Basics of Russian Law. Textbook

Оглавление

Preface

Part 1 Basics of the theory of state and law

Part 2. Basics of constitutional law

Part 3. Basics of civil law

Part 4. Basics of labour law

Part 5. Basics of administrative law

Part 6. Basics of criminal law

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Part 4. Basics of labour law

Chapter 20. Labour Law and its Actors

20.1. Definition, Subject Matter, and Method of Labour Law

Labour law is a branch of Russian law which is a sum total of norms governing labour relations arising out of hired labour and established through a labour contract, as well as other relations directly connected with labour.

Pursuant to Article 1 of the Labour Code of the Russian Federation, the primary goals of labour legislation are as follows:

— the institution of state guarantees of labour rights and liberties of citizens;

— the creation of favorable labour conditions;

— the protection of rights and interests of employees and employers.

The tasks of labour law as a branch of law include:

— the creation of the necessary legal conditions to achieve the optimal coordination of interests of the parties of labour relations and interests of the state;

— the legal governance of legal relations and other relations directly connected to them.

The relations comprising the subject matter of labour law include the relations in:

— organisation of labour and labour management;

— employment;

— professional training, retraining, and professional development of employees at the given employer;

— social partnership in the labour sphere;

— participation of employees and trade unions in the establishment of working conditions and application of labour legislation;

— material liability of employers and employees in the labour sphere;

— state and trade union control over observation of the labour legislation;

— settlement of labour disputes;

— mandatory social insurance in the cases envisaged by federal laws.

Thus, the subject matter of labour law includes the sum total of social relations arising in the course of application of labour.

At the same time, some labour relations are governed by civil law (e.g., labour relations connected with authorship contracts, work contracts, freight contracts, etc.), as well as by administrative law (e.g., labour of certain categories of citizens — military men, employees of the Ministry of Internal Affairs of the Russian Federation, etc.).

The method of labour law is the sum total of legal measures, ways, and practices which facilitate the governance of labour relations and those directly connected to them.

The method of labour law has common and branch-specific features.

As well as many other branches of Russian law, the method of labour law is a certain combination of permissions, prescriptions, and prohibitions — i.e., of imperative and dispositive principles. It can be characterised with a mix of public law (established and controlled by the state) and private law (based on the equality of parties and their free will) regulation of labour relations.

However, the method of labour law possesses its specific features based on the following:

1. balance of federal, regional, municipal, and local governance of labour relations. The authorities on all of the levels indicated, as well as the employer himself, adopt legal acts aimed at the governance of labour relations, which cannot deteriorate the employee’s position as compared to acts of higher authority;

2. application of normative (federal, regional, municipal, and local) and contractual governance. The contractual manner of regulation of labour relations lies in the conclusion of individual labour contract with an employee, as well as in the conclusion of collective labour contract between the representatives of employees and those of employers;

3. possibility of governance of legal relations through the employees’ representatives and organisation (professional unions and other entitled entities). For instance, pursuant to Article 372 of the Labour Code of the Russian Federation, the employers (in cases expressly stipulated by law or by collective agreement) direct the draft local normative acts to the professional unions for approval);

4. possibility of recovery of the infringed right with the assistance of special bodies which settle labour disputes. In particular, there is a certain procedure of resolving individual labour disputes — addressing the commission on labour disputes.

The system of labour law as a branch of law represents the division of labour law norms into general and special.

The general part of labour law contains norms which anchor the aims, principles, and tasks of the legal governance of the labour sphere, rights and obligations of employees and employers, mechanisms of social partnership in the labour sphere, etc.

The special part of labour law contains norms which govern the conclusion and termination of a labour contract, working time and rest time, remuneration, labour discipline, employees’ material liability, etc.

20.2. Principles of Labour Law

Principles of labour law are the primary fundamentals and ideas reflecting the specifics of legal governance of the labour sphere.

These fundamentals are based on the commonly recognised principles and norms of international law, the Constitution of the Russian Federation, and current normative acts. They reflect the political and economic level of the society’s development and operate as landmarks for labour law evolution.

Pursuant to Article 2 of the Labour Code of the Russian Federation, these principles include:

— freedom of work, including the right to work which is chosen freely by everybody, or to which everybody agrees freely;

— right to be master of one’s own abilities to work, to choose a profession and occupation;

— prohibition of forced labour and discrimination in the labour sphere;

— protection against unemployment and assistance in employment;

— ensuring the rights of each employee to fair working conditions, including working conditions meeting the safety and hygiene requirements;

— right to leisure, including restriction of working time, providing daily rest, days-off, holidays, and paid annual leave;

— equality of rights and opportunities of employees;

— ensuring the right of each employee to the timely payment in full of fair earnings providing for a humane existence of the employee himself and his family at no less than the minimum amount of labour remuneration fixed by federal law;

— ensuring equality of opportunities of employees without any discrimination in promotion taking into account labour productivity, qualification, and tenure in the occupation, as well as in professional training, retraining, and professional development;

— ensuring the right of employees and employers to unite to protect their rights and interests, including the right of employees to create trade unions and to join them, and the right of employers to create their unions and to join them;

— ensuring the right of employees to take part in the management of the organisation in the form envisaged by legislation;

— combination of state and contractual regulation of labour relations and other relations directly associated with them;

— social partnership, including the right of employees, employers, and their associations in contractual regulation of labour relations and other relations directly associated with them;

— obligatory compensation for the harm incurred by the employee due to his execution of labour duties;

— institution of state guarantees to ensure the rights of employees and employers, implementation of state enforcement of and control over their observation;

— ensuring the right of everyone to protection of their labour rights and liberties by the state, including judicial protection;

— ensuring the right to resolution of individual and collective labour disputes, including the right to strike according to the procedure specified by the Labour Code of the Russian Federation and other federal laws;

— obligation of the parties to a labour contract to observe the terms of the concluded contract, including the right of the employer to demand that the employees execute their labour duties and treat carefully the property of the employer and the right of the employees to demand that the employer observe their duties with respect to employees, labour legislation, and other acts containing labour legislation norms;

— ensuring the rights of the representatives of trade unions to implement trade union control over observation of labour legislation and other acts containing labour legislation norms;

— ensuring the right of employees to protect their dignity in the course of work;

— ensuring the right for obligatory social insurance of employees.

The fundamentals of governance of labour relations also include the prohibition of discrimination in the labour sphere, providing everyone’s right to equal opportunities to implement their labour rights. For instance, Article 3 of the Labour Code of the Russian Federation sets forth that nobody may be subject to restrictions in labour rights and liberties or gain any advantages depending on sex, race, skin color, nationality, language, origin, property, family, social status and occupational position, and other circumstances not pertaining to business qualities of the employee.

The primary prohibition which corresponds to the principle of freedom of labour is the prohibition of forced labour (Article 4 of Labour Code of the Russian Federation).

Forced labour is the carrying out of work under the threat of punishment (violence), including:

— to maintain labour discipline;

— as retribution for participation in a strike or as other punishment;

— as a means of discrimination based on racial, social, national, or religious affiliation.

Pursuant to Article 4 of the Labour Code of the Russian Federation, forced work also includes work which an employee is forced to carry out under a threat of punishment (duress), while, in accordance with legislation, he is entitled to refuse to perform such work.

The above and other principles of Russian labour law are closely connected to or directly follow from the fundamental international documents, including:

1. The Universal Declaration of Human Rights (adopted by the General Assembly of the United Nations in 1948);

2. The International Covenant on Economic, Social, and Cultural Rights (adopted by the General Assembly of the United Nations in 1966);

3. The Convention on the Elimination of All Forms of Discrimination against Women of 1979;

4. The International labour Organisation Declaration on Fundamental Principles and Rights at Work of 1998.

20.3. Labour Relations

Pursuant to Article 15 of the Labour Code of the Russian Federation, labour relations means relations based on an agreement between an employee and an employer on the performance in person by the employee for payment of a labour function, on the employee’s compliance with the in-house employee rules, provided that the employer ensures the working conditions envisaged by the labour legislation, collective agreement, labour agreement, and other documents.

Basically, this Article describes labour legal relations, i.e. the strictly labour and the relations associated with them, which are governed by labour law norms.

The specific feature of governance of these legal relations lies in the fact that the lawmaker does not provide for conclusion of civil law contracts on labour relations between the employee and the employer.

Generally, labour relations arise between the employee and the employer based on a labour contract as a result of the following:

— being elected to a position;

— being elected to an appropriate position on a contest basis;

— being assigned to or endorsed for a position;

— being sent to work by competent authorities;

— court decision on conclusion of a labour contract;

— acknowledgment of personal work relations based on a civil law contract as labour relations.

Labour relations between an employee and an employer also emerge on the ground of actual admittance of the employee to work on the consent or instructions of the employer, even if a labour contract had not been properly drawn up. Such relations may be deemed labour relations by the person using hired work or by court at the application of the contractor.

The parties to a labour contract are the employee and the employer (Article 20 of the Labour Code of the Russian Federation).

Employee is a person who has entered into labour relations with the employer.

Generally, a person may enter into labour relations as an employee if he has reached the age of sixteen, but there are a number of exceptions to this rule.

Pursuant to Article 63 of the Labour Code of the Russian Federation, persons who are receiving general education and have reached the age of fifteen may enter into a labour contract for the purpose of carrying out light work which does not harm their health. A labour contract may be concluded with a student who has reached the age of fourteen at the consent of one of the parents (guardian) or at the permission of a guardianship body, for the purpose of performing light work that does not harm the employee’s health and interfere with the educational process.

In organisations of cinematography, theatre, theatrical and concert organisations, circuses, it is also permitted to enter into a labour contract with persons who have not reached the age of fourteen, with the consent of one of the parents (guardian) or permission of a guardianship body, for participation in the creation and performance of pieces of art, provided that such do not damage health and moral development of the employee. In that case, the permission of the trusteeship and guardianship body shall include an indication of the duration of the daily working hours and other conditions under which the work may be performed.

Employers may be represented by legal entities and capable persons of age, as well as minors upon obtaining full legal capacity (Article 20 of the Labour Code of the Russian Federation).

Minors aged from fourteen to eighteen may enter into labour contracts with employees, provided that they have independent income, at their legal representatives’ (parents, guardians) written consent.

Labour relations are characterised with the following features:

— they are of personal nature (the employee is obliged to perform the work function personally);

— they are gratuitous (work is performed for payment) and continuous;

— they are of mutual character, i.e. the rights and obligations belong to each of the parties.

The above employees’ and employers’ mutual rights comprise the content of labour relations.

The primary rights of an employee include his rights to:

— conclusion, modification, and termination of labour contract;

— being provided with work stipulated by the labour contract;

— a work place corresponding to state labour protection regulations and terms envisaged by the collective agreement;

— timely and full payment of earnings according to his qualification, labour complexity, quantity, and quality of the fulfilled work;

Malko A.V., Subochev V.V., Fedorov G.V. Basics of Russian Law. Textbook

Malko A.V., Subochev V.V., Fedorov G.V. Basics of Russian Law. Textbook

This textbook presents in accessible form information necessary for comprehensive understanding of the basics of Russian law: theory of state and law, constitutional, civil, labour, administrative and criminal law.<br /> It is based on the Russian legislation in force and the market practice, combining theoretical material, classical and modern doctrinal works, as well as the basics of the current legislation. The above will allow readers to obtain practically-oriented knowledge.<br /> This textbook is intended for lawstudents, legalscholars, legal practitioners, as well as everyone who is interested in the basics of Russian law.

Внимание! Авторские права на книгу "Basics of Russian Law. Textbook" (Malko A.V., Subochev V.V., Fedorov G.V.) охраняются законодательством!