Held in Russian Federation military reform not only has a significant impact on the military-technical and organizational issues of the activities of the Armed Forces, but also entails change legal status a significant number of participants in the relevant legal relations. This is manifested, among other things, in an increase in the number civilian personnel, who carries out his labor activity in the Armed Forces, increasing his importance. This service is implemented within the framework of not military disciplinary, but labor and civil law relations. The specificity of these relationships requires their careful study.

The civilian personnel of the Armed Forces of the Russian Federation is the personnel of the Armed Forces, staffed by both citizens of Russia and foreign citizens who have concluded work or professional service activities in certain staffing positions and specialties in parts of the Armed Forces of the Russian Federation in order to ensure that they fulfill the tasks assigned to them tasks. The civilian personnel of the army has a special legal status and consists of persons employed under an employment contract, as well as federal civil servants whose professional service activities under an employment contract relate to the federal state civil service.

Legal status of employees in the ranks of the Armed Forces of the Russian Federation

It can be said that the legal status of civilian personnel in the Armed Forces has a dual character: on the one hand, civilian personnel in the army, all the rights and obligations that other employees have as subjects of labor law are inherent; on the other hand, the realization of these rights and obligations is connected with certain features of the army service. By virtue of constitutional norms, civilian personnel in the Armed Forces have the right to freely dispose of their abilities for work, as well as the right to work in conditions that meet the requirements of safety and hygiene, and to remuneration for work without any discrimination (paragraphs 1 and 3 of Article 37 of the Constitution of the Russian Federation). Civilian personnel also have the right to rest, which includes the length of working time guaranteed by federal law, weekends and holidays, annual paid leave (paragraph 5 of Article 37 of the Constitution of the Russian Federation).

It is important that everyone, including civilian personnel in the Russian army, is guaranteed social security by age, in case of illness, disability, loss of a breadwinner, for raising children and in other cases established by law (clause 1 of article 39 of the constitution of the Russian Federation). The features of the implementation of these rights in relation to civilian personnel in the Armed Forces are determined by the specifics of the tasks that the army is called upon to solve, and the features of any activity related to the defense of the country arising from them. Legal regulation of the labor of civilian personnel in the Armed Forces is carried out by federal labor legislation, federal legislation on public service, as well as the legislation of the constituent entities of the Federation. A number of aspects are regulated by subordinate regulations: decrees of the President of Russia, decrees of the government of the Russian Federation, orders of the Minister of Defense.

Literature on labor law in the Russian Armed Forces

1. Decree of the Government of the Russian Federation of December 30, 2000 N 1027 (as amended on October 2, 2009) "On streamlining the conditions for remuneration of employees of individual federal executive bodies performing tasks in the field of defense, law enforcement and state security" // SZ RF. 01/08/2001, N 2, art. 179.

2. Determination of the Constitutional Court of the Russian Federation of January 15, 2009 N 188-O-P "At the request of the 5th garrison military court to verify the constitutionality of paragraph 2 of Article 10 of the Federal Law "On labor pensions in the Russian Federation" // Bulletin of the Constitutional Court of the Russian Federation. - 2009. - N 4.

3. Kovalev V.I. Protection labor rights civilian personnel of budgetary institutions of the Ministry of Defense of the Russian Federation, military units (organizations) upon dismissal // Law in the Armed Forces. - 2009. - N 6.

4. Kovalev V.I. Topical issues of civilian personnel of the Armed Forces of the Russian Federation // Law in the Armed Forces. - 2011. - N 4.

General provisions of the labor law of the Russian Federation

Labor law occupies one of the leading places in the system of modern Russian law. It regulates social relations that develop in the process of functioning of the labor market, organization and use of hired labor. Taken together, these relations constitute the main elements (core) of the subject matter of Russian labor law.

The norms of labor law govern the relations of an employee with an employer that arise in the field of employment of an employee in a particular organization of the employer. Among the social relations that collectively make up the subject of labor law, the main place is occupied by labor relations, which develop both in the very process of producing material and spiritual goods, and in the service sector, where the labor of workers organized on the basis of social cooperation of labor is used. and the main content of labor relations is work, i.e. activities related to the direct realization of the ability of citizens to work (labor force). As a result, the main subject of labor law is social relations regarding the application and organization of living labor or work.

Modern Method Russia's labor law can be characterized by four main features: first, a combination of centralized and local regulation of social relations that are the subject of this branch of law; secondly, a combination of contractual, recommendatory and imperative methods of regulation; thirdly, participation in the regulation of social relations of labor collectives and trade union bodies; fourthly, the originality of ways to protect labor rights and ensure obligations.

The sources of labor law are legal acts and separate norms that are designed to regulate relations that are part of the subject of labor law. Sources of labor law have features. First, they are published different levels legal regulation of labor: federal, regional, local and local. Secondly, the sources of labor law can be adopted not only by state bodies, but also on their behalf by local governments, subjects of labor law. Thirdly, the sources of labor law reflect both general and special forms of labor regulation. Fourthly, the sources of labor law can be applied not only on the basis of the legal force given to them, but also on the principle of reflecting the interests of workers in them. The normative act establishing additional benefits for employees is also applied in the case when such benefits are not defined in the higher-level regulatory legal acts.

The main sources of labor law are the Constitution of the Russian Federation, Labor Code Russian Federation, decrees of the President of the Russian Federation, resolutions of the Government of the Russian Federation, collective agreements between employees of organizations and employers and local regulations containing labor law norms. The sources of labor law include conventions international organization labor (ILO). Currently, 57 ratified ILO Conventions must be applied on the territory of Russia.

The system of labor law in Russia is a set of legal norms that form a single substantive whole (industry) broken down into separate relatively independent structural formations (institutions), as well as other stable communities of norms that have a more fractional structural certainty (pedagogical institutions).

The most characteristic structural divisions of the labor law system are institutions. They include a less extensive set of legal norms than the industry, which differ in the subject matter of regulation, i.e. features of certain types of social relations or individual parties (elements) of any particular type of social relations.

The Labor Code of the Russian Federation (TRK RF) contains 14 sections, each of which contains separate institutions of labor law:

1) general provisions;

2) social partnership in the sphere of labor;

3) an employment contract;

4) work time;

5) rest time;

6) payment and labor rationing;

7) guarantees and compensations;

8) labor schedule, labor discipline;

9) professional training, retraining and advanced training of employees;

10) labor protection;

11) liability of the parties to the employment contract;

12) features of labor regulation certain categories workers;

13) protection of labor rights and freedoms, consideration and resolution of labor disputes, liability for violation of labor legislation and other acts containing labor law norms;

14) final provisions.

The principles of labor law are understood as the fundamental and guiding principles of the legal regulation of social relations related to the functioning of the labor market, the use and organization of hired labor, enshrined in the current legislation. In addition to the general legal principles for all branches of law, which are enshrined in the Constitution of the Russian Federation, labor law has its own intra-branch legal principles. These include:

a) freedom of labor and the prohibition of forced labor in labor relations;

b) unemployment protection and employment assistance;

c) ensuring fair working conditions;

d) equality of rights and opportunities for employees;

e) ensuring timely, fair and decent remuneration;

e) payment equal to wages for work of equal value;

g) prohibition of discrimination in the regulation of labor relations;

h) the presence of associations for the protection of rights and interests in the process of labor activity;

i) participation of employees in the management of the organization;

j) a combination of state and contractual regulation labor relations;

k) the obligation to compensate the employee for harm caused in the course of labor activity;

l) ensuring the protection of labor rights;

m) trade union control over compliance with labor legislation;

o) protection of labor rights in ways not prohibited by law.

Subjects of labor law - participants in labor and other closely related relations that are part of the subject of this industry, which, in accordance with the requirements of the law, are able to perform actions that give rise to legal consequences. The subjects of labor law include the employer, employee, trade union.

The objectives of labor legislation are to establish state guarantees of labor rights and freedoms of citizens, to create favorable conditions labor, protection of the rights and interests of employees and employers.

The main tasks of labor legislation are to create the necessary legal conditions to achieve optimal coordination of the interests of the parties to labor relations, the interests of the state, as well as the legal regulation of labor relations and other directly related relations:

On the organization of labor and labor management;

Employment this employer;

Vocational training, retraining and advanced training of employees directly from this employer;

Social partnership, collective bargaining, conclusion of collective agreements and agreements;

Participation of employees and trade unions in the establishment of working conditions and the application of labor legislation in cases provided for by law;

Material liability of employers and employees in the sphere of labor;

Supervision and control, including trade union control, over compliance with labor legislation (including labor protection legislation) and other regulatory legal acts containing labor law norms;

Resolution of labor disputes;

Mandatory social insurance in cases stipulated by federal laws.

Everyone has equal opportunities to exercise their labor rights. No one can be limited in labor rights and freedoms or receive any advantages, regardless of gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence, attitude to religion, political convictions, membership or non-membership of public associations, as well as from other circumstances not related to business qualities worker.

Forced labor, i.e. performance of work under the threat of any punishment (violent influence) is prohibited.

Labor relations and social partnership in the sphere of labor

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

The parties to labor relations are the employee and the employer.

An employee is an individual who has entered into an employment relationship with an employer. Persons who have reached the age of 16 have the right to enter into labor relations as employees.

Employer - an individual or legal entity (organization) that has entered into labor relations with an employee.

Labor relations arise between the employee and the employer on the basis of an employment contract as a result of:

Elections to office;

Elections by competition to fill the relevant position;

Appointment to a position or approval in a position;

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

Court decision on the conclusion of an employment contract.

The content of the employment relationship is the rights and obligations of the parties to the employment relationship. Moreover, these rights and obligations are of a corresponding nature, i.e. The right of the employee corresponds to the corresponding obligation of the employer to implement it. Conversely, the right of the employer in labor relations corresponds to the obligation of the employee to comply with the legal orders of the representatives of the employer.

An employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure the working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, the collective agreement, agreements, local regulations and this agreement , in a timely manner and full size pay wages to the employee, and the employee undertakes to personally perform the labor function determined by this agreement, to comply with the internal labor regulations applicable to this employer.

1) surname, name, patronymic of the employee and the name of the employer (surname, name, patronymic of the employer - individual) who have entered into an employment contract;

2) information about the documents proving the identity of the employee and the employer - an individual;

3) taxpayer identification number (for employers, with the exception of employers - individuals who are not individual entrepreneurs);

4) information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is endowed with the appropriate authority;

5) the place and date of conclusion of the employment contract.

The following conditions are mandatory for inclusion in an employment contract:

a) the place of work, and in the case when the employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another locality, the place of work indicating the separate structural unit and its location;

b) labor function (work according to the position in accordance with the staff list, profession, specialty, indicating qualifications; specific view work assigned to the worker). If, in accordance with federal laws, the provision of compensations and benefits or the presence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the names of these positions, professions or specialties and qualification requirements for them must correspond to the names and requirements specified in the qualification reference books approved by the in the manner established by the Government of the Russian Federation;

c) the date of commencement of work, and in the case when a fixed-term employment contract is concluded, also the term of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with the Labor Code of the Russian Federation or other federal law;

d) terms of remuneration, including the amount tariff rate or salary ( official salary) employee, additional payments, allowances and incentive payments;

e) the mode of working time and rest time (if for this employee it differs from the general rules in force for this employer);

f) compensation for hard work and work with harmful and (or) dangerous working conditions, if the employee is hired in appropriate conditions, indicating the characteristics of working conditions at the workplace;

g) conditions that determine, if necessary, the nature of the work (mobile, traveling, on the road, other);

h) a condition on compulsory social insurance of an employee in accordance with the Labor Code of the Russian Federation and other federal laws;

i) other conditions in cases stipulated by labor legislation and other regulations containing labor law norms.

The employment contract may provide for additional conditions that do not worsen the position of the employee in comparison with the established labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations.

Employment contracts may be concluded:

For undefined period;

For a fixed period of not more than five years (fixed-term employment contract).

A fixed-term employment contract is concluded when labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation, namely in the cases provided for in Part 1 of Art. 59 of the Labor Code of the Russian Federation. In the cases provided for by Part 2 of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract may be concluded by agreement of its parties without taking into account the nature of the work to be done and the conditions for its implementation.

If the employment contract does not specify the term of its validity, then it is considered concluded for an indefinite period. The employment contract comes into force from the day it is signed by the employee and the employer, unless otherwise provided by federal laws, other regulatory legal acts of the Russian Federation or the employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative.

The grounds for termination of an employment contract are:

Agreement of the parties (Article 78 of the Labor Code of the Russian Federation);

Expiration of the term of the employment contract (Article 79 of the Labor Code of the Russian Federation), with the exception of cases when the employment relationship actually continues and none of the parties has demanded its termination;

Termination of the employment contract at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation);

Termination of the employment contract at the initiative of the employer (Articles 71 and 81 of the Labor Code of the Russian Federation);

Transfer of an employee at his request or with his consent to work for another employer or transfer to elective work (position);

Refusal of the employee to continue work in connection with a change in the owner of the property of the organization, with a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75 of the Labor Code of the Russian Federation);

Refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties (part 4 of article 74 of the Labor Code of the Russian Federation);

Refusal of the employee to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation, or the absence of an appropriate job for the employer (parts, 3 and 4 of article 73 of the Labor Code of the Russian Federation);

Refusal of an employee to transfer to work in another locality together with the employer (part 1 of article 721 of the Labor Code of the Russian Federation);

Circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation);

Violation of the rules established by the Labor Code of the Russian Federation or other federal law for concluding an employment contract, if this violation excludes the possibility of continuing work (Article 84 of the Labor Code of the Russian Federation).

An employment contract may also be terminated for other reasons.

Social partnership in the sphere of labor is a system of relationships between employees (representatives of employees), employers (representatives of employers), state authorities, local governments, aimed at ensuring the coordination of interests of employees and employers on the regulation of labor relations and other relations directly related to them. The parties to the social partnership are employees and employers represented by duly authorized representatives.

