in order to carry out this activity, are not released from the duties imposed by this Code on employers - individual entrepreneurs;

individuals who enter into labor relations with employees for the purpose of personal service and assistance with housekeeping (hereinafter referred to as employers - individuals who are not individual entrepreneurs).

The rights and obligations of an employer in labor relations are exercised by: an individual who is an employer; governing bodies of a legal entity (organization) or their authorized persons in the manner prescribed by this Code, other federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of local self-government bodies, constituent documents of a legal entity (organizations) and local regulations.

As employers, the following have the right to conclude employment contracts:

individuals who have reached the age of eighteen years, provided that they have full civil capacity, as well as persons who have not reached the specified age - from the day they acquired civil capacity in full.

individuals with independent income who have reached the age of eighteen years, but limited by the court in their legal capacity, have the right to written consent trustees to enter into employment contracts with workers for personal service and assistance with housekeeping.

on behalf of individuals with independent income who have reached the age of eighteen years, but recognized by the court as incompetent, their guardians may conclude employment contracts with employees in order to personally serve these individuals and help them with housekeeping.

minors between the ages of fourteen and eighteen, with the exception of minors who have acquired civil legal capacity in full, may conclude employment contracts with employees if they have own earnings, scholarships, other income and with the written consent of their legal representatives (parents, guardians, trustees).

For the obligations arising from labor relations of employers - institutions financed in full or in part by the owner (founder), as well as employers - of state-owned enterprises, the owner (founder) bears additional responsibility in accordance with federal laws and other regulatory legal acts of the Russian Federation.

Basic rights and obligations of the employee

The employee has the right to:

conclusion, amendment and termination of an employment contract in the manner and on the terms established by the Labor Code of the Russian Federation and other federal laws;

providing him with work stipulated by the employment contract;

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

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

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

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

professional training, retraining and advanced training in the manner prescribed by the Labor Code of the Russian Federation, other federal laws;

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

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

collective bargaining and the conclusion of collective agreements and contracts through their representatives, as well as information on the implementation of the collective agreement, agreements;

protection of their labor rights, freedoms and legal interests in all ways not prohibited by law;

resolution of individual and collective labor disputes, including the right to strike, in accordance with the procedure established by the Labor Code of the Russian Federation, other federal laws;

compensation for harm caused to him in connection with the performance of labor duties, and compensation for moral damage in the manner prescribed by this Code, other federal laws;

compulsory social insurance in cases stipulated by federal laws.

The employee is obliged:

conscientiously fulfill his labor duties assigned to him by the employment contract;

comply with the internal labor regulations;

observe labor discipline;

comply with established labor standards;

comply with labor protection and labor safety requirements;

take good care of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property) and other employees;

immediately inform the employer or direct supervisor about a situation that poses a threat to the life and health of people, the safety of the employer's property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property).

New edition of Art. 16 of the Labor Code of the Russian Federation

Labor relations arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with this Code.

election to office;

election by competition to fill the relevant position;

appointments or approvals;

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

a court decision on the conclusion of an employment contract;

the seventh paragraph has ceased to be in force;

recognition of relations associated with the use of personal labor and arising on the basis of a civil contract, labor relations.

Actual admission of an employee to work without the knowledge or instructions of the employer or his authorized representative is prohibited.

Commentary on Article 16 of the Labor Code of the Russian Federation

Article 16 of the Labor Code of the Russian Federation enshrines one of the most important norms of labor law. According to this article, labor relations arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with the Labor Code of the Russian Federation.

Federal Law N 90-FZ supplemented Article 16 of the Labor Code of the Russian Federation with part 3, according to which labor relations between the employee and the employer also arise on the basis of the employee's actual admission to work with the knowledge or on behalf of his representative in the case when the employment contract was not proper way framed.

It can be said that this norm was enshrined in order to protect the rights of workers. A frequent situation today is when the employer does not conclude an employment contract with employees in order to delay or not pay wages in the future. The content of such a provision in Article 16 of the Labor Code of the Russian Federation gives employees a reason to file a lawsuit against an unscrupulous employer, even if the employee worked without proper paperwork.

