6 object subjects and the content of the labor relationship. The concept, features and signs of labor relations

Question 19.20. The concept and system of legal relations in the field of employment.

Labor relations are regulated by the norms of labor law and act in the form labor rights relations.

Employment relationship- this is an employment relationship arising on the basis of an employment contract and regulated by labor law, according to which one subject - an employee undertakes to perform a labor function subject to the rules of internal labor regulations, and another subject - an employer is obliged to provide work stipulated by this contract, ensure healthy, safe and other working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreement, agreements, local regulations, an employment contract, including remuneration of an employee in accordance with his qualifications, complexity of work, quantity and quality of labor.

Features of the employment relationship:

1) the subjects (parties) of an employment relationship are always the employee and the employer;

3) the employment relationship is of a continuing nature, the rights and obligations of the parties are implemented systematically in the process labor activity in the sphere of the use of dependent labor;

Complementary employment relationships, as a rule, exist together with the main employment relationship. But the appearance of related ones depends on the occurrence of specific legal facts (committing a disciplinary offense, causing damage to an employee or employer, etc.).

Insofar as individual can realize his abilities not only by concluding an employment contract, but also using civil law contracts (personal contract, assignment, paid provision services, etc.). It is necessary to take into account the distinctive features of an employment relationship from civil law and other relations arising from the use of labor. As the main characteristic of labor relations in the field of the use of dependent labor, the following features are distinguished.

1. The subject of an employment relationship is the very process of labor activity for a certain labor function in common organization labor existing within the organization, the employer - an individual. The subject of civil law labor relations is the result of labor (construction of an object, delivery of cargo to its destination, writing a book, developing an invention, a computer program, etc.).

2. Having concluded labor contract(that is, in the event of an employment relationship), the employee is obliged to obey the internal labor regulations of a particular organization established by the employer, observe labor and technological discipline, bear disciplinary or liability for their violations. What is not in civil law relations. The employee works to achieve the final result at his own peril and risk.

3. The conclusion of an employment contract involves the performance of a labor function - work according to the position in accordance with staffing, professions, specialties indicating qualifications; specific type of work entrusted to the employee, as a rule, by his personal labor. The exception is work at home and in retail trade where the employee can involve family members in the performance of his work. In civil law relations, the customer is not interested in who and how will fulfill the order, since only the end result is important to him.

4. An employer using the work of an employee on the basis of an employment contract is obliged to create healthy and safe conditions labor, comply with labor legislation, including labor protection legislation. This obligation is not always assigned to the customer in civil law relations.

5. The employee and the employer have the right to terminate the employment contract (termination of the employment relationship) without any sanctions, subject to established by law legal procedures. At the same time, the employer is obliged to warn the employee about dismissal in cases provided for by labor legislation, and also to pay severance pay and other compensation. In case of non-compliance with the terms of a civil law contract, sanctions may be applied to the parties.

6. The presence of labor relations implies the systematic (as a rule, at least twice a month) payment of wages in accordance with the labor expended, carried out by the employee in the established work time. Civil-law labor relations, as a rule, involve remuneration for labor according to the final result. The amount of payment is determined arbitrarily by the customer and the contractor. It does not depend on the duration of the working time spent by the performer.

Types of labor relations depend on the types of relevant labor relations, the type of labor contract underlying the emergence, change, existence and termination of the labor relationship, the form of ownership on which they arise, the organizational and legal form of the organization (employer), the area in which the implementation of the labor relationship will take place . That is, there are as many types of labor relations as there are types of employment contracts. Within the framework of one organization (employer), there may be several types of employment contracts, and, consequently, labor relations.

Based on the scope of the employment contract, labor relations can be classified into realizable: in the regions of the Far North; in diplomatic missions and consulates.

Depending on the legal form they can be subdivided into labor relations arising, in: joint-stock companies, partnerships, production cooperatives, unitary and state enterprises; and, based on the form of ownership, it is possible to single out the legal relations used by employers created on state and private property.

A specific place among employment contracts is occupied by a part-time employment contract. Its specificity lies in the fact that on its basis several labor relations may arise, in which the same employee will be a party. Moreover, they can arise between the same employee and the employer or another (other) employer.