Social partnership is carried out in the following forms:

Collective negotiations on the preparation and conclusion of collective agreements;

Mutual consultations (negotiations) on the issues of regulating labor relations and other relations directly related to them, ensuring guarantees of labor rights of employees and improving labor legislation and other regulatory legal acts containing labor law norms;

Participation of employees, their representatives in the management of the organization;

Participation of representatives of employees and employers in the resolution of labor disputes.

A collective agreement is a legal act that regulates social and labor relations in an organization and is concluded by employees and the employer represented by their representatives. Employee representatives in social partnership are trade unions and their associations, other trade union organizations provided for by the charters of all-Russian, interregional trade unions, or other representatives elected by employees. The interests of the employer in collective bargaining, the conclusion or amendment of a collective agreement, as well as in the consideration and resolution of collective labor disputes between employees and the employer, are represented by the head of the organization, the employer - an individual entrepreneur (personally) or persons authorized by them.

The conclusion of a collective agreement is preceded by collective negotiations, during which a draft collective agreement is developed. The content and structure of the collective agreement are determined by its parties, i.e. representatives having duly executed powers to conclude a collective agreement on behalf of employees of the organization, branch, representative office and employer.

The collective agreement is concluded for a period not exceeding three years. Control over its implementation is carried out by the parties to these labor contracts, their representatives, and the relevant labor authorities.

For violation of the law on collective agreements, administrative responsibility.

Working hours. Employee wages

The concept of working time is used in various branches of knowledge. For example, in the economic sciences, working time is considered as periods during which work is performed, no breaks are included in this concept, they are qualified as losses of working time. For labor law, only the legal concept of working time matters.

In accordance with it, working time is the time during which the employee, in accordance with the internal labor regulations and the terms of the employment contract, must perform labor duties, as well as other periods that, according to the Labor Code of the Russian Federation, other federal laws and other legal acts of the Russian Federation, relate to working time .

From this definition it can be seen that, in accordance with the legal concept, working hours include not only periods of direct performance by the employee of labor duties, but also other periods included in working hours under current legislation. So, as follows from legal concept, working time also includes individual production losses, recognized as such from the point of view of economic sciences.

Normal working hours may not exceed 40 hours per week.

The employer is obliged to keep records of the time actually worked by each employee. The fulfillment of this obligation involves the appointment of authorized representatives of the employer, who must keep records of the working time of each employee of the organization. The employer is obliged to ensure such daily accounting.

The burden of rest is the time during which the employee is free from the performance of labor duties and which he can use at his own discretion.

The types of rest periods are:

1) breaks during the working day (shift);

2) daily (between shifts) rest;

3) days off (weekly uninterrupted rest);

4) non-working holidays;

5) holidays.

The listed types of rest time also differ in duration. Providing rest time is the obligation of the employer, which corresponds to the right of employees to receive rest time of each type in cases provided for by law.

Salary (official salary) - a fixed amount of remuneration of an employee for the performance of labor (official) duties of a certain complexity for a calendar month, excluding compensation, incentives and social payments.

Salary (remuneration of an employee) - remuneration for work depending on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed, as well as compensation payments (surcharges and allowances of a compensatory nature, including for work in conditions that deviate from normal, work in special climatic conditions and in territories exposed to radioactive contamination, other compensation payments) and incentive payments (additional payments and allowances of a stimulating nature, bonuses and other incentive payments).

In accordance with Art. 132 of the Labor Code of the Russian Federation, the salary of each employee depends on his qualifications, the complexity of the work he performs, the quantity and quality of labor expended, and is not limited to a maximum amount. This rule lists the circumstances, the use of which in determining the amount of wages is not recognized as discrimination, in connection with which the employer has the right to set different wages for employees, indicating one of the listed circumstances, the proof of which allows the employer's decision to be recognized as lawful and justified. The signs of race, skin color, sex, age, nationality, language, origin, property and social status, place of residence, attitude to religion, political opinions, membership or non-membership in public associations are among those that are discriminatory when establishing and changing the amount of wages.

The tariff system of wages is used to determine the wages of employees public sector. This system serves as a guideline for determining the wages of employees of organizations that do not receive budget funding.

Tariff rate - a fixed amount of remuneration of an employee for fulfilling a labor norm of a certain complexity (qualification) per unit of time without taking into account compensatory, incentive and social payments.

Base salary (basic official salary), basic wage rate - minimum salary (official salary), wage rate of an employee of a state or municipal institution engaged in professional activities in the profession of a worker or an employee's position, included in the relevant professional qualification group, excluding compensation, incentive and social benefits.

Wages are paid in cash in the currency of the Russian Federation, i.е. in rubles. In accordance with a collective or labor agreement, upon a written application of an employee, remuneration is possible in other forms that do not contradict the legislation of the Russian Federation and international treaties of the Russian Federation. Consequently, wages may, in the cases established by law and by agreement of the parties to the employment contract, be paid in non-monetary form.

When paying wages, the employer is obliged to notify the employee in writing of the components of wages due to him for the relevant period, the amount and grounds for the deductions made, as well as the total amount of money to be paid. Wages are paid to the employee, as a rule, at the place of performance of work by him or transferred to the bank account indicated by the employee on the terms stipulated by the collective or labor agreement.

Wages must be paid at least every half a month on the days established by the internal labor regulations of the organization, the collective agreement, the employment contract.

Non-payment of wages or its late payment is a violation of labor legislation, for which administrative liability may follow. In accordance with Art. 236 of the Labor Code of the Russian Federation, the employer may be liable in the form of paying a certain percentage for each day of delay in wages. For non-payment (out of selfish or other personal interest) for more than two months of wages and other payments established by law, the head of the organization, regardless of the form of ownership, establishes criminal liability (Article 1451 of the Criminal Code of the Russian Federation).

Guarantees and compensation

Guarantees - the means, methods and conditions by which the implementation of the rights granted to employees in the field of social and labor relations is ensured. Thus, as the purpose of applying the guarantees established by law, the exercise of the rights of employees is indicated. This means that guarantees perform a security function in relation to the rights established by employees.

In addition to the general guarantees provided for by the Labor Code of the Russian Federation (guarantees for hiring, transferring to another job, wages, etc.), employees are provided with guarantees and compensation in the following cases:

When sent on business trips;

When moving to work in another area;

When performing state or public duties;

When combining work with education;

In case of forced termination of work through no fault of the employee;

When granting annual paid leave;

In some cases, termination of the employment contract;

Due to the delay due to the fault of the employer in issuing a work book upon dismissal of an employee;

Other cases provided for by the Labor Code of the Russian Federation and other federal laws.

Compensation - cash payments established in order to reimburse employees for the costs associated with the performance of labor or other duties provided for by the Labor Code of the Russian Federation and other federal laws.

According to the current legislation, the following circumstances can be distinguished that characterize compensation as a legal concept.

Firstly, compensations are compensatory in nature, they must reimburse the employee for certain costs. These costs can be compensated to the employee both for the past time and in the case of future expenses, for example, to pay for travel to the place business trip and vice versa, while the guarantees provided to employees are not of a compensatory nature. Guarantees are designed to ensure the implementation of labor rights of employees. Compensations are aimed at reimbursement of expenses incurred by employees in the performance of established duties, as well as in the exercise of certain rights, in particular the right to training.

Secondly, the application of the concept of "compensation" involves proving the existence of a direct connection between the incurred or expected costs of the employee and the performance of labor or other duties provided for by federal law during the time allotted for the performance of labor duties. In other words, the connection of the employee’s incurred or future expenses with the performance of specific labor duties or other duties provided for by federal law, for example, for the witness’s travel to the place of trial, must be proven. The proof of these circumstances allows the employee to demand compensation for the costs incurred by him.

Thirdly, the employee's incurred or future expenses must be incurred with the knowledge or consent of the authorized representative of the employer or on the grounds provided for by federal law. employer at the expense own funds can compensate the employee for any incurred and future expenses, thus recognizing them as compensable. In this case, the position of the employee in comparison with the position established by the current legislation improves, which is fully consistent with the legal principles of regulation in the field of labor.

When providing guarantees and compensations, the corresponding payments are made at the expense of the employer. Bodies and organizations in whose interests the employee performs state or public duties (juries, donors, members of election commissions, etc.) make payments to the employee in the manner and on the terms provided for by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation. In these cases, the employer releases the employee from the main work for the period of performance of state or public duties.

Labor discipline. Occupational Safety and Health. Professional training and retraining

Labor discipline is obligatory obedience for all employees to the rules of conduct determined in accordance with the Labor Code of the Russian Federation, other federal laws, a collective agreement, agreements, local regulations, an employment contract.

The employer is obliged, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, to create the conditions necessary for employees to comply with labor discipline.

One of the local regulations that form the basis of lawful behavior in the course of labor activity is the internal labor regulations. These rules, in accordance with the Labor Code of the Russian Federation and other federal laws, regulate the procedure for hiring and dismissing employees, the basic rights, duties and responsibilities of the parties to an employment contract, the working hours, rest periods, incentives and penalties applied to employees, as well as other issues of regulating labor relations in this employer.

The internal labor regulations are approved by the employer, taking into account the opinion of the representative body of employees and are usually an annex to the collective agreement. They should not contain conditions that worsen the position of the employee in comparison with the situation established by law. The employer, taking into account the opinion of the trade union body of the organization at his own expense, may provide in these rules for additional benefits for employees in comparison with the benefits defined by law.

The employer may encourage employees who conscientiously perform their labor duties. Key incentives include:

Declaration of gratitude;

Issuance of an award;

Awarding a valuable gift;

Awarding an honorary diploma;

Submission to the title of the best in the profession.

This list of incentives is not exhaustive.

Unlike disciplinary sanctions, any representative of the employer can apply incentive measures. Authorized representative of the employer, i.e. a person enjoying the right to hire and dismiss employees may delegate this right by issuing an appropriate order (instruction) to other representatives of the administration.

Disciplinary liability is a special type of legal liability, its application is always associated with the performance of labor or official duties. A feature of disciplinary liability is the imposition of penalties established by law, which make up its content, as a rule, by the subject of labor relations, namely the employer, in connection with which disciplinary liability is one of the manifestations of the employer's power in relation to the employee who has concluded an employment contract with him.

Bringing an employee who has committed a disciplinary offense to disciplinary liability (imposing a disciplinary sanction) is the right of authorized representatives of the employer, who, in accordance with the law and constituent documents, are empowered to hire and dismiss employees. An employee who has committed a disciplinary offense is obliged to endure the unfavorable consequences established by law. Therefore, the authorized representative of the employer has the right to release the employee from such a duty. In this case, the position of the employee in comparison with the position provided for by law is improving, therefore, such an exemption should be recognized as complying with the requirements of labor legislation.

For committing a disciplinary offense, i.e. failure to perform or improper performance by the employee due to his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:

Comment;

Rebuke;

Dismissal for appropriate reasons.

When applied disciplinary action the gravity of the misconduct committed and the circumstances under which it was committed must be taken into account.

If within a year from the date of application of the disciplinary sanction, the employee is not subjected to a new disciplinary sanction, then he is considered not to have such a sanction. The employer, before the expiration of a year from the date of application of a disciplinary sanction, has the right to remove it from the employee on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees.

Occupational safety is a system for preserving the life and health of workers in the course of their work, including legal, socio-economic, organizational and technical, sanitary and hygienic, medical and preventive, rehabilitation and other measures.

BASICS OF LABOR LAW

1. Concept, subject, method, sources, principles and functions of labor law

Labor law is a branch of law that regulates the procedure for the emergence, operation and termination of labor relations, determines the regime for the joint work of employees, establishes a measure of labor protection and the procedure for resolving labor disputes. The norms of labor law regulate not technological processes, but social relations of subjects of labor relations, that is, social forms of labor. From this point of view, the work of a scientist, inventor, writer and other individual forms of labor are not subject to regulation by labor law, since they are performed outside of social relations. Labor law regulates social relations that arise in connection with the application and realization of the ability to work.

The subject of labor law is labor relations that arise when an employee uses his ability to work in the course of labor activity, as well as other social relations related to labor.

These include:

relationship between employee and employer;

organizational and managerial relations of the trade union body, representing the interests of the labor collective, with the administration of the enterprise regarding the improvement of working conditions, life and rest of workers;

relations on the redistribution of labor force;

relations regarding employment and employment;

relations related to compensation for material damage;

procedural relations arising in the resolution of labor disputes.

The method of labor law is complex in nature, as it combines elements of dispositive and imperative influence on the subjects of labor relations.

The main features of this method can be represented as follows:

Citizen involvement in social production goes not with the help of a directive prescription, but on the basis of free interest, that is, by providing participants in labor relations with contractual freedom. The voluntary and contractual nature of labor relations is enshrined in Art. 37 of the Constitution of the Russian Federation.

Labor relations, as well as civil law, are inherent in the legal equality of the parties. However, labor relations are also associated with power-administrative relations between the employee and the governing bodies of the enterprise, which creates a situation of inequality of the parties and brings labor relations closer to administrative ones. At the same time, labor relations are built to a much greater extent on a civil law basis, and the legal inequality of the parties to labor relations is manifested not so much in the dependence of the employee on the administration of the enterprise, but in state guarantees for protecting the interests of workers before the employer.

Labor law is characterized by a combination of centralized and local regulation. In local acts adopted by agreement of the parties, the working day is determined, the time for rest (break) is established, vacation schedules and other issues that regulate in detail the working conditions of employees are agreed. It is important that the norms of local acts do not contradict federal legislation.

The specificity of the methods of labor law is also manifested in the nature of the sanctions applied as a means of fulfilling the obligations of the parties to labor relations. The application of sanctions and the protection of the rights of employees are carried out out of court, with the exception of issues related to the reinstatement of employees. Measures of responsibility under labor law have a property and disciplinary nature. These include a remark, a reprimand, deprivation of bonus payment and other adverse consequences up to dismissal or dismissal from office.

Sources of labor law are acts containing legal norms through which labor relations are regulated. Sources of labor law are divided into federal and local.

Federal sources include:

the Constitution of the Russian Federation, which is the legal basis of labor legislation;

Federal laws containing labor law norms;

regulatory decrees of the President of the Russian Federation aimed at regulating labor relations;

Decrees of the Government of the Russian Federation regulating relations that are the subject of labor law;

normative acts of ministries, departments and committees of the Russian Federation;

resolutions of the plenum of the Supreme Court of the Russian Federation on controversial issues of labor relations.