Another commentary on Art. 16 of the Labor Code of the Russian Federation

1. In connection with the freedom of labor proclaimed in our country (part 1 of article 37 of the Constitution of the Russian Federation), and the prohibition of forced labor (see article 4 of the Labor Code of the Russian Federation and a commentary to it), labor relations between an employee and an employer can arise only in the force of their voluntary agreement based on the free will of each of the parties. By virtue of this Art. 16 of the Labor Code of the Russian Federation speaks of an employment contract as a universal basis for the emergence of labor relations for any kind. In practical terms, this means that the work of each employee, used in the framework of relations that have signs of labor relations (see article 15 of the Labor Code of the Russian Federation and a commentary on it), must be accompanied by the conclusion of a written employment contract without fail (see article 67 of the Labor Code RF and a commentary to it). In turn, the absence of such an agreement should be considered in each specific case as a violation of labor legislation with all the ensuing negative consequences for the employer (see article 419 of the Labor Code of the Russian Federation and the commentary to it).

2.From a legal point of view, an employment contract is a law-forming legal fact, whose content is formed by the mutual expression of the will of the employee and the employer, with whom the law connects the emergence of labor legal relations filled with the rights and obligations of its parties (see Articles 21, 22 of the Labor Code of the Russian Federation and commentary to them).

By general rule an employment contract is a self-sufficient basis for the emergence of any employment legal relationship. At the same time, a law, another normative act or the charter (regulation) of an organization may complicate the employment procedure for some employees and employers by establishing procedures preceding or accompanying the conclusion of an employment contract, including the performance of certain actions that have the properties of legally significant acts. In a number of cases, these acts, together with an employment contract, form a so-called complex factual composition, which is a collection of individual legal facts that occur in a certain sequence. The last in the chain of these facts is usually an employment contract, with the conclusion of which the formation of a complex factual composition is completed, giving rise to an employment legal relationship linking the employer with a specific individual who has acquired the status of an employee.

The Labor Code establishes six such complex structures. Three of them (election to office, election by competition and appointment or approval in office) are regulated by separate articles of the Labor Code of the Russian Federation (see Articles 18-19 of the Labor Code of the Russian Federation and commentary on them), and three others (referral to work by those authorized by law authorities on account of the established quota, a court decision on the conclusion of an employment contract and the actual admission of a person to work) are not regulated by separate articles.

3. A complex factual composition, including the act of assignment to work, is usually used in cases where the employer is legally obliged to hire representatives of a certain category of individuals on account of the established quota. Most often, such a measure is used to ensure the employment of persons who have a deliberately reduced competitiveness in the labor market. Of course, it does not always take into account the interests of the employer, since it limits his freedom in choosing the employee he needs. However, in this case, priority is given to the public interest.

Federal legislation included among these persons, for example, persons with disabilities. In accordance with Art. 21 of the Federal Law of November 24, 1995 N 181-FZ "On social protection of disabled people in the Russian Federation" for organizations with more than 100 employees, the legislation of the constituent entity of the Russian Federation establishes a quota for the employment of disabled persons in percentage of average headcount employees (but not less than 2 and not more than 4%).

Regional legislation supplements the list of such persons with other categories of citizens, as a rule, also experiencing difficulties in finding a job and, therefore, in need of increased social protection. For example, the Law of Moscow of November 12, 1997 N 47 "On quotas for jobs in the city of Moscow" (Vedomosti of the Moscow Duma. 1998. N 2) established a quota for the employment of orphans and children left without parental care; The Law of St. Petersburg of October 8, 1997 N 161-53 (as amended on October 30, 1998 N 230-49; February 23, 2001 N 118-16; December 21, 2001 N 855-113) " On quotas for jobs for youth employment "(Bulletin of the Legislative Assembly of St. Petersburg. 1997. N 12; 1999. N 1; 2001. N 4; 2002. N 2) provides for the approval of the annual quota for the employment of graduates of general educational institutions, educational institutions of primary and secondary vocational education, graduates of higher educational institutions, citizens dismissed from military service by conscription, as well as persons under the age of 18, especially in need of social protection and experiencing difficulties in finding a job.