The content of the employment relationship consists of two elements: material and volitional. The material content of the labor relationship constitute the actual behavior of the employee and the employer. The employee actually performs work on a specific labor function, and the employer pays him for this work wages and creates normal working conditions for work.

Volitional (legal) content of the labor relationship form the subjective labor rights and obligations of the employee and the employer. Any subjective right as an element of an employment relationship is a unity of the possibility of behavior of the most eligible employee or employer; the ability to demand certain behavior from an employee or employer; the possibility of resorting to coercive power of the state in case of non-fulfillment or improper fulfillment of requirements by an employee or employer. Thus, subjective law provides answers to the questions of what opportunities the subjects of an employment relationship have in relation to each other.

The subjective rights of an employee are characterized by specificity, pretentiousness and relative freedom of behavior in their implementation. The employee has the right to demand from the employer the provision of work in accordance with his labor function, at the same time, in the performance of his labor duties, he has the right to independently take the initiative aimed at introducing best practices labor. Pretentiousness is manifested in the fact that the employee has the right to demand the provision of safe and healthy working conditions, normal working conditions.

The subjective rights and obligations of each employee, as a party to an employment relationship, establish the boundaries and content of the possible and proper behavior of the employee, within which he has the right to act, demand, claim, enjoy benefits and satisfy the mutual interests and needs of the employer.

The employer also has subjective rights and obligations. He has the right to require the employee to perform work in accordance with the labor function of proper quality and set time. At the same time, he is obliged to provide the employee with a workplace, provide the necessary tools, overalls, etc.

It is important to note that the subjective labor rights and obligations of the employee and the employer act as corresponding to each other. That is, the right of the employee corresponds to the obligation of the employer and vice versa.

That is, an employment relationship arises not only on the basis of an employment contract, but this contract predetermines its content.

Employment relationship - it is regulated by labor law public attitude arising on the basis of an employment contract, according to which one subject (employee) undertakes to perform a labor function subject to the rules of internal labor regulations, and the other subject (employer) is obliged to provide work, ensure healthy and safe working conditions and pay for the work of an employee in accordance with his qualifications , the complexity of the work, the quantity and quality of labor.

• mutual rights and obligations of its subjects, defined by the labor contract, labor legislation and the collective agreement (agreement).

The employee is obliged to accurately fulfill his labor function stipulated by the contract, obeying the internal labor regulations of this production, and the employer is obliged to comply with labor legislation and all working conditions of the employee provided for by the labor and collective agreement and labor legislation.

The employment relationship includes whole line the rights and obligations of the parties related to them: in terms of working hours, rest time, remuneration, guarantees and compensations, etc. The volume and nature of labor rights and obligations depend on many factors and are specified in relation to the labor function (specialty, qualification, position) of the employee.

Features of the employment relationship:

1. the subjects of an employment relationship are the employee and the employer;
2. an employment relationship has a complex set of rights and obligations of its subjects: each of them acts in relation to the other both as an obligated and as an authorized person, and also bears not one, but several duties;
3. despite the complex composition of rights and obligations, the employment relationship is unified;
4. the continuing nature of the employment relationship (the rights and obligations of subjects are implemented not by one-time actions, but systematically, by performing those actions that are necessary during the established working hours).

However, persons who have entered into civil law contracts (personal contract, assignments, paid services, author's contract, etc.) can also engage in labor activity.

Characteristic features of an employment relationship (delimiting it from related, including civil law, relations):

1. The personal nature of the rights and obligations of an employee who is obliged by his work to participate in the production or other activities of the employer (the employee does not have the right to represent another employee instead of himself or entrust his work to another, etc., such a restriction is not in the contract).
2. The employee is obliged to perform the labor function stipulated by the employment contract, and not a separate (separate) individually-specific task by a certain date, which is typical for a civil law contract.
3. The performance by the employee of his labor function is carried out in the conditions of collective (cooperative) labor, which is connected with the inclusion of the employee in the collective (staff) of workers with the ensuing need to obey the established rules of internal labor regulations.
4. The reimbursable nature of the labor relationship is manifested in the employer's response to the performance of the labor function - in the issuance of the appropriate wages (payment is made for the worker systematically carried out during the established working hours of the living labor expended, and not for the specific result of materialized (past) labor, as in civil law relation).
5. The right of each of the subjects to terminate the employment contract without any sanctions, but in compliance with the established procedure.