It should be noted that the acts of the plenum of the Supreme Court of the Russian Federation are sources of law in themselves. They cannot introduce new norms or change old ones. But as a result of the generalization judicial practice The Supreme Court of the Russian Federation may come to the conclusion that it is necessary to amend the current legislation.

Local sources of labor law include:

regulatory legal acts of the constituent entities of the Russian Federation;

lawmaking of local governments;

internal labor regulations established at the enterprise;

collective agreements and agreements;

employment contracts;

orders and orders of heads of enterprises and institutions.

A special place among the sources of labor law is occupied by the acts of the International Labor Organization (ILO). The Russian Federation has recognized the operation of 52 ILO conventions on its territory.

Principles of labor law. Labor law principles include:

the principle of free disposal by citizens of their abilities to work;

the principle of equal pay for equal work without any discrimination;

the principle of inadmissibility of the deterioration of the situation of workers below the level provided for by the current labor legislation.

The functions of labor law are determined by the tasks facing labor legislation. These tasks are set out in Art. 1 of the Labor Code of the Russian Federation. The tasks set in this article are mostly declarative. Based on the tasks set by the Labor Code of the Russian Federation, two functions of labor law can be distinguished: regulatory and facilitative.

The regulatory function extends its effect to labor and related relations.

The facilitating function is that labor law does not directly fulfill it, but together with other social institutions(legal and non-legal). Labor law is designed to promote the growth of labor productivity, improve the quality of work, increase the efficiency of material production, raise the material and cultural standard of living of the population, and strengthen labor discipline. To this we can add that labor law contributes to the creation of a labor market to meet the needs of production.

2. Labor relations

Labor relations constitute the main content of labor law. In fact, these are social relations regulated by the norms of labor law.

The subjects of labor relations are divided into main and additional. Such a division is based on the degree of influence of a particular subject on the emergence, operation and termination of labor relations.

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

Additional subjects are the council of the labor collective, commissions for labor disputes, trade unions, employment services, legal services at the enterprise and other structures that ensure the normal functioning of production. Additional subjects can act as the main ones when they directly determine the fate of the emergence, operation or termination of labor relations.

The employment relationship is based on an agreement by virtue of which one party (employee) is obliged to perform work in a certain specialty, qualification or position subject to internal regulations, and the enterprise (employer) undertakes to pay wages to the employee and ensure working conditions provided for by law, the collective agreement and by agreement of the parties. Outwardly, the labor relation looks like a type of civil law contractual relationship. However, within the framework of civil law relations, the performer is obliged to provide the result of labor stipulated by the contract, that is, to properly fulfill the obligation. Issues related to the nature and measure of labor, the mode and schedule of the working day, the ways of fulfilling the obligations assumed, that is, the process of labor itself, and not just its result, fall within the competence of the labor relationship, which distinguishes it from civil legal relationship.

Types of labor relations.

Allocate the following types labor relations:

Employment relations. 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.

direct labor relations. All subjects of labor law (main and additional) operate here.

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

Relationships arising in connection with the reinstatement of an employee. 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

Rights and obligations of subjects. One of the components of the labor relationship are the rights and obligations of subjects.

The main rights of employees are:

the right to working conditions that meet the requirements of safety and hygiene;

the right (in agreement with the employer) to establish working hours and working hours;

the right to remuneration for one's work depending on the personal labor contribution and the quality of work;

the right to join trade unions;

the right to annual paid leave;

the right to compensation for damage caused by damage to health in connection with work;

the right to social security in old age and disability;

the right to judicial protection of their labor rights.

The duties and rights of employees are defined in Art. 21 of the Labor Code of the Russian Federation and are regulated in detail by the internal labor regulations and additional instructions.

The employee is obliged:

conscientiously perform labor duties;

observe labor discipline;

take care of the property of the enterprise, institution, organization;

comply with established labor standards.

The basic rights and obligations of the employer are also enshrined in Art. 22 of the Labor Code of the Russian Federation.

3. Collective agreements and agreements

A collective agreement is a legal act that regulates relations between an employee and an employer (Chapter 7, Articles 40-44 of the Labor Code of the Russian Federation). The Law of the Russian Federation "On Collective Contracts and Agreements" dated March 11, 1992 No. 2490 - 1 (as amended on May 1, 1999) establishes that the initiative of one of the parties, which submits a draft collective agreement to the other party, is sufficient to conclude a collective agreement. In case of disagreement between the parties, collective negotiations are held between them. Disputable questions about the content of the collective agreement are resolved out of court and without recourse to the commission on labor disputes. This is one of the features that distinguish collective agreements from individual labor agreements.

To conduct collective negotiations and prepare a draft collective agreement, the parties form a commission of their authorized representatives on an equal basis. The authority of representatives is determined from the content of a special legal act or by virtue of official duties one person or another. The authorized representatives of the labor collective, as a rule, are the chairman of the trade union committee of the enterprise and the chairman of the council of the labor collective. Authorized representatives of the employer may be the head of the enterprise or other official, or any representative of the administration of the enterprise, acting on the basis of a power of attorney.

If the parties could not reach an agreement, a protocol of disagreements is drawn up, and a conciliation commission is formed within three days, or the parties turn to a mediator chosen by mutual agreement.

Plenipotentiary representatives of the parties involved in the work of the conciliation commission are released from their main work for the duration of the negotiations, with the preservation of their average earnings for a period of not more than three months during the year. Authorized representatives of the labor collective participating in collective bargaining cannot be subjected to disciplinary action, transferred to another job or dismissed.

The protocol of disagreements must be considered within seven days. In case of refusal to accept a collective agreement, the employer bears administrative responsibility (a fine of up to ten times the minimum wage for each day after the expiration of the period provided for the conclusion of the agreement). An employer guilty of failure to fulfill obligations under a collective agreement is subject to a fine of up to one hundred times the minimum wage. As an extreme measure of protest against the failure of the employer to comply with the provisions of the collective agreement, employees have the right to declare a strike, having previously notified the employer of it no later than 14 days before its start. The decision to strike must be taken at general meeting staff of the enterprise at least 2/3 of the votes of the total number of employees.

A collective agreement agreed with the employer must be adopted at a general meeting of employees by a simple majority of votes. The collective agreement comes into force from the moment of its registration with the Ministry of Labor and Social Development of the Russian Federation. At large enterprises, it is possible to adopt several collective agreements (for example, for each workshop, etc.).

The collective agreement is concluded for a period of one to three years. Although in practice the collective agreement is valid until the adoption of a new collective agreement. When the owner of the enterprise is changed, if the term of the collective agreement has not yet expired, this agreement is valid for three months, after which it must be replaced with a new one. If the new owner agrees to keep the text of the old collective agreement, then a consent protocol must be drawn up. In case of liquidation of the enterprise, the collective agreement is valid for the entire period of the liquidation procedure. The parties that signed the collective agreement must annually report on its implementation at the general meeting of the labor collective.

In addition to collective agreements, the law provides for the conclusion of agreements.

Agreements can be of several types: general; industry (tariff); special.

The General Agreement is concluded at the federal level between the All-Russian Association of Workers and the Government of the Russian Federation. General agreements include agreements concluded between republican associations of trade unions or associations of workers and executive bodies of constituent entities of the Russian Federation. The General Agreement establishes general principles socio-economic policy of the state in the field of labor relations.

An industry agreement is concluded between the trade unions of a specific industry and the relevant ministry (department, committee). It is aimed at the socio-economic development of a particular industry, improving working conditions and raising wages (for example, for workers in the coal, machine-building industry, etc.), as well as providing social guarantees for workers in a particular industry.

A special agreement is concluded at the territorial level between trade unions of enterprises and territorial executive authorities. The agreement includes a provision on remuneration, working conditions and labor protection, work and rest regime and other significant issues of labor relations.

4. Labor contract. The order of conclusion and termination

As already noted, direct labor relations begin from the moment the employment contract is concluded.

An employment contract (Chapter 10, Articles 56-65 of the Labor Code of the Russian Federation) is a voluntary agreement between an employee and an employer regarding essential working conditions. In this sense, an employment contract is an act of transfer by an employee of his ability to work, skills, skills, qualifications for temporary use to the employer. An employment contract establishes a legal relationship between the subjects of labor law and legislates the rights and obligations of the parties that have entered into the contract.

The characteristic features of an employment contract are the subordination of the employee who signed this contract to the internal labor regulations and the obligation of the employee to perform work on an ongoing basis, and not in the order of performing individual tasks or one-time assignments, which is typical for civil law contracts, for example, a work contract or an agency contract.

Depending on the form of conclusion, labor is divided into three varieties: an agreement on joint labor activity; employment contract; Contract.

An agreement on joint labor activity is concluded between the participants (founders) of business partnerships and companies. The specificity of these organizational and legal forms of legal entities is that their participants, on the basis of combining their contributions to the share or authorized capital, are joint (shared or common) owners and at the same time carry out labor activities in accordance with the terms of the memorandum of association. The exception is contributors (limited partners) - members of limited partnerships and shareholders of open joint-stock companies. When concluding an agreement on joint labor activity, for example, the founders of a closed joint-stock company establish, at their discretion, the necessary conditions for normal production or business activities. An agreement on joint labor activity should be distinguished from a civil law agreement of a simple partnership, that is, an agreement on joint activities(Article 1041 of the Civil Code of the Russian Federation). This agreement is concluded between the participants of the partnership on the joint conduct of business (financial, economic and other types of entrepreneurial activities), including issues related to the disposal of the joint property of the participants, the disposal of the authorized (share) capital, etc.

The employment contract is concluded between the founders legal entity and hired workers. Employees are not owners of the enterprise, they do not have the right to participate in the distribution of profits and to participate in the management of the enterprise. With the consent of the founders, i.e. owners of the enterprise, employees can contribute to the authorized capital and claim part of the profits. An employee is only entitled to purchase preferred shares of the enterprise (ie shares that do not give voting rights).

Employment contracts can be concluded (Article 58 of the Labor Code of the Russian Federation) for:

indefinite term;

a fixed period of not more than five years (fixed-term employment contract);

time to complete a particular task.

An employment contract for the duration of a certain work is a type of fixed-term employment contract. A fixed-term employment contract is concluded (Article 59 of the Labor Code of the Russian Federation):

In cases where the employment relationship cannot be established for a specific period. Such a situation may arise taking into account the nature of the work ahead (for example, in connection with the need to replace a woman on parental leave), or taking into account the conditions of the work (for example, when working in extreme conditions), or taking into account the interest of the employee ( for example, the wife of a serviceman, upon entering a job, may enter into a fixed-term employment contract, taking into account the expected transfer of her husband to another locality for further service).

In cases directly provided for by law. Such cases include:

conclusion of an employment contract with an official of the enterprise;

conclusion of a contract with a teacher of a higher educational institution;

conclusion of an employment contract for work in the Far North and in areas equated to them (this contract is concluded for a period of not more than three years, and on the islands of the Arctic Ocean - for a period of not more than two years);

conclusion of an employment contract with a person accepted as a substitute for an elective position in a state body.

An important feature of a fixed-term employment contract is that when the term of a fixed-term employment contract has expired and none of the parties has demanded termination of the employment contract, its effect is considered extended for an indefinite period (Article 58 of the Labor Code of the Russian Federation).

the full name of the enterprise in which the employee's labor activity should be carried out;

an indication of the specialty and qualifications of the employee, as well as to what position he is accepted;

the rights and obligations of the parties, i.e. all functions of the employee and the employer (it is desirable to indicate an exhaustive list of work that the employee is obliged to perform, in accordance with Article 57 of the Labor Code of the Russian Federation, the employer does not have the right to require the employee to perform work not stipulated by the contract);

terms of remuneration (category according to the Unified tariff scale- ETS, etc.);

date of conclusion of the employment contract and its expiration date.

In addition to the main conditions, the employment contract may contain additional conditions specifying the obligations of the parties (for example, on the duration additional leave, about working hours and rest time, about various additional payments, etc.).

The text of the employment contract is drawn up in duplicate, sealed with the seal of the enterprise and signed by the parties. One copy is kept directly by the employer, the other by the employee.

The procedure for hiring provides for the personal appearance of a person in the management body of the enterprise, authorized to conclude employment contracts. Employment contracts are concluded only by mutual agreement of the parties. The initial will must come from the person wishing to take the job. This will is expressed by submitting a written statement. The counter will must come from the employer, who is obliged to respond to the written application. If the employer agrees to conclude an employment contract, the employee submits to the registration and accounting body of the enterprise (HR department) an identity card and work book. If an employee is hired for a job that requires special qualifications and the necessary specialty, he must submit a document confirming this qualification and specialty (diploma, certificate, etc.). Persons under the age of 21 must present a medical certificate of health upon employment. This requirement also applies to certain categories of workers whose work is associated with harmful or dangerous conditions (for example, drivers of vehicles, a number of professions in metallurgical production, etc.), or is associated with servicing a large number of people (for example, salespeople food products, catering workers, kindergarten teachers preschool institutions and the like). Article 65 of the Labor Code of the Russian Federation prohibits requiring documents from applicants for work, in addition to those provided for by law. Questionnaires and other materials containing additional information about the employee may be filled out only with the consent of the employee.

Upon submission of these documents and if there is a vacancy, an employment contract must be concluded. Article 68 of the Labor Code of the Russian Federation prohibits unreasonable refusal to hire. Employment is formalized by order of the administration of the enterprise (employer). But regardless of whether the employment was properly executed, the actual admission to work is considered to be the conclusion of an employment contract.

Hiring may be conditioned by passing a test to verify the suitability of the employee for the work assigned to him. The period of testing should not exceed three months, and in agreement with the trade union body - six months (Articles 70, 71 of the Labor Code of the Russian Federation). If, after the expiration of the probationary period, the employee continues to work and none of the parties has demanded termination of the employment relationship, this employee is considered to have passed the probation, and the employment contract is considered concluded for an indefinite period. An employee who has not passed the test is released from work without the consent of the trade union body. However, such a release may be challenged by the employee in court.

When hiring, a probationary period is not established for persons under 18 years of age; young workers after graduating from vocational schools; young specialists after graduating from higher and secondary specialized educational institutions. A probationary period is not established when an employee is transferred to another enterprise and to work in another locality.

Labor books (Article 66 of the Labor Code of the Russian Federation) are maintained for all employees who have worked at the enterprise for more than five days. Employees entering work for the first time, instead of a work book, provide a certificate from the last place of residence. In this case, the work book is filled out no later than a week from the date of employment.

The work book includes:

information about the employee (last name, first name, patronymic, date of birth, place of work, specialty, position, qualification);

date and number of the order for employment, date and number of the order for dismissal, indicating the article of the Labor Code of the Russian Federation;

information about transfer to another job, appointment to a position, assignment of a rank, etc.

The work book has a special place for records of awards, promotions and thanks. These entries are made with the date and number of the order. Penalties are not included in the work book.

Transfer to another job (Articles 72 - 75 of the Labor Code of the Russian Federation) is considered to be a change in one of the necessary conditions of the employment contract.

Labor legislation distinguishes several types of transfers to another job:

transfer at the same enterprise, which takes place if the employee is permanently entrusted with work in another profession, specialty, qualification or position;

transfer to another company;

transfer to work in another area.

These are types of permanent transfers, and they are carried out only with the consent of the employee. In addition to permanent transfers, the employer has the right to temporarily transfer the employee to another job. Temporary transfer does not require employee consent. Temporary transfer to another job is allowed in two cases: due to production needs; due to business downtime.

Production necessity (Article 74 of the Labor Code of the Russian Federation) is understood as the need to prevent or eliminate a natural disaster, industrial accident, as well as the need to replace an absent employee.

Relocation should be distinguished from transfer to another job (Article 72 of the Labor Code of the Russian Federation). The relocation may take place within the same facility or to another facility but in the same area. Any movement does not require the consent of the employee, as it occurs without changing the essential working conditions, that is, the employee moves without changing his position, qualifications and specialty (for example, assigning work on another mechanism or unit within the specialty, qualification or position stipulated by an employment contract).

A situation is not considered a transfer or relocation if, due to changes in the organization of production, essential working conditions change (working hours, wages, changes in grades, job titles, etc.), but the employee continues to work in the same specialty, qualifications , positions. At the same time, the employer is obliged to notify the employee of upcoming changes in essential working conditions no later than two months in advance.

The grounds for termination of an employment contract are set out in Art. 77 of the Labor Code of the Russian Federation. The main form of termination of an employment contract is termination, which, unlike the termination of an employment contract due to its expiration, is an act of will of mutual or unilateral expression of the will of the parties. The expiration of the term (clause 2 of article 58 of the Labor Code of the Russian Federation) is relevant only to fixed-term employment contracts.

An employment contract may be terminated:

by agreement of the parties;

at the initiative of the employee;

at the initiative of the employer;

at the initiative of other competent authorities;

in other cases provided for by law.

Termination of an employment contract by agreement of the parties (Article 78 of the Labor Code of the Russian Federation) is not much different from termination of an employment contract at the initiative of the employee, since in both cases the parties somehow come to an agreement.

Termination of the employment contract at the initiative of the employee is allowed in accordance with Art. 80 of the Labor Code of the Russian Federation. If an employee wishes to terminate an employment contract concluded for an indefinite period, he must notify the employer in writing two weeks in advance. In the application for dismissal of his own free will, the employee must indicate the reason for the dismissal. If the dismissal of an employee is due to the impossibility of continuing his work (enrollment in an educational institution, retirement, etc.), the employment contract is terminated within the period requested by the employee. If there are other reasons for dismissal, the contract is terminated after two weeks, but may be terminated earlier than this period by agreement between the employee and the employer.

A fixed-term employment contract may be terminated by an employee before the expiration of this contract in the event of an illness (disability) of the employee that prevents the fulfillment of the main conditions of the employment contract, or in the event of a violation by the employer of labor legislation, a collective agreement or an employment contract, as well as for other valid reasons.

Termination of the employment contract at the initiative of the employer can be carried out in accordance with Art. 81 of the Labor Code of the Russian Federation. This applies to employment contracts concluded for an indefinite period of time and fixed-term contracts.

They may be terminated for the following reasons:

liquidation of the organization or termination of activities by the employer - an individual;

reduction in the number or staff of employees of the organization;

non-compliance of the employee with the position held or the work performed due to:

state of health in accordance with the medical report;

insufficient qualifications, confirmed by the results of attestation;

change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant);

repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;

a single gross violation of labor duties by an employee:

absenteeism (absence from the workplace without good reason for more than four consecutive hours during the working day);

appearing at work in a state of alcoholic, narcotic or other toxic intoxication;

disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties;

committing at the place of work theft (including small) of another's property, embezzlement of property, its deliberate destruction or damage, established by a court verdict that has entered into legal force or a decision of a body authorized to apply administrative penalties;

violation by the employee of labor protection requirements, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences;

commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give grounds for the loss of confidence in him on the part of the employer;

the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

making an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;

submission by the employee to the employer of false documents or knowingly false information when concluding an employment contract;

termination of access to state secrets, if the work performed requires access to state secrets;

stipulated by the employment contract with the head of the organization, members of the executive body of the organization;

in other cases established by the Labor Code of the Russian Federation and other federal laws.

An employment contract may also be terminated on the grounds provided for in Art. 83, 84 of the Labor Code of the Russian Federation.

Termination of an employment contract due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation):

employee call for military service or sending him to an alternative civilian service that replaces it;

reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court;

non-election to office;

condemnation of an employee to a punishment that precludes continuation previous work, in accordance with the verdict of the court, which has entered into force;

recognition of an employee as completely disabled in accordance with a medical report;

death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as dead or missing;

the onset of emergency circumstances preventing the continuation of labor relations (military actions, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a public authority of the corresponding subject of the Russian Federation.

Termination of an employment contract on the basis specified in paragraph 2 of article 83 of the Labor Code of the Russian Federation is allowed if it is impossible to transfer the employee with his consent to another job.

An employment contract is terminated due to a violation of the rules for its conclusion established by the Labor Code of the Russian Federation or other federal law (clause 11, article 77), if the violation of these rules excludes the possibility of continuing work in the following cases:

conclusion of an employment contract in violation of a court verdict depriving a specific person from holding certain positions or engaging in certain activities;

conclusion of an employment contract for the performance of work that is contraindicated for this person for health reasons in accordance with a medical report;

the absence of an appropriate document on education, if the performance of work requires special knowledge in accordance with a federal law or other regulatory legal act;

in other cases stipulated by federal law.

Termination of an employment contract in the cases specified in paragraph 1 of Art. 77 is made if it is impossible to transfer the employee from his written consent to another job available to the employer.

In the event of termination of the employment contract in accordance with paragraph 11 of Art. 77, the employer pays the employee a severance pay in the amount of the average monthly earnings, if the violation of the rules for concluding an employment contract is not the fault of the employee.

5. Legal regulation of essential working conditions

Legal regulation of essential working conditions determines the content of labor relations. One of the most important working conditions is the establishment of working hours, i.e. the time during which the employee must perform the duties assigned to him.

The Labor Code of the Russian Federation establishes three types of working hours:

normal working hours;

reduced working hours;

part-time work.

Normal working hours cannot exceed 40 hours per week (Article 91 of the Labor Code of the Russian Federation). The distribution of this amount of time by day of the week is governed by the agreement of the parties. With a five-day working week, the length of the working day should not exceed eight hours, and with a six-day working week, it cannot exceed seven hours. On the eve of holidays, the duration of the working day, both with a five-day and with a six-day working week, is reduced by one hour, and on the eve of days off, with a six-day working week, the working day should not exceed six hours.

When working at night, the working time is reduced by one hour. This rule does not apply to workers employed in enterprises with a continuous production cycle, as well as to workers working on a six-day work week. In continuously operating industries, where, due to the working conditions, the daily or weekly working hours cannot be observed, the summation of the accounting of working hours is allowed so that the working time for the accounting period does not exceed the normal number of working hours.

Reduced hours of work in accordance with Art. 92 of the Labor Code of the Russian Federation is established:

for employees aged 16 to 18 - no more than 36 hours per week;

for employees aged 14 to 15 years, as well as for students aged 14 to 15 years during the holidays - no more than 24 hours a week, and during the study period - no more than half of the established norm (the same rule applies to persons in between the ages of 16 and 18 if they work during their free time from school);

for workers employed in jobs with harmful working conditions - no more than 36 hours per week.

For employees working on reduced working hours, on the eve of holidays and weekends, the length of working time does not change. Employees under the age of 18 cannot be involved in night work (from 22:00 to 06:00). The amount of wages paid to employees who are provided with reduced working hours must not be less than the amount of wages paid to full-time employees of the same enterprise.

Part-time work is established by agreement between the employee and the employer. In accordance with Art. 93 of the Labor Code of the Russian Federation, an employer is not entitled to refuse a request for the opportunity to work part-time for the following categories of workers: a) pregnant women; b) women with children under the age of 14, and if the child is disabled - up to 16 years; c) persons caring for a sick family member. In these cases, wages are paid in proportion to the hours worked or depending on the output.

Engaging employees to work in excess of the normal working hours established by law, i.e. Overtime work is generally not allowed. Only in exceptional cases (in agreement with the trade union body of the enterprise) the employer can involve the employee in overtime work, the time of which should not exceed four hours a day. In accordance with Art. 98 of the Labor Code of the Russian Federation, such cases include: the performance of work necessary for the defense of the country; to prevent a natural disaster or industrial accident; performance of socially necessary works on water supply, gas supply, heating, lighting, transport, communications; non-appearance of the replacement employee if the work does not allow a break; other emergency circumstances provided for by law. Article 99 of the Labor Code of the Russian Federation gives a list of categories of workers who should not be allowed to work overtime. This applies to women with children aged 3 to 14; employees under the age of 18; workers who study on the job. Women with children between the ages of 3 and 14, as well as disabled people, may be involved in overtime work only with their consent. Payment for overtime work for the first two hours is made not less than one and a half times, and in the following hours - not less than twice the amount. Compensation for overtime work is not allowed. For the normal reproduction of their ability to work, the employee is provided with a legally fixed rest time.

Rest time (Articles 106 - 128 of the Labor Code of the Russian Federation) is the time during which the employee must be released from work duties and which he can use at his own discretion.

The following types of rest time are legally established (Article 107 of the Labor Code of the Russian Federation):

breaks during the working day;

weekly rest (weekends and holidays);

annual regular holidays;

leave without pay.

Breaks during the working day (Articles 108, 109 of the Labor Code of the Russian Federation) are divided into breaks for rest and meals, as well as additional breaks.

A break for rest and meals is not included in working hours and should not exceed two hours in duration. As a rule, such a break is granted four hours after the start of work. The beginning and end of the break are determined by the parties to the employment relationship and are fixed by the internal labor regulations.

Additional breaks are established for certain categories of workers. For example, for workers working outdoors in winter, an additional break is allowed to warm up indoors.

Weekly rest must be at least 42 hours continuously. This is what holidays are for. It is generally accepted that these days are Saturday and Sunday. At enterprises with a continuous production cycle, days off are provided on different days of the week according to shift schedules. Work on weekends is prohibited, except as provided for in Art. 111 of the Labor Code of the Russian Federation. Holidays are specified in Art. 112 of the Labor Code of the Russian Federation. Work on public holidays is paid at double the rate or compensated by the provision of another day of rest. If a weekend coincides with a holiday, the day off is transferred to the next working day after the holiday.

Regular annual vacations (Articles 114, 115 of the Labor Code of the Russian Federation) are provided to all employees, regardless of their place of work.

Annual holidays are divided into: annual paid holidays; additional annual leave; leave without pay.

Annual paid leave is granted to employees after six months of continuous work. Employees under 18 years of age and military personnel transferred to the reserve and sent to work in an organized recruitment manner, paid leave may be granted at the request of such employees after three months of continuous work. The same right is given to women before maternity leave or immediately after it. The order in which vacations are granted is established by the employer in agreement with the trade union body. The duration of annual paid leave must be at least 28 calendar days. The period of illness or temporary disability is not included in the number of vacation days. The employee has the right to refuse annual paid leave and transfer it to next year. At the same time, it is prohibited not to use annual leave for two consecutive years. It is also prohibited to replace vacation with monetary compensation, except in cases of dismissal of an employee who did not use vacation.

Additional annual leave (Articles 116 - 119 of the Labor Code of the Russian Federation) is provided in addition to the main paid leave. Additional vacations are provided for the following categories of employees: employed in jobs with harmful working conditions; with irregular working hours; having a long work experience in one enterprise; employed in the work of the Far North and areas equated to them. Additional vacations are granted simultaneously with the main vacation, and the number of days of additional vacation must be added to the days of the main vacation. However, the mechanism of this summation has not yet been sufficiently developed.

Leave without pay (Article 128 of the Labor Code of the Russian Federation) is granted with the consent of the employer at the request of the employee, in which he must state the reasons that prompted him to go on short leave without pay. It could be family circumstances or some other good reason. By agreement of the parties, this leave can be worked out in the subsequent period.

6. Labor discipline

Labor discipline (Chapter 9, Articles 189 - 195 of the Labor Code of the Russian Federation) is a certain procedure for the behavior of workers in the production process. It is developed by methods of persuasion, the material interest of the employee, as well as methods of material incentives for conscientious work. In accordance with Article.Article. 189, 190 of the Labor Code of the Russian Federation, employees are obliged to work honestly and conscientiously, to comply with the employer's orders in a timely and accurate manner, to comply with technological discipline, labor protection, safety and industrial sanitation requirements, and to take care of the property of the enterprise.

For the exemplary performance of labor duties, incentive measures are established for employees (Article 191 of the Labor Code of the Russian Federation). They can be both moral (announcing gratitude, awarding a certificate of honor, etc.) and material in nature (issuing an award, awarding valuable gifts). For special labor merits, employees are presented for awarding orders, medals, and honorary titles.

For violation of labor discipline, the employer may apply the following disciplinary measures: reprimand, reprimand, dismissal (Article 192 of the Labor Code of the Russian Federation).

The legislation on disciplinary liability, charters and regulations on discipline may provide for other disciplinary sanctions. When imposing a disciplinary sanction, the severity of the misconduct committed, the circumstances under which it was committed, previous work, and the behavior of the employee must be taken into account.

To impose a disciplinary sanction, the employer must require the employee to provide a written explanation of the reason for the violation of labor duties. For each misconduct, only one disciplinary sanction may be applied and no later than one month from the date of its discovery (not counting the time the employee was sick or on vacation). If within a year from the date of application of the disciplinary action, the employee is not subjected to a new penalty, then he is considered not subjected to it at all. During the period of validity of the disciplinary sanction, incentive measures are not applied to the employee. The employer has the right, instead of applying a disciplinary sanction, to refer the issue of violation of labor discipline to the consideration of the labor collective. An order to apply a disciplinary sanction, indicating the motives for its application, is announced to the employee against receipt.

A disciplinary sanction may be lifted before the expiration of the year by the body or official who applied it on their own initiative, at the request of the immediate supervisor or the work collective, if the employee has not committed a new misconduct and has shown himself to be a conscientious employee. A disciplinary sanction may be appealed in the manner prescribed by law.

7. Procedure for resolving labor disputes

The procedure for resolving labor disputes. The Constitution of the Russian Federation (clause 4, article 37) recognizes the right to individual and collective labor disputes using the methods of their resolution established by federal law, including one such as a strike. Labor disputes should be understood as disagreements arising over the application of labor legislation, the establishment or change of working conditions.

Disputes can be caused by:

lack of awareness of employers and employees in labor legislation, as a result of which it is applied incorrectly;

the imperfection of the legislation itself in rapidly changing external circumstances;

disagreements between employees and the employer on the establishment of new or changes in existing working conditions, for example, the introduction of new production standards;

disagreements between the employer and the trade union.

Individual labor disputes (Articles 381 - 397 of the Labor Code of the Russian Federation) arising between an employee and an employer regarding the application of legislation and other labor regulations, a collective agreement and other labor agreements, as well as the terms of an employment contract, are considered by labor dispute commissions or courts of general jurisdiction.

The Commission on Labor Disputes (CTC) is elected by the general meeting of the labor collective and the employer. Candidates who received the majority of votes and for whom more than half of those present at the meeting voted are considered elected to the commission. The procedure for election, the number and composition of the CCC, the term of its powers are determined by the general meeting of the labor collective. The Commission elects a chairman and a secretary from among its members.

A labor dispute is subject to consideration in the CCC if the employee, independently or with the participation of the trade union organization, has not settled the differences during direct negotiations with the employer. An employee can apply to the CCC within three months from the day when he learned or should have learned about the violation of his right. In turn, the commission is obliged to consider the dispute within ten days from the date of filing the application. An employee's application received by the KTS is subject to mandatory registration. The dispute is considered in the presence of the employee who submitted the application and the representative of the employer. Consideration of the dispute in the absence of the employee is allowed only upon his written application. If the employee does not appear at the meeting of the commission, the consideration of the application is postponed. In the event of a second non-attendance of an employee at a meeting of the commission without a good reason, the commission may decide to withdraw this application from consideration.

The KTS has the right to summon witnesses to the meeting, to invite specialists, representatives of the trade union. At the request of the commission, the employer is obliged to provide the necessary calculations and documents. The CCC makes decisions by a majority vote of the committee members present at the meeting. A member of the commission who does not agree with the decision of the majority is obliged to sign the protocol of the meeting of the commission, but has the right to express his dissenting opinion in it. Copies of the decision of the commission are handed over to the employee and the employer within three days from the date of the decision.

The decision of the CCC is subject to execution by the employer within three days after the expiration of ten days provided for appeal. If the employer fails to comply with the decision of the commission within the prescribed period, the employee is issued a certificate having the force of a writ of execution. On the basis of a certificate issued by the commission and presented no later than three months from the date of its receipt by the court, the bailiff enforces the decision of the CCC by force.

Labor disputes are considered in courts of general jurisdiction in the following cases (Articles 391 - 397 of the Labor Code of the Russian Federation):

if the employee or the employer does not agree with the decision of the CCC;

at the request of the prosecutor, if the decision of the CCC contradicts the law;

if at the enterprise the commissions on labor disputes are not assembled or have not been created;

at the request of the employee on reinstatement, on changing the date and wording of the reason for dismissal, on payment for the time of forced absenteeism or performing low-paid work;

at the request of the employer on compensation by the employee for material damage caused to the enterprise.

The courts also consider disputes on refusal to hire persons invited by way of transfer from another enterprise, as well as persons with whom the employer, in accordance with the law, was obliged to conclude an employment contract.

In a claim for reinstatement at work, an employee has the right to demand:

immediate reinstatement at work;

payment for forced absenteeism (even if the plaintiff does not require this in the statement of claim, the court is obliged to raise this issue with the defendant);

compensation for moral damage (courts may satisfy claims for compensation for moral damage in an amount proportional to the value of the claim).

Claims for reinstatement at work are filed with the court within a month from the date the employee receives a copy of the dismissal order or from the date the work book is issued. An application for resolving a labor dispute is filed with the court within three months from the day when the employee found out or should have found out about the violation of his right. If an employee causes material damage to the enterprise, the employer has the right to apply to the court within one year from the date of discovery of the damage caused.

The decision to reinstate an employee who was illegally dismissed or transferred to another job is subject to immediate execution. If the employer delays the execution of the court decision on reinstatement at work, the court issues a ruling on the payment of average earnings to him.

Collective labor disputes. The procedure for resolving labor disputes, as well as the exercise of the right to strike, are provided for by the Law of the Russian Federation "On the Procedure for Resolving Labor Disputes" dated November 23, 1995 No. 175-FZ and Art. 398 - 418 of the Labor Code of the Russian Federation.

Article 398. Basic concepts

Collective labor dispute - unresolved disagreements between employees (their representatives) and employers (their representatives) regarding the establishment and change of working conditions (including wages), the conclusion, amendment and implementation of collective agreements, agreements, as well as in connection with the refusal of the employer to take into account the opinion an elected representative body of employees when adopting acts containing labor law norms in organizations (Article 398 of the Labor Code of the Russian Federation).

Conciliation procedures - consideration of a collective labor dispute for the purpose of resolving it by a conciliation commission, with the participation of an intermediary and (or) in labor arbitration (Article 398 of the Labor Code of the Russian Federation).

The moment of the beginning of a collective labor dispute is the day when the decision of the employer (his representative) to reject all or part of the claims of employees (their representatives) or the employer (his representative) is not reported in accordance with Art. 400 of the Labor Code of the Russian Federation of its decision, as well as the date of drawing up the protocol of disagreements during collective bargaining (Article 398 of the Labor Code of the Russian Federation).

A strike is a temporary voluntary refusal of employees to perform their labor duties (in whole or in part) in order to resolve a collective labor dispute (Article 398 of the Labor Code of the Russian Federation).

Employees and their representatives, determined in accordance with Art. 29 - 31 of the Labor Code of the Russian Federation. The requirements put forward by employees and (or) the representative body of employees of the organization (branch, representative office, other separate structural unit) are approved at the general meeting (conference) of employees. The meeting of employees is considered competent if more than half of the employees are present at it. The conference is considered eligible if it is attended by at least two thirds of the elected delegates.

The employer is obliged to provide employees or representatives of employees with the necessary premises for holding a meeting (conference) to raise demands and has no right to interfere with its (her) holding.

The requirements of employees are set out in writing and sent to the employer. The demands of trade unions and their associations are put forward and sent to the relevant parties of social partnership. A copy of the requirements, drawn up in writing, may be sent to the Service for Settlement of Collective Labor Disputes. In this case, the specified Service is obliged to check the receipt of claims by the other party to the collective labor dispute.

Employers are obliged to take into consideration the claims of employees sent to them. The employer informs the representative body of the employees of the organization (branch, representative office, other separate structural unit) about the decision taken in writing within three working days from the date of receipt of the employees' request. Representatives of the employer (association of employers) are obliged to take into consideration the requirements of trade unions (their associations) sent to them and inform the trade unions (their associations) of the decision taken within one month from the date of receipt of these requirements (Article 400 of the Labor Code of the Russian Federation).

The procedure for resolving a collective labor dispute consists of the following stages:

consideration of a collective labor dispute by a conciliation commission;

consideration of a collective labor dispute with the participation of a mediator and (or) in labor arbitration.

Consideration of a collective labor dispute by a conciliation commission is a mandatory step. If no agreement is reached in the conciliation commission, the parties to the collective labor dispute proceed to the consideration of the collective labor dispute with the participation of a mediator and (or) in labor arbitration.

Each of the parties to a collective labor dispute, at any time after the start of this dispute, has the right to apply to the Service for the Settlement of Collective Labor Disputes for notification registration of the dispute.

None of the parties to a collective labor dispute has the right to evade participation in conciliation procedures.

The representatives of the parties, the conciliation commission, mediator, labor arbitration, the specified Service are obliged to use all the possibilities provided for by law to resolve the labor dispute that has arisen.

Conciliation procedures are carried out within the time limits stipulated by the RF TR. If necessary, the terms provided for the conduct of conciliation procedures may be extended by agreement of the parties to the collective labor dispute.

If the conciliation procedures did not lead to the resolution of the collective labor dispute, or the employer evades conciliation procedures, does not comply with the agreement reached in the course of resolving the collective labor dispute, then the employees or their representatives have the right to start organizing a strike.

Participation in a strike is voluntary. No one may be forced to participate or refuse to participate in a strike. Persons forcing employees to participate or refuse to participate in a strike shall bear disciplinary, administrative, criminal liability in accordance with the procedure established by the Labor Code of the Russian Federation, other federal laws.

Representatives of the employer are not entitled to organize a strike and take part in it.

The decision to declare a strike is made by the general meeting (conference) of employees of the organization (branch, subdivision, other separate structural unit) at the suggestion of the representative body of employees previously authorized by employees to resolve a collective labor dispute. The decision to declare a strike, adopted by a trade union (association of trade unions), is approved for each organization by a meeting (conference) of employees of this organization. A meeting (conference) of employees is considered eligible if it is attended by at least two thirds of the total number of employees (conference delegates). The decision is considered adopted if at least half of the employees present at the meeting (conference) voted for it. If it is impossible to hold a meeting (convening a conference) of workers, the representative body of workers has the right to approve its decision by collecting signatures of more than half of the workers in support of the strike.

After five calendar days of work of the conciliation commission, a one-hour warning strike may be declared once, about which the employer must be warned in writing no later than three working days in advance. When conducting a warning strike, the body that leads it provides the minimum necessary work (services) in accordance with the Labor Code of the Russian Federation.

The employer must be notified in writing of the start of the forthcoming strike no later than ten calendar days in advance.

The decision to declare a strike shall specify:

a list of disagreements between the parties to the collective labor dispute, which are the basis for declaring and holding a strike;

the date and time of the start of the strike, its expected duration and the expected number of participants;

the name of the body leading the strike, the composition of the representatives of employees authorized to participate in conciliation procedures;

proposals for the minimum necessary work (services) performed in an organization, branch, representative office, other separate structural unit during the strike.

The employer warns the Service for Settlement of Collective Labor Disputes about the upcoming strike.

In accordance with Art. 55 of the Constitution of the Russian Federation are illegal and strikes are not allowed:

during periods of introduction of martial law or a state of emergency or special measures in accordance with the legislation on a state of emergency; in the bodies and organizations of the Armed Forces of the Russian Federation, other military, paramilitary and other formations and organizations in charge of ensuring the defense of the country, state security, emergency rescue, search and rescue, fire fighting, prevention or elimination of natural disasters and emergency situations; in law enforcement agencies; in organizations that directly serve especially dangerous types of production or equipment, at ambulance and emergency medical aid stations;

in organizations related to ensuring the life of the population (energy supply, heating and heat supply, water supply, gas supply, aviation, rail and water transport, communications, hospitals), in the event that strikes pose a threat to the defense of the country and state security, life and health of people .

A strike in the presence of a collective labor dispute is illegal if it was announced without taking into account the terms, procedures and requirements provided for by the Labor Code of the Russian Federation.

The decision to recognize a strike as illegal is made by the supreme courts of the republics, regional and regional courts, courts of cities of federal significance, courts of an autonomous region and autonomous districts upon the application of an employer or a prosecutor. The decision of the court is brought to the attention of the workers through the body leading the strike, which is obliged to immediately inform the participants in the strike about the decision of the court. The court decision on the recognition of the strike as illegal, which has entered into legal force, is subject to immediate execution. Workers are obliged to stop the strike and start work no later than the next day after the copy of the said court decision is handed over to the body leading the strike (Article 413 of the Labor Code of the Russian Federation).

In the event of a direct threat to the life or health of people, the court has the right to postpone a strike that has not begun for a period of up to 30 days, and to suspend a strike that has begun for the same period. In cases of particular importance for ensuring the vital interests of the Russian Federation or its individual territories, the Government of the Russian Federation has the right to suspend the strike until the issue is resolved by the appropriate court, but not more than for ten calendar days.

The right to strike may be restricted by federal law.

The participation of an employee in a strike cannot be considered as a violation of labor discipline and grounds for terminating an employment contract, except in cases of failure to fulfill the obligation to end the strike (Article 414 of the Labor Code of the Russian Federation). It is forbidden to apply disciplinary measures to workers participating in a strike, except as provided for in Part 6 of Art. 413 of the Labor Code of the Russian Federation.

For the duration of the strike, the workers participating in it retain their place of work and position. The employer has the right not to pay wages to employees during their participation in the strike, with the exception of employees engaged in the performance of the mandatory minimum of work (services). A collective agreement, agreement or agreements reached in the course of resolving a collective labor dispute may provide for compensation payments to workers participating in a strike.

Employees who do not participate in the strike, but in connection with its conduct were not able to perform their work and declared in writing the start of downtime in connection with this, are paid for downtime through no fault of the employee in the manner and in the amount provided for by the Labor Code of the Russian Federation. The employer has the right to transfer these employees to another job in the manner prescribed by the Labor Code of the Russian Federation. A collective agreement, agreement or agreements reached in the course of resolving a collective labor dispute may provide for a more preferential procedure for payments to employees who do not participate in a strike than provided for by the Labor Code of the Russian Federation.

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Lecture course

"Legal basis of labor relations"

for students of distance learning directions

• Subject, method, sources and subjects of labor law
• Labor contract
• Changing the employment contract
• Liability of the parties to the employment contract
• Disciplinary responsibility of an employee
• Termination of an employment contract
• Compensation of workers
• Work time
• Time relax
• Individual labor disputes
• Collective labor disputes
• Social security relations
• Introduction
• employment contract pay collective
• The study of the factors of regulation of labor relations for future specialists in the field of personnel management, management and service provision is important for the full implementation of educational competencies and is necessary for future successful professional activity.
• The state of law and order in society depends on the level of public legal awareness, the legal culture of citizens. Of course, the starting point here is the knowledge of law, legislation. However, the state of legality also depends on how the elements of legal consciousness work in the human mind, the formation of which is influenced by many other factors. These include the law enforcement activities of state authorities and administration, and the activities of law enforcement agencies, and administrative activities specific head of the enterprise, organization, institution. Most of the violations of the law in management activities are due to poor knowledge of it. The rule of law state is inextricably linked with an increase in the legal culture of the entire population and, of course, executives.
• Knowledge of the law and the ability to skillfully use the law in management activities in the modern period are absolutely necessary, regardless of the position.
• Subject, method, sources and subjects of labor law

Work- is a purposeful human activity associated with the transformation environment aimed at modifying and adapting objects to meet their needs. Labor played a decisive role in the formation of man. Everything that we use in everyday life is the result of the work of many generations. Many relations that develop between the participants in such activities are regulated by law. The norms of law regulate not labor itself, but relations that arise either in the process of labor or in connection with obtaining its results.

The unified system of law that exists in the state implies a certain classification, i.e. division into industries. The branches differ from each other, first of all, by the subject of legal regulation (these are public relations regulated by the norms of one branch of law).

labor law- This is a branch of law that regulates the procedure for the emergence, change and termination of labor relations. It determines the mode of joint work of employees, establishes labor standards, labor protection rules and the procedure for considering labor disputes. Labor law regulates social relations that arise in connection with the application and realization of a person's ability to work.

The objectives of labor legislation are the establishment of state guarantees of labor rights and freedoms of citizens, the creation of favorable working conditions, the protection of the rights and interests of workers and employers.

The norms of labor law regulate not technological processes, but social relations of the subjects of labor relations, i.e. social forms of work. Forms of social organization of labor are different. Individual labor, family labor, military labor or training sessions are not subject to regulation by labor law, tk. committed outside the social relations included in the subject of labor law.

The subject of labor law are labor and other directly related relations (derivative relations, i.e. accompanying, preceding or arising from labor).

Labor Relations, in accordance with Article 15 of the Labor Code of the Russian Federation, these are relations based on an agreement between the employee and the employer on the personal performance by the employee of a labor function for payment, the employee's subordination to the internal labor regulations while the employer ensures the working conditions provided for by labor legislation and other regulatory legal acts, containing labor law. To derivative relations relationships include:

labor organization and labor management;

employment with this employer;

professional training, retraining and advanced training of employees directly from this employer;

social partnership, collective bargaining, conclusion of collective agreements and agreements;

the participation of employees and trade unions in the establishment of working conditions and the application of labor legislation in cases provided for by law;

liability employers and workers in the world of work;

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

resolution of labor disputes;

compulsory social insurance in cases stipulated by law.

In addition, labor relations should be distinguished from related legal relations. These include civil, financial, economic relations, social security and employment relations, and others. The closest in terms of legal regulation are civil relations. Labor relations differ from civil relations in the following ways:

1. Names of the parties. In labor relations, this is an employee and an employer, and in civil relations, in accordance with Article 702 Civil Code RF, customer and performer (contractor).

2. Personal participation of a person in the labor process. In civil relations, subcontracting is possible, i.e. the performer (contractor) has the right to involve other persons in the performance of his obligations (Article 706 of the Civil Code of the Russian Federation). In economics, there is a similar concept - outsourcing.

3. Pay is systematic. In accordance with Article 136 of the Labor Code of the Russian Federation - at least every half a month. In civil legal relations, labor is paid after the final delivery of the results of work (Article 711 of the Civil Code of the Russian Federation).

4. Establishing a labor function for a person. For managers and specialists, this is a position, specialty and qualification. For workers, this is a profession, specialty and qualification. When determining the latter, first of all, education is taken into account, then work experience and advanced training in the position held or work performed. In addition, an addition was made to the definition of the labor function by the law of June 30, 2006 No. 90-FZ: this is a specific type of work. This extension of the concept of labor function has brought labor relations even closer to civil law ones.

5. Subordinate relations (i.e. there is a vertical of power) Performance by a person of a labor function under the guidance of a representative of the employer and according to the work and rest regime established by the employer, established by a number of internal (local) acts of the employer

6. Labor safety provided by the employer. In order to ensure compliance with labor protection requirements, to monitor their implementation for each employer exercising production activities and the number of employees exceeds 50, an occupational safety service is created or the position of an occupational safety specialist with appropriate training or experience in this field is introduced. If the employer does not have a labor protection service or a full-time labor protection specialist, their functions are personally carried out by the employer - an individual entrepreneur, the head of an organization, another employee authorized by the employer, or an organization or specialist providing services in the field of labor protection, attracted by the employer under a civil law contract.

Conclusion: civil law relations are aimed at achieving results, and labor relations regulate the labor process.

Ways of knowing the subject of labor law is called the method. In labor law, a feature of the method is a combination of general and special rules, legislative and local regulation, imperative and dispositive rules.

source of law called the form of expression of the will of the state. In the Russian Federation, the main form is legal act, i.e. an official document adopted by special bodies of the state that establishes rules of conduct (norms) in a particular area of ​​law.

The sources of labor law are (by legal force):

the Constitution of the Russian Federation;

international treaties regulating labor and legal relations derived from them, ratified by the Russian Federation;

Labor Code of the Russian Federation;

other federal laws containing labor law norms; decrees of the President of the Russian Federation; resolutions of the Government of the Russian Federation;

normative acts of executive authorities of the Russian Federation;

acts of local governments;

intra-organizational (local) acts of the employer.

Generally recognized principles and norms of international law and international treaties of the Russian Federation in accordance with the Constitution of the Russian Federation are an integral part of the legal system of the Russian Federation. If an international treaty of the Russian Federation establishes other rules than those provided for by laws and other regulatory legal acts containing labor law norms, the rules of the international treaty (Article 10 of the Labor Code of the Russian Federation) are applied. More than fifty ILO conventions operate on the territory of the Russian Federation.

The norms of labor law contained in other laws must comply with the Labor Code of the Russian Federation. In case of contradictions between the Labor Code of the Russian Federation and other federal laws containing labor law norms, the Labor Code of the Russian Federation shall apply. If a newly adopted federal law contradicts the Labor Code of the Russian Federation, then this federal law is applied subject to the introduction of appropriate amendments and additions to the Labor Code of the Russian Federation.

Of particular importance for the regulation of labor relations among the acts of ministries and departments are the resolutions and clarifications of the Ministry of Health and Social Development of the Russian Federation. The regulations adopted by this ministry are binding on all subjects of labor relations.

Local self-government bodies have the right to adopt acts containing labor law norms within their competence.

The employer is obliged to adopt local regulations and familiarize his employees against signature with all acts directly related to their labor activity. Such acts are internal labor regulations, payroll documents, payslip form, personal data protection document, vacation schedule, collective agreement and other local regulations (for example, orders for admission, disciplinary action, sending on a business trip, etc. .)

Local regulations that worsen the position of employees in comparison with labor legislation, a collective agreement, agreements, or adopted without observing the prescribed procedure for taking into account the opinion of the representative body of employees, are invalid. In such cases, laws or other normative legal acts containing labor law norms are applied.

The procedure for taking into account the opinion of the trade union body (other representative body of employees) is provided for by law.

In addition to the above normative acts, a special place is given to judicial practice. These are the acts of the Plenum of the Armed Forces of the Russian Federation. By themselves they are not sources of law, i.e. cannot introduce new norms or change old ones. But as a result of summarizing the judicial practice of lower courts (district courts, world courts, courts of subjects within the Russian Federation), the Supreme Court of the Russian Federation may come to the conclusion that it is necessary to amend the current legislation and come up with a legislative initiative.

We must also not forget about analogy of law and analogy of law. Analogy serves as a means of resolving specific cases in the presence of a gap in the law, i.e. when a certain issue must be resolved by legal means, but such a solution is not provided for by law or is not fully provided for.

The analogy of the law is used when considering situations where the relations over which the dispute arose are not regulated by the norms of a particular branch of law and agreements of the parties to introduce certainty into the relationship of the parties to the conflict, however, there is a legislative act that regulates similar relations and can be applied to a disputed case. The main source for applying the analogy of the law to labor relations is the Civil Code of the Russian Federation.

From the analogy of the law, one should distinguish the legislative method of referential regulation, when the normative act regulating a certain relation contains an indication that a particular issue should be resolved in accordance with specific rules that govern another kind of relationship.

The analogy of law is the application to relations requiring legal regulation, but not regulated by law or by-law, of the general principles and principles of the legal institution and the requirements of good faith, reasonableness and justice.

Sources of labor law does not apply to the following persons:

military personnel in the performance of their duties of military service;

other certified persons (state civil servants, police officers, prosecutors, customs officers, captains and crew members of water and aircraft, etc.);

members of the boards of directors (supervisory boards) of organizations (with the exception of persons who have concluded an employment contract with this organization);

persons working under civil law contracts

and other persons, if it is established by federal law.

The main participants in the employment relationship are the employee and the employer.

Employee- an individual who has entered into an employment relationship with the employer. Persons who have reached the age of sixteen have the right to enter into labor relations as employees - this is the age of working capacity.

In cases of receiving general education, or continuing to master the main general education program of general education in a form of education other than full-time, or leaving a general education institution in accordance with federal law (for example, when transferring to an evening school), an employment contract may be concluded by persons who have reached the age of fifteen years to fulfill light labor not harmful to their health.

From the age of fourteen, with the consent of one of the parents (trustee) and the body of guardianship and guardianship, an employment contract may be concluded to perform light work in his free time from study that does not harm his health and does not violate the learning process.

It is prohibited to use the labor of persons under the age of eighteen years in work with harmful, dangerous working conditions, in underground work, as well as in work, the performance of which may harm their health and moral development (gambling, work in night cabarets and clubs, production, transportation and sale of alcoholic beverages, tobacco products, narcotic and other toxic drugs).

In cinematography organizations, theaters, theater and concert organizations, circuses, it is allowed, with the consent of one of the parents (guardian) and the permission of the guardianship and guardianship authority, to conclude an employment contract with persons under the age of fourteen to participate in the creation and performance of works. The employment contract on behalf of the employee in this case is signed by his parent (guardian). The permit of the body of guardianship and guardianship shall indicate the maximum allowable duration of daily work and other conditions under which work may be performed.

Legislation has a differentiated approach to regulating the labor of ordinary workers and so-called special subjects - heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations.

employermay be 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. These are private notaries, lawyers who have established law offices, detectives and other persons whose professional activity subject to federal law state registration and licensing.

Individual can be an employer in two cases:

1. duly registered as an individual entrepreneur and carrying out entrepreneurial activity without formation of a legal entity;

2. for personal service and household assistance.

The employer - an individual is obliged:

draw up an employment contract with an employee in writing;

pay insurance premiums and other mandatory payments in the manner and amount determined by federal laws;

draw up insurance certificates of state pension insurance for persons entering work for the first time.

An employer - an individual who is not an individual entrepreneur and who hired an employee for the needs of a personal household, is also obliged to notify the employment contract with the employee at the local government at his place of residence (in accordance with registration).

Individuals who have reached the age of eighteen years have the right to conclude employment contracts as employers, provided that they have full civil capacity, as well as persons who have not reached the specified age, from the day they acquire civil capacity in full (emancipation of a minor) . Individuals with independent income, who have reached the age of eighteen, but limited by the court in their legal capacity, have the right, with the written consent of the trustees, to conclude employment contracts with employees for the purpose of personal service and assistance with housekeeping. On behalf of individuals who have an independent income, who have reached the age of eighteen, but have been recognized by the court as legally incompetent, their guardians may conclude employment contracts with employees for the purpose of personal service to these individuals and assistance to them in housekeeping.

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

In the above cases, legal representatives (parents, guardians, trustees) of individuals acting as employers bear additional liability for obligations arising from labor relations, including obligations to pay wages.

Entity, in accordance with Article 48 of the Civil Code of the Russian Federation, this is an organization that owns, manages or manages separate property and is liable for its obligations with this property, can acquire and exercise property and personal non-property rights on its own behalf, bear obligations, be plaintiff and defendant in court. The rights and obligations of the employer in labor relations are exercised by the management bodies of the legal entity (organization) or persons authorized by them. This is regulated in the title document of the organization - the Charter and (or) the memorandum of association. For the obligations of employers - institutions financed in whole or in part by the owner (founder), as well as employers - state-owned enterprises, the owner (founder) bears additional responsibility for obligations arising from labor relations in accordance with federal laws and other regulatory legal acts of the Russian Federation.

In accordance with Art. 55 of the Civil Code of the Russian Federation representation - separate subdivision a legal entity located outside its location, which represents the interests of a legal entity and protects them. A branch is a separate subdivision of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office. Branches and representative offices do not have the rights of a legal entity, their heads act under a power of attorney issued by the head of the parent organization. Art. eleven tax code The Russian Federation also introduces the concept of a separate subdivision of an organization - any subdivision that is territorially isolated from it, at the location of which stationary workplaces are equipped. A separate subdivision of an organization is recognized as such, regardless of whether this fact is reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the specified subdivision. Wherein workplace is considered stationary if it is created for a period of more than one month. Based on the provisions of the Tax Code of the Russian Federation, any workshop located outside the place of the organization's main activity can be considered its separate structural unit. The concept of "separate subdivision" is introduced only for the purposes of the Tax Code, which regulates power relations in the establishment, introduction and collection of taxes and fees in the Russian Federation. And this can be applied to social and labor relations by analogy with the law.

The issue of the legal nature of a separate structural unit was also studied by judicial practice, which offers four criteria for its determination:

territorial isolation;

availability of equipped stationary workplaces;

implementation of auxiliary, autonomous activities;

the suspension of the work of such a unit will not entail the suspension of the activities of the entire organization as a whole.

All employers (individuals and legal entities, regardless of their organizational and legal forms and forms of ownership) in labor relations and other directly related relations with employees are obliged to be guided by the provisions of labor legislation and other acts containing labor law norms.

Other subjects of labor law are state (federal and regional) authorities, local self-government bodies, employment centers, migration registration bodies, bodies for the consideration of individual and collective labor disputes, bodies for control and supervision over compliance with labor legislation and labor protection, and others.

Of particular importance in the regulation of social and labor relations are sides of social partnership. These are representatives of workers and employers.

Employee representatives are professional union s and their associations, other trade union organizations provided for by the charters of all-Russian, interregional trade unions, and in cases where the employees of this employer are not united in any primary trade union organizations or none of the existing primary trade union organizations unites more than half of the employees of this employer and does not authorized to represent the interests of all employees in social partnership at the local level, at the general meeting (conference) of employees to exercise these powers by secret ballot can be elected from among the employees other representative or representative body. The presence of another representative cannot be an obstacle to the exercise by the primary trade union organizations of their powers.

Employer representatives when conducting collective negotiations, concluding or amending a collective agreement, as well as when considering and resolving collective labor disputes of employees, they represent the head of the organization, the employer - an individual entrepreneur personally or persons authorized by them in accordance with the constituent documents of the legal entity (organization) and local regulations. When conducting collective negotiations, concluding or changing agreements, resolving collective labor disputes regarding their conclusion or changing, as well as when forming and carrying out the activities of commissions for the regulation of social and labor relations, the interests of employers are represented by the relevant associations of employers. This is a non-profit organization that unites employers on a voluntary basis to represent the interests and protect the rights of its members in relations with trade unions, state authorities and local governments. Federal public institutions, state institutions of the constituent entities of the Russian Federation, municipal institutions and other organizations financed from the relevant budgets, when carrying out the above activities, are the relevant federal executive authorities, executive authorities of the constituent entities of the Russian Federation, other state bodies, local governments.

Labor contract

Labor contract- This is an agreement between the parties on the terms of work. The legislative definition of an employment contract is given in Article 56 of the Labor Code of the Russian Federation.

At the beginning of the employment contract are indicated:

place and date of conclusion of the employment contract.

surname, name, patronymic of the employee and the name of the employer (or surname, name, patronymic of the employer - an individual) who entered into an employment contract;

information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is endowed with the appropriate authority (protocol or order on appointment to the position, details of the power of attorney);

information about documents proving the identity of the employee and the employer - an individual.

At the end, as a rule, the identification number of the taxpayer is indicated, with the exception of employers - individuals who are not individual entrepreneurs, other details of the parties, signatures of the employee and the representative of the employer authorized to sign labor contracts.

If at the conclusion of an employment contract it did not include any of the information provided for by law, then this is not a basis for recognizing the contract as not concluded or for terminating it. Missing information is entered directly into the text of the employment contract.

place of work- this is the place where the employee should be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer, and if it is located in another area, then with the obligatory indication of the branch, representative office, other separate structural unit and its location;

labor function- this is either a position, specialty, qualification for a specialist, or a profession, specialty, qualification or profession, qualification for a worker, or a specific type of work assigned to an employee. If the provision of compensations and benefits or the presence of restrictions is associated with the performance of work on this function, then the names of these positions, professions, specialties and qualification requirements for them must comply with the qualification reference books. For example, the Qualification Directory for the positions of managers, specialists and other employees, approved by the Decree of the Ministry of Labor of the Russian Federation of August 21, 1998 No. 37.

start date, and when concluding a fixed-term employment contract - also its duration and circumstances (reasons), which served as the basis for his conclusion in accordance with Article 59 of the Labor Code;

pay conditions(including the size tariff rate or salary (official salary) of an employee, additional payments, allowances and incentive payments);

working hours and rest time(if for this employee it differs from the general rules in force for this employer);

characteristics of working conditions at the workplace in accordance with the certification of the workplace, and if the conditions deviate from normal (severe, harmful or dangerous), then compensation and benefits for such work as, for example, the provision of certified personal and collective protective equipment ( special clothing, special shoes and other personal protective equipment, flushing and neutralizing agents);

conditions that determine, if necessary, nature of work(mobile, traveling, on the way);

condition on compulsory social insurance of the employee.

and others, if provided by law. For example, a condition on non-disclosure of information constituting a state secret can be included in the contract to a person who has the appropriate clearance and is the carrier of such information.

If, when concluding an employment contract, it did not include any of the conditions provided for by law, then this is not a basis for recognizing the employment contract as not concluded or for terminating it. The employment contract must be supplemented by the missingconditions in the form of an appendix to the employment contract or a separate agreement of the parties concluded in writing, which are an integral part of the employment contract.

By agreement of the parties, the employment contract may include other additional conditions. For example, these may be the rights and obligations of the employee and the employer, although more often they are reflected in the local documents of the employer - the job description.

The additional conditions provided for by the contract should not worsen the position of the employee in comparison with those established by law. These may be the conditions:

about the test;

on non-disclosure of legally protected secrets (state, official, commercial and other);

on the obligation of the employee to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer;

on the types and conditions of additional employee insurance;

on improving the social and living conditions of the employee and members of his family.

Such conditions, being included in the employment contract, have the force of mandatory conditions.

A special place among additional conditions contracts, of course, takes test for employment. It is established by agreement of the parties to verify the compliance of the employee with the work assigned or the position held only at the time of the employment relationship. If the employee was actually allowed to work with the knowledge or on behalf of the employer or his representative without drawing up an employment contract, then the probation clause can only be included in the contract if the parties have drawn it up in the form of a separate agreement before starting work. For example, in a statement or other written agreement.

During the probation period, the employee is subject to the provisions of labor legislation regarding warranty and compensation payments. Discrimination of an employee on the basis of being on a probationary period is not allowed.

A test for employment is not established for:

persons elected by competition to fill the relevant position;

pregnant women and women with children under the age of one and a half years;

persons under the age of eighteen;

persons who graduated from state-accredited educational institutions of primary, secondary and higher vocational education and for the first time entering work in the acquired specialty within one year from the date of graduation from an educational institution (young worker or specialist);

persons elected to elective office for paid work;

persons invited to work in the order of transfer from another employer as agreed between employers;

persons concluding an employment contract for a period of up to two months;

in other cases.

Test period:

1. The total period cannot exceed three months.

2. a special period is set for:

a) for the heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations) - six months.

b) for persons who have concluded an employment contract for a period of two to six months - no more than two weeks.

However, for example, for civil servants (and these are certified persons), the probationary period can be up to 1 year (according to the law "On the State Civil Service of the Russian Federation", "On the Police").

The period of temporary disability of the employee and other periods when he was actually absent from work are not included in the probationary period.

In case of an unsatisfactory test result, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, notifying him in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as not having passed the test. The employee has the right to appeal against the decision of the employer in court. Termination of the employment contract is made without taking into account the opinion of the relevant trade union body and without payment of severance pay.

If the probation period has expired, and the employee continues to work, then he is considered to have passed the probation and the subsequent termination of the employment contract is allowed only on a general basis.

If during the trial period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, notifying the employer in writing three days in advance.

Types of employment contract.

Employment contracts may be concluded:

1) for an indefinite period;

2) for a fixed period of not more than five years (fixed-term employment contract), unless another period is established by law. At the same time, it must be remembered that the condition on the reason for the conclusion fixed-term contract is mandatory in accordance with part 3 of article 57 of the Labor Code of the Russian Federation.

A fixed-term employment contract is concluded when labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation, namely in the cases provided for in Part 1 of Article 59 of the Labor Code of the Russian Federation:

for the duration of the performance of the duties of an absent employee, for whom, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, the place of work is retained;

for the duration of temporary (up to two months) works;

to perform seasonal work, when, due to natural conditions, work can only be done during a certain period (season);

with persons sent to work abroad;

for work that goes beyond the normal activities of the employer (reconstruction, installation, commissioning and other work), as well as work associated with a deliberately temporary (up to one year) expansion of production or the volume of services provided;

with persons entering work in organizations created for a known period or to perform a known work;

with persons hired to perform a deliberately defined work in cases where its completion cannot be determined by a specific date;

to perform work directly related to the internship and vocational training of the employee;

in cases of election for a certain period to an elected body or to an elective position for paid work, as well as employment related to the direct support of the activities of members of elected bodies or officials in public authorities and local governments, in political parties and other public associations;

with persons sent by the bodies of the employment service to work of a temporary nature and public works;

with citizens sent for alternative civilian service and other cases.

In the situations provided for in Part 2 of Article 59, a fixed-term employment contract may be concluded by agreement of the parties to the employment contract without taking into account the nature of the work to be done and the conditions for its implementation:

with persons coming to work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field of retail trade and consumer services - 20 people);

with pensioners entering work by age, as well as with persons who, for health reasons, in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, are allowed to work exclusively of a temporary nature;

with persons entering work in organizations located in the regions of the Far North and areas equivalent to them, if this is associated with moving to the place of work;

to carry out urgent work to prevent catastrophes, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;

with persons elected by competition to fill the relevant position, held in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms;

with creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these workers approved by the Government of the Russian Federation Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations;

with heads, deputy heads and chief accountants of organizations, regardless of their organizational and legal forms and forms of ownership;

with persons studying full-time;

with persons entering a part-time job and in other situations.

An employment contract concluded for a fixed period in the absence of sufficient grounds established by the court is considered to be concluded for an indefinite period.

It is prohibited to conclude fixed-term employment contracts in order to avoid granting the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period.

If the employment contract does not specify the term of its validity, then the contract is considered concluded for an indefinite period.

An employment contract may change its form if none of the parties has demanded the termination of a fixed-term employment contract due to its expiration and the employee continues to work after the expiration of the employment contract. In this case, the condition on the urgent nature of the employment contract becomes invalid and the employment contract is considered concluded for an indefinite period.

The employment contract comes into force from the day it is signed by the employee and the employer, unless otherwise provided by law, by the employment contract itself, or from the day actual assumption employee to work with the knowledge or on behalf of the employer or his representative (Article 16).

The employee is obliged to start performing labor duties from the day specified in the employment contract. If the employment contract does not specify the day of commencement of work, the employee must start work on the next working day after the entry into force of the contract.

If the employee did not start work on the day of commencement of work, established in accordance with the second or third part of this article, the employer has the right to cancel the employment contract. The canceled employment contract is considered not concluded. Cancellation of the employment contract does not deprive the employee of the right to receive mandatory social insurance in the event of insured event in the period from the date of conclusion of the employment contract until the day of its cancellation.

It is prohibited to require an employee to perform work not stipulated by an employment contract.

Types of work under an employment contract:

1) Main. This is the employer who keeps the work book of the employee;

2) Part-time work. It is internal and external. Internal combination- this is the performance in free time from the main work of another paid job for the same employer. An external part-time job is the performance of another paid job for another employer in free time from the main job. Features of the regulation of the labor of persons working part-time are determined by Chapter 44 of the Labor Code of the Russian Federation.

3) Combination of professions (positions). This is the performance during the established duration of the working day or shift, along with the work determined by the employment contract, additional work in another or the same profession (position) for additional payment. The amount of the additional payment is established by agreement of the parties to the employment contract.

There is also an expansion of service areas, an increase in the volume of work, the performance of the duties of a temporarily absent employee without exemption from work determined by the employment contract. This is possible only with the written consent of the employee. It is drawn up as an appendix or additional agreement to the employment contract and the order of the employer. The period during which the employee will perform additional work, its content and volume are also established by agreement of the parties. The employee has the right to early refuse to perform additional work, and the employer - to cancel the order to perform it ahead of schedule, notifying the other party in writing no later than three working days in advance.

In accordance with Article 37 of the Constitution of the Russian Federation, labor is free. Everyone has the right to freely dispose of his abilities to work, to choose the type of activity and profession. Forced labor is prohibited.

Forced labor- this is the performance of work under the threat of any punishment (violent influence), including:

in order to maintain labor discipline;

as a measure of responsibility for participating in a strike;

as a means of mobilizing and using labor force for the needs of economic development;

as a punishment for having or expressing political views or ideological beliefs that are contrary to the established political, social or economic system;

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

Forced labor also includes work that a worker is forced to perform under the threat of some kind of punishment, while he, by law, has the right to refuse to perform it:

violation deadlines payment of wages or its payment not in full;

the emergence of a direct threat to the life and health of an employee due to violation of labor protection requirements, in particular, failure to provide him with means of collective or individual protection in accordance with established standards.

Not considered forced labor:

work, the performance of which is conditioned by the legislation on military duty and military service or alternative civil service replacing it;

work, the performance of which is conditioned by the introduction of a state of emergency or martial law in the manner prescribed by federal constitutional laws;

work performed in emergency situations, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases that endanger the life or normal living conditions of the entire population or part of it;

supervised work performed as a result of an enforceable judgment government agencies responsible for compliance with the law in the execution of court sentences.

Everyone has equal opportunities to exercise their labor rights. Nobody can be subjected discrimination(literally: restriction, infringement - a general legal term, usually denoting the infringement of the rights of persons in comparison with others, in any form is prohibited by domestic and international law). Restriction in labor rights and freedoms or obtaining any advantages regardless of gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence (including the presence or absence of registration at the place of residence, stay or at the location of the employer, which is illegal because it violates the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence, guaranteed by part 1 of article 27 of the Constitution of the Russian Federation), attitudes towards religion, political opinions, belonging or non-belonging to public associations, as well as from other circumstances not related to the professional qualities of the employee, is prohibited.

The business qualities of an employee are understood as the ability of an individual to perform a certain labor function, taking into account his professional and qualification qualities (for example, the presence certain profession, specialties, qualifications), personal qualities employee (for example, the state of health, the presence of a certain level of education, work experience in a given specialty, in a given industry). In addition, the employer has the right to present to a person applying for a vacant position or job, and other requirements that are mandatory for concluding an employment contract by virtue of a direct prescription of federal law, or that are necessary in addition to standard or typical professional qualification requirements due to the specifics of a particular other work (for example, owning one or more foreign languages ability to work on a computer).

The establishment of differences, exceptions, preferences, as well as the restriction of the rights of employees, which are determined by the inherent this species labor requirements established by law, or due to the special concern of the state for persons in need of increased social and legal protection. For example, when hiring a teacher or a doctor, the presence of a special education, confirmed by a diploma, is implied. There are jobs that are reserved for the disabled or other socially disadvantaged persons.

It is forbidden to refuse to conclude an employment contract for women for reasons related to pregnancy or the presence of children. It is prohibited to refuse to conclude an employment contract to employees invited in writing to work by transfer from another employer within one month from the date of dismissal from their previous place of work.

At the request of the person who was refused to conclude an employment contract, the employer is obliged to inform the reason for the refusal in writing.

Persons who believe that they have been subjected to discrimination in the sphere of labor or an illegal refusal to conclude an employment contract have the right to apply to the court for the restoration of violated rights, compensation for material damage and compensation for moral damage.

When formalizing labor relations with former state and municipal employees who filled positions according to the list (it is established by the regulations of the Russian Federation), after their dismissal from service, they are obliged to inform the employer about the last place of service within two years. And the employer in this case is obliged to report the conclusion of such an agreement to the representative of the employer (employer) of the state or municipal employee at his last place of service within ten days. The procedure for informing the representative of the employer (employer) of the former state and municipal employee is established by the regulatory legal acts of the Russian Federation.

Labor relations arise between the employee and the employer on the basis of an employment contract concluded by them. Sometimes employment relationships arise as a result of:

election to an elective position (for example, deputies);

election by competition to fill the relevant position (for example, university teachers. Although, the competition can be in various forms: interviews, questionnaires, testing, polygraph (lie detector) tests, performing certain tasks, etc. The only condition is the presence of a local act regulating these legal relations);

appointments to a position (carried out in organizations where there is a clear vertical of power);

approval in the position (sometimes called approval);

assignments to work by authorized bodies in accordance with federal law on account of the established quota (for example, in the Saratov region there is a law dated February 28, 2005 No. 20-ZSO “On establishing a quota for hiring disabled people”);

court decision on the conclusion of an employment contract.

Also, labor relations between the employee and the employer 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. In this case, the employer is obliged to draw up an employment contract with the employee no later than three working days from the day the employee was actually admitted to work. The representative of the employer in labor relations is the management body of the legal entity (organization) or a person authorized by it. This is regulated in the title document of the organization - the Charter and (or) the memorandum of association. These situations occur quite often. In this case, the person must apply to the court for the establishment legal fact emergence of labor relations. The basis may be any documents or testimonies.

When concluding an employment contract, a person entering a job must present to the employer:

passport or other identity document;

a work book (if an employment contract is concluded for the first time, then it is drawn up by the employer; if an employee enters a job on a part-time basis, then information about part-time work is entered in the work book at the place of main work on the basis of a document confirming part-time work, for example, a copy of the order on employment);

insurance certificate of state pension insurance (if the contract is drawn up for the first time, then this certificate is drawn up by the employer);

documentation military registration- for persons liable for military service and persons subject to conscription for military service (military ID or registration certificate);

...

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Istomina T.A.

TO THE QUESTION OF THE LEGAL STATUS OF THE CIVIL PERSONNEL OF THE ARMED FORCES OF THE RUSSIAN FEDERATION

The normative act, which for the first time mentions workers performing their labor duties in military organizations, should be considered the order of the Revolutionary Military Council of October 2, 1924 No. 12441. In it, these categories of workers were referred to as “civilian employees” and “free workers”. The legal status of civilian personnel of that time was determined, as it is now, by the norms of labor legislation. The first codified act in the sphere of labor was the Labor Code (Labor Code) of 1918, which laid the foundation for Soviet labor law, which was formed under the conditions of “war communism”. Then the Labor Code of 1922 was adopted. Both codes did not particularly stipulate the legal status of the civilian personnel of the army and navy.

In January 1953, by directive of the General Staff of the Soviet Army No. ORG 1/23, the concept of "civilian personnel" was replaced by "workers and employees of the Soviet Army", since the previously used concept was outdated and no longer corresponded to the prevailing economic relations.

The adoption of the Labor Code of 1971 did not change the situation with the legal regulation of the status of civilian personnel of the Armed Forces, which, as before, was not specifically stipulated in the law.

In 1996, in the order of the Minister of Defense of the Russian Federation "On measures to strengthen the rule of law in labor relations in the Armed Forces of the Russian Federation (hereinafter - the Armed Forces of the Russian Federation)" appeared already modern concept- “civilian personnel”, which is understood as the personnel of the Armed Forces of the Russian Federation, staffed by both citizens of the Russian Federation and foreign citizens who have concluded an employment contract for work or professional service activities for certain staffing positions and specialties in military units of the Armed Forces of the Russian Federation in

1 In practice, the use of the labor of civilian personnel in the army took place even before the issuance of this order. - T.I.

for the fulfillment of the tasks entrusted to them. The concept of military units in this case should be interpreted broadly and understood by them not only military units, but also military institutions and organizations, military educational institutions. Otherwise, this concept would not cover a significant number of citizens related to civilian personnel.

Since February 1, 2002, the new Labor Code of the Russian Federation has been in force, which spells out the features of the legal status of civilian personnel of the Armed Forces of the Russian Federation. Part 2 of Article 349 of this regulatory legal act establishes the need to establish special conditions for remuneration, additional guarantees and benefits, the nature and conditions of which are determined based on the tasks of the bodies, institutions and organizations in which labor activity is carried out. Thus, this article of the Labor Code of the Russian Federation is of a reference nature.

Features of the legal regulation of the labor of civilian personnel of the Armed Forces of the Russian Federation are established by by-laws - decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation, regulatory legal acts of the Ministry of Defense of the Russian Federation, other authorized federal executive bodies. At the same time, the guarantees provided by by-laws, as well as the mechanisms provided for by them, do not fully contribute to ensuring a decent life for civilian personnel of the RF Armed Forces.

In connection with this problem, a large number of scientific papers have appeared in recent years [For example, see: 2, p. 75-78; 3, p. 58-60; 4, p. 40-45; 5, p. 75-78; 6, p. 87-89]. In these and other works of scientists and lawyers, general issues legal regulation of the status of civilian personnel, as well as the problems of implementing certain provisions of labor legislation in relation to this category of workers. It is especially emphasized that in the conditions of reforming the Armed Forces of the Russian Federation, the role and importance of civilian personnel has significantly increased. As a result of the reduction in the number of personnel in the army and navy, the Ministry of Defense of the Russian Federation has set the task of replacing the vacated full-time officer positions with civilian personnel. All this determines the need to reform the legislation on the legal status of civilian personnel, as well as the formation at the federal level of legal acts (federal laws) that determine their status, with the aim of

Lew unification of legal regulation.

Currently, civilian personnel, in accordance with the Federal Law "On Defense", are treated on an equal basis with military personnel to the personnel of the Armed Forces of the Russian Federation. They are divided into three categories: 1) federal state civil servants who have undertaken the obligation to perform civil service in positions of state civil service in the Armed Forces of the Russian Federation; 2) persons undergoing alternative civilian service; 3) persons working on the basis of an employment contract in military units and other military formations.

The legal status of state civil servants and persons undergoing alternative civil service is regulated in sufficient detail by normative acts. Wherein legal status persons who have concluded an employment contract for work in military units and organizations is not defined and is characterized by the presence of additional burdens. So, citizens working in peacetime in military units as civilian personnel of the Armed Forces of the Russian Federation are subject to priority registration with military units. As A.G. Tishchenko, the uniqueness of the position of civilian personnel lies in the practical impossibility of career growth. A citizen hired by the Armed Forces must be mentally prepared to fulfill the duties of the position to be filled, up to and including dismissal. AT best case(in the presence of vacant position and relevant recommendations), he will be appointed to a higher position. Obviously, such problems do not concern public civil servants, since the law defines the procedure for promotion for them, and persons undergoing alternative civil service, due to the temporary nature of the duties they perform.

In addition, there are points regarding the legal status of civilian personnel of the RF Armed Forces that are not taken into account in the current legislation. Thus, the Federal Law "On Combating Corruption" establishes the obligation of state and municipal employees to annually submit information on income, property and property obligations. Moreover, this obligation is established not only in relation to the employees themselves. Their spouses and minor children are also required to provide relevant information. A similar requirement is established in relation to the

the replacement of which gives the person concerned the opportunity to derive an undue advantage from the powers granted to him. The list of positions of the federal state civil service in the Ministry of Defense of the Russian Federation and the list of positions of military personnel holding corruption-prone positions are defined by regulations. At the same time, the corruption potential of positions of civilian personnel of the Armed Forces of the Russian Federation from among persons working in military organizations on the terms of an employment contract has not been determined.

Insufficient attention of the legislator to this issue gives rise to a situation where information on income is provided on the condition that the position is filled by a military person, and in the case of replacement by a person from among the civilian personnel of the Armed Forces of the Russian Federation - no. However, the corruption potential of the position remains unchanged regardless of who occupies it - a civil servant, a military serviceman or a person working in a military organization on the basis of an employment contract.

These facts allow us to assert that the current legislation does not take into account the peculiarities of the legal status of civilian personnel of the Armed Forces of the Russian Federation, which leads to insufficient guarantees of their rights, as well as to the impossibility of implementing measures to prevent corruption.

In addition, the presence of significant features of the legal status of civilian personnel of the RF Armed Forces, the performance of their duties in direct contact with military personnel, provides grounds for convergence of the legal status of state civil servants and civilian personnel.

As D. Ivannikov rightly notes, issues of the legal status and social protection civilian personnel of the RF Armed Forces require scientific development in the light of the implementation of measures to further improve the structure of the Armed Forces of the Russian Federation and strengthen the defense capability of the state.

In the author's opinion, what is required is not just a revision of the existing regulations that fix the legal status of civilian personnel of the RF Armed Forces. It is necessary to fundamentally change approaches to the status of civilian personnel of the Armed Forces, taking into account the burdens imposed on them and special conditions for the performance of duties.

The only right decision in this situation would be to establish a special status for the civilian personnel of the Armed Forces of the Russian Federation - the status of state civilians.

civil servants. Establishing this status will allow solving a number of existing problems of legal regulation. In addition, if civilian personnel are classified as state civil servants, it will be possible on legal grounds to establish the features of the legal regulation of labor, taking into account the nature of job duties and compensate for this with additional guarantees.

Civilian personnel of the Armed Forces of the Russian Federation, as well as civil servants, ensure the activities of the Armed Forces. Only the nature of duties is different: the activities of civil servants are aimed at the implementation of managerial functions, and civilian personnel - at the direct support of the activities of military personnel, the performance of duties necessary to ensure normal service conditions, but not directly related to ensuring the defense and security of the country.

Thus, it is necessary to systematize legislation that determines the legal status of civilian personnel of the Armed Forces of the Russian Federation, on the basis of which it is possible to determine the range of categories of civil servants, as well as differentiation of their legal status, taking into account the functions they perform, based on the role and importance of the latter for society and the state.

1. Military law: textbook / ed. V.G. Strekozova, A.V. Kudashkin. M., 2004. 305 p.

2. Efremov A.V. On some issues of the application of labor legislation in a military unit // Law in the Armed Forces. 2010. No. 5. S. 75-78.

3. Efremov A.V. Problematic issues of the execution of a court decision on the reinstatement of an employee at work in a military unit // Landmark. 2010. No. 1. S. 58-60.

4. Ivannikov D. Personnel non grata // Landmark. 2010. No. 9. P. 40-45.

5. Kovalev V.I. Protection of labor rights of civilian personnel of budgetary institutions of the Ministry of Defense of the Russian Federation, military units (organizations) upon dismissal // Law in the Armed Forces. 2009. No. 8. S. 75-78

6. Kovalev V.I. General characteristics of the development of legislation on the labor of civilian personnel of the Armed Forces of the Russian Federation // Law in the Armed Forces. 2007. No.

7. Koryakin V.M. Corruption in the Armed Forces: theory and practice of counteraction: monograph. M., 2009. 260 p.

8. Mazhuga E.Yu. Protection of labor rights and interests of civilian personnel of the Armed Forces of the Russian Federation in resolving individual labor disputes // Law in the Armed Forces. 2007. No. 3.

9. On measures to strengthen the rule of law in labor relations in the Armed Forces of the Russian Federation [Electronic resource]: order of the Minister of Defense of the Russian Federation of February 23, 1996 No. 85 // Military law: [website]. TSK: http://www.voenprav.ru/doc-3604-1.htm

10. On the List of positions of the federal state civil service in the Ministry of Defense of the Russian Federation, upon appointment to which citizens and upon the replacement of which federal state civil servants are required to provide information about their income, property and obligations of a property nature, as well as information about income, property and obligations of the property nature of their spouse (wife) and minor children: order of the Minister of Defense of the Russian Federation of December 8, 2010 No. 1705 // Russian newspaper. Feb 2, 2011

11. On combating corruption: federal law of December 25, 2008 N 273-F3 // Collection of legislation of the Russian Federation. 2008. No. 52 (part 1). Art. 6228.

12. On Defense: Federal Law of May 31, 1996 No. 61-FZ // Collection of Legislation of the Russian Federation. 1996. No. 23. Art. 2750.

13. On approval of the list of military posts to be filled by senior and junior officers in the Armed Forces of the Russian Federation, which are allowed to be filled by civilian personnel: Order of the Minister of Defense of January 28, 2004 No. 20 // Rossiyskaya Gazeta. Feb 28, 2004

14. On the approval of the Regulations on the drafting of citizens of the Russian Federation for mobilization assigned to military units (intended for special formations) for military service in military positions provided for by wartime states, or sending them to work as civilian personnel of the Armed