4. Part 2 of Art. 16 provides for the possibility of the emergence of labor legal relations on the basis of a complex factual composition, one of the elements of which is a court decision on the conclusion of an employment contract.

This actual composition is formed in the presence of the following conditions: a) unjustified refusal to hire a specific person (see article 64 of the Labor Code of the Russian Federation and a commentary to it); b) appeal by this person in court against the fact of refusal to conclude an employment contract (see Art. 391 of the Labor Code of the Russian Federation and a commentary to it); c) the court makes a decision to compel a specific employer to conclude an employment contract with the relevant person.

On the basis of a court decision, the employer must conclude an employment contract with a person who was previously refused employment. At the same time, it should be borne in mind that the court, when making this decision, does not determine the specific content of the relevant employment contract. In this regard, the question arises: on what conditions should such an employment contract be concluded? There is no unequivocal answer to it for the reason that the situation preceding the unjustified refusal to hire a person may be completely different in each specific case.

There are at least two initial positions that determine the way of filling with specific conditions of the content of an employment contract concluded on the basis of a court decision. So, if an unjustified refusal to hire took place upon the preliminary announcement by the employer of the specific conditions of the employment contract, then it is these conditions that should form the content of the contract concluded on the basis of a court decision.

However, this situation is quite rare. Much more often a person comes to get a job, having only the most general information characterizing the work required by the employer and the amount of his payment. Finding themselves in a similar situation, the parties, carrying out the court's decision, in fact should come to additional agreement in relation to all, except for the conditions of the employment contract known at the time of the initial attempt at employment. The minimum set of these conditions is determined by Art. 57 of the Labor Code of the Russian Federation (see the commentary to it). At the same time, the starting points determining in this case the maximum limits of the employee's claims and the corresponding level of the employer's obligations should be recognized as the standard working conditions of employees performing similar labor functions for this employer. In the event that the employer does not have such employees, it is necessary to focus on the usual working conditions characteristic of the employment contracts of employees of a similar specialty, qualification or position in the same locality.

This statement is based primarily on the content that prohibits discrimination of the employee in comparison with other workers (see article 3 of the Labor Code of the Russian Federation and the commentary to it), and, in addition, on the provisions that enshrine the employee's right to fair working conditions, and as such , in relation to the described case, it is necessary to recognize the most common terms of employment contracts concluded with employees of the corresponding professional category by the employer or in the given locality.

It should be especially noted that in the absence of an agreement on a different date of entry into force of this agreement, it is necessary to consider the day of the employer's refusal to conclude an employment contract with the employee.

5. As a general rule, the conclusion of an employment contract must precede the employment of any employee (see Articles 63 - 71 of the Labor Code of the Russian Federation and a commentary to them). However, in the last part of Art. 16 of the Labor Code of the Russian Federation, one exception is made to this rule, by virtue of which the act of admission to work, included in a complex factual composition, giving rise to labor legal relations with a specific person, always precedes the conclusion of an agreement.

For the recognition of this act as an element of a complex factual composition that gives rise to labor relations, certain conditions must be met. So, it is required that the admission to work was made by the subjects entitled to commit such actions (see part 2, paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2). In turn, such entities should include: a) the employer himself, if he is represented by an individual; b) persons who are entrusted with the performance of the functions of the sole or collegial bodies of the employer-organization and whose competence includes the authority to hire; c) other persons, although not having the authority to hire, but acting at the time of the actual admission of the person to work on a direct order or with the knowledge of the employer himself or his authorized representative.

All these persons, in most cases, are representatives of the employer's management personnel, who are directly entrusted with the function of staffing the latter's activities. As a general rule, employees who are not management personnel cannot and should not be considered as persons officially representing the employer and, therefore, capable of performing any actions that are legally significant for him.