Employment legal personality is the ability of a given person (natural or legal) recognized by labor legislation to be the subject of labor and directly related legal relations, to have and exercise labor rights and obligations and be responsible for labor offenses. In labor law, unlike, for example, civil law, legal personality includes three elements:

• labor capacity - the legally recognized ability to have labor rights and obligations;
• labor capacity - the ability, in accordance with labor legislation, to personally acquire and exercise labor rights and obligations by one's actions;
• labor delinquency - the ability recognized by labor legislation to be responsible for labor offenses.

In labor law, these three legal abilities are inseparable and arise in the subject of law at the same time - from the moment of the beginning of labor activity (in civil law, for example, the emergence of legal capacity and full legal capacity have a gap in time), so we are talking about a single labor legal capacity in labor law, t .e. legal personality.

Labor personality is characterized by two criteria:

1. age;
2. strong-willed.

It is important to know that, unlike civil legal capacity that arises from the moment of birth, labor legal personality is timed by law to reach a certain age, namely, at 16 years old. In certain cases and in the manner provided for by the Labor Code of the Russian Federation, an employment contract may be concluded with persons under the age of 16 (Article 63 of the Labor Code of the Russian Federation of the Labor Code of the Russian Federation) in the following cases:

• receiving the main general education or continuation of the development of the program of basic general education in a form other than full-time;
• leaving a general education institution in accordance with federal law.

In these cases, an employment contract may be concluded by persons who have reached the age of 15 years.

Persons studying in educational institutions who have reached the age of 14 may be employed:

1. to perform light work that does not disrupt the learning process,
2. in my spare time, but
3. obligatory with the consent of one of the parents (custodian) and the guardianship and guardianship authority.

The specified age criterion of labor legal personality is connected with the fact that from that time on a person becomes capable of systematic work, which is enshrined in law (Article 63 of the Labor Code of the Russian Federation). This article also establishes that in cinematography, theater and concert organizations, circuses, with the consent of one of the parents (guardian) and the permission of the guardianship and guardianship authority, it is allowed to conclude an employment contract to participate in the creation and (or) performance (exhibition) of works without harm to health and moral development with persons under 14 years of age. In this case, the employment contract is signed on behalf of the employee by the parent (guardian), but with the permission of the guardianship and guardianship authority.

Based on those physiological characteristics the organism of a teenager and the need for their moral education, the use of labor by persons under the age of 18 is prohibited:

• at work in hazardous and hazardous conditions labor;
• at work, the performance of which may harm their health and moral development (gambling, work in nightclubs, bars, cabarets, etc. (Article 265 of the Labor Code of the Russian Federation).

It should be borne in mind that, along with age, labor legal personality is characterized by a volitional criterion, which is associated with the actual ability of a person to work. It is considered as physical and mental abilities for work, which, however, cannot limit equal labor personality for all.

Labor personality is characterized by legislation as equal for all citizens (individuals). This means that citizens are free to exercise their rights, and natural differences between them, such as gender, age, nationality or property status and other circumstances, should not be discriminatory in the labor sphere.

Discrimination is prohibited by the Constitution of the Russian Federation, as is forced labor, which is reflected in the Labor Code of the Russian Federation at the level of the basic principles of labor law (Article 2).

The legal status of the subject of labor law is his legal status defined by labor law. It consists of the following elements.

Employment relationship - voluntary legal connection an employee with an employer about his work, as a result of which the employee undertakes to perform a certain labor function in the specified specialty, qualification, position for this enterprise with subordination to the internal labor regulations, and the employer undertakes to provide work, create the necessary working conditions and pay for labor in accordance with the labor contribution of the employee.

Labor relations arise as a result of the conclusion of an employment contract.

Features of labor relations:

1. These are legal relations on the use of labor of citizens, foreign citizens and stateless persons as employees. The subjects (parties) are the employee and the employer.
2. They have a complex set of rights and obligations of subjects, that is, each of the subjects has rights and obligations, and bears not one, but several obligations. The employer is responsible either himself or through his representatives (the head of the organization, his deputies).
3. They cover the whole complex of mutual rights and obligations of subjects, that is, they are uniform legal relations.
4. They are of a continuing nature, that is, the rights and obligations of subjects are realized not by one-time actions, but by systematic or periodic ones.

Signs of labor relations:

1. The rights and obligations of an employee who are obliged only by their labor to participate in the production or other activities of the enterprise are of a personal nature.
2. The employee is obliged to perform a certain predetermined function, that is, work in a certain specialty, qualification or position. Under civil law contracts, an employee performs an individually specific task by a certain date.
3. The performance of the labor function is carried out in the conditions of general labor, which necessitates the subordination of the subjects of the labor relationship to the rules of the internal labor regulations, that is, the inclusion of citizens who have concluded an employment contract in the composition of working organizations (labor collective).
4. Compensatory nature of labor relations, which is expressed in the payment of wages. Payment is made for the living labor expended, carried out by the employee systematically at the set time, and not for the specific result of materialized labor.
5. The subjects of labor relations have the right to terminate legal relations without sanctions, but in the manner prescribed by labor legislation.

The types of labor relations depend on the relevant labor relations and on the type of employment contract underlying the emergence of this employment relationship.

Labor contract.

An employment contract may differ according to the form of ownership, the organizational and legal form of the enterprise, and the types of employment contracts.

There are two specific employment contracts:

1. Student - is concluded with a person whose duties include not the performance of labor functions, but the acquisition of knowledge and skills.

2. An employment contract concluded with part-time workers - this worker consists of two labor relations: at the main place of work and combined.

In order for a person to become an employee, it is necessary to have labor legal personality (a single ability of individuals to be the subject of labor relations). Includes: legal capacity, legal capacity and delictual capacity (the ability to bear responsibility). It is necessary to have an age criterion corresponding to the legislation and a strong-willed criterion.

The peculiarity of labor law is that a person with limited legal capacity may be a subject of labor law if this limitation does not create obstacles to work.

Restriction of employment legal personality may take place in relation to foreign citizens and stateless persons. Labor personality is limited by a court verdict that has entered into legal force (deprivation of the right to hold a certain position or engage in certain activities).

Employment personality allows a person to acquire legal status subject of labor law - a set of rights and obligations of an individual, enshrined in the norms of the TP, guarantees of these rights, liability for failure to perform or improper performance of duties.

Worker - a person who has an employment relationship with an employer on the basis of an employment contract and directly performs a labor function.

Employers- legal entities, individuals endowed by law with the right to conclude, amend or terminate an employment contract.

An employment relationship is based on the free will of its participant, the legal expression of which is an employment contract - a bilateral legal act. This is the basis for most employment relationships. In some cases, the conclusion of an employment contract is preceded by a competition or elections.

Signs of an employment contract:

• A voluntary agreement of the parties, that is, a mutual expression of will aimed at establishing labor relations between the employee and the employer.
• The main responsibilities of the parties are determined.
• The parties are the employee and the employer, and the employer does not depend on the form of ownership.

By concluding an employment contract, the employee undertakes to perform a certain labor function, that is, to work in one or more professions, specialties or positions, according to qualifications, and also to obey the internal labor regulations.

The employee is included in the staff or labor collective of the enterprise and acquires the right to participate in the management of this organization. The employer is obliged to organize the work of the employee, to ensure healthy, safe working conditions. An employee who has concluded an employment contract is subject to compulsory social insurance.

The necessary conditions:

• Direct - are fully included in the employment contract, are determined by agreement of the parties.
• Derivatives - provided for by laws, other central and local regulations.

The conditions that are developed by the parties themselves - direct - are divided into several groups:

- obligatory (required)- without them, the employment contract is not considered concluded and labor relations cannot arise:

a) information about the employee and the employer. Data about the employer include: information regarding its name and legal form; location information legal entity or entrepreneur (legal address). Information about the employee: full name; location; passport data and others. This information indicates that the citizen agrees to work for this particular employer;

b) place of work indicating structural unit in which the employee is hired. Place of work - a specific organization with which an employment contract has been concluded, located in a certain area on the day the employment contract is concluded. The place of work does not cover the entire territory, but the part where the organization is located, since organizations can create branches in other settlements, as a result of which the place of work will not coincide with the location of the enterprise. The location of a legal entity is the locality in which its permanent body is located. The location of the entrepreneur is the locality where he was registered. The place of work should be distinguished from the workplace. Workplace- the place of permanent or temporary stay of the employee in the process of labor activity. It can be a specific workshop, department, equipment;

c) labor function - work in one or more professions, specialties, positions, indicating qualifications in accordance with the staff list of the employer, functions, duties job description. The distinction between the concepts of profession and specialty is due to the division of labor;

d) basic rights and obligations of the employee and the employer;

e) the term of the employment contract. This condition is mandatory only for fixed-term employment contracts. If it is concluded for a certain period, then this must be recorded in the employment contract. Labor Code The Republic of Belarus establishes the maximum duration of a fixed-term employment contract - up to 5 years. Employment contracts may be concluded for an indefinite period ( permanent job- work that does not involve completion at a certain time due to its nature) and for a certain period: no more than 5 years - a fixed-term employment contract; during the execution of a certain work; for the duration of the duties of a temporarily absent employee; for the duration of seasonal work; temporary employment contract;

f) the mode of work and rest, if it differs from general rules established by the employer;

g) terms of remuneration, including the amount tariff rate or official salary of the employee, additional payments, incentives;

- additional- they can be included by agreement of the parties; there is no exhaustive list of these conditions

- optional- optional conditions include, for example, the establishment probationary period. An employment contract is concluded with a preliminary test in order to verify the compliance of the employee with the assigned work. It is concluded only by agreement of the parties. The condition of the preliminary test must be fixed in the employment contract, otherwise the employment contract is considered ordinary. The term of the preliminary test is no more than 3 months. The test is one time. The employee has the right to terminate the employment contract concluded with the condition of a preliminary test three days before its expiration by own will. The employer may also terminate such an agreement on the expiration date of the preliminary test period. If the employment contract has not been terminated before the expiration of the probation period, then the employee is considered to have passed the probation, and termination of the employment contract will be possible only on general grounds.

Labor relations of workers, their types.

The concept of labor relations

The employment relationship is legal relationship between the employee and the employer in the process of fulfilling the duties assigned to him by the employee.

Employment relationship- this is a voluntary legal relationship between an employee and an employer, in which both parties in the production process are subject to the rules of internal labor regulations, labor legislation, collective and individual labor contracts.

Relationships themselves have specific features:

1. proceed in conditions of subordination to the rules of internal labor regulations;

2. the worker, as a rule, is included in the labor collective.

Subjects of labor relations

Participants (subjects) of labor relations are employees and employers. The subject of an employment relationship can be a foreigner (both as an employee and as a representative of the employer), and an individual citizen who accepts an employee as a housekeeper, personal driver, gardener, etc. can also be an employer.

Objects of labor relations

The object of the labor relationship is the skills, abilities, abilities of the employee, which he proposes to use to the employer and which are of interest to the employer in the process of labor organized by him. It is for them that the employer is willing to pay wages. In market relations, the price of a worker, like any commodity, is determined by supply and demand.

There are the following types of labor relations:

1. Relationships on employment issues. Strictly speaking, these relations are not yet labor relations. They precede the emergence of labor relations and create an appropriate legal framework for them. They determine the nature of future labor relations. At this stage, there is no employee and employer yet. Here there is an individual who enters into a relationship with the administration of the enterprise regarding the conclusion of an employment contract.

2.Immediate labor Relations. All subjects of labor law (main and additional) operate here.

3. Relationships related to the termination of the employment contract and the dismissal of employees.

4. Relations arising in connection with the reinstatement of an employee at work. These relations arise if the employment contract was terminated at the initiative of the employer and the employee who disagreed with such a decision applied to the court with a claim for reinstatement at work.

2.Method of labor law: concept, types, features.

labor law method- a set of legal means used in the regulation of labor and other relations directly related to them.

A feature of the method of labor law is the combination in it unity(establishment of the same standards for workers with various conditions labor) and differentiation(set different norms according to different working conditions) legal regulation.

Another feature of the labor law method is specifics of protection of labor rights of participants labor relations.

- Supervision and control for compliance with labor legislation and labor protection are carried out by special government bodies independent of employers, which is a certain guarantee of their objectivity

- public control carried out by trade unions and inspections under their jurisdiction.

Finally, the protection of labor rights is also carried out labor authorities(individual or collective) disputes. Consideration procedure labor disputes significantly different from the procedure for consideration of ordinary civil cases.