At the same time, in practice, the question often arises about the consequences of admitting a person to work, performed by a representative of the organization's management personnel, who did not formally possess the necessary powers for this and therefore acted in conditions of actual exceeding of his competence without the knowledge or without a special order of the employer. At the same time, this situation may be characterized by the fact that the employee admitted to specific work had every reason to perceive the relevant manager as an official representative of the employer who has the necessary powers to perform such actions. In other words, in practice, a situation is possible in which an employee who starts work might not have known and should not have known that the act of his admission to work by a representative of the organization's management occurred in the absence of prior approval from a competent subject (body or person), authorized to represent the employer in employment relationships.

When deciding such a question, it is necessary to be guided by the following considerations.

Labor organization and labor management are the functions of the employer, which result from his economic position of the user by factors included in his economic sphere. The employer carries out these functions at his own risk, the consequence of which is the burden of negative economic results imposed on him and the responsibility to third parties for the actions (inaction) performed by his employees in the performance of labor duties.

The employer can perform his functions of organizing and managing labor efficiently and ineffectively. In the case of their effective implementation, he adopts the necessary local regulations, including the rules of the internal labor schedule, giving everyone a clear idea of the procedure for hiring and firing employees, their basic rights and obligations, the competence of managers, etc. In such conditions, it is practically impossible the emergence of a situation characterized by the involvement in employment relations of those managers who do not have the necessary powers for this. In addition, a person applying to work in such an organization always has the opportunity to obtain from the content of the same internal labor regulations full information about the circle of managers authorized to perform legally significant actions in the field of these relations. Thus, if the employer took the necessary actions to eliminate the conditions for the occurrence of the situation described above, but it nevertheless occurred due to the improper fulfillment of the duties by a particular manager and the failure of the person entering the job to use his right to receive reliable information required to make a decision on joining a given job. to the employer, the latter should not be recognized as a party to the employment relationship, to the occurrence of which he was actually not involved.

A different situation arises when the employer is ineffectively performing his functions of organizing labor and managing the labor of his employees. In this case, the employer may not have any local regulations at all that establish the scope of competence of specific managers and a clear procedure for hiring. In these conditions, each person who starts work for the respective employer is initially deprived of the opportunity to get a clear idea of the real powers of the person who negotiated with him about employment and allowed him to work. Since any employer should be responsible for the risk of negative consequences from the ineffective organization of the work of its employees, then the actual admission to work of a particular person in this situation should be considered as legal fact, included in the complex factual composition, which is the proper basis for the emergence of labor relations.

It is precisely this interpretation of the actual admission to work that should put an end to those who received Lately the increasing prevalence of abuses by employers of their rights in the field of employment, by virtue of which, as a result of deception of employees, they are free from all their duties to them. This negative practice has developed, for example, in the construction sector of the economy, in which the search and supply of workers for specific construction organizations often carried out by so-called recruiting firms. They, without concluding employment contracts and therefore not bearing any responsibility for their activities, direct job seekers persons to specific construction sites. At these facilities, negotiations about work and actual admission to work are carried out by the managers of these works, who obviously do not have the necessary powers by virtue of the statutory or local regulations of their organization, which, of course, the employees do not know about. At the same time, they, of course, do not conclude any contracts with those invited to work, citing various reasons (temporary absence of the accountant, the seal of the organization, the emergency (emergency) of the situation, etc.). The result of this scheme of relations between the employer and employees is often the refusal of the employer to recognize them as such, and the factual impossibility of the latter to win lawsuits due to their admission to work by formally unauthorized persons.

In addition to the above arguments, the courts could be guided in such situations by the idea of the employer's responsibility for the actions of its managerial personnel (as well as any other of its employees) and make decisions on the actual occurrence of labor legal relations with persons who, by virtue of the evidence presented to the court, actually performed certain work in the interests and in favor of a particular employer.

When determining the content of such employment contracts and the date of their entry into force, one should be guided by the considerations set out in the previous paragraph of the commented article.

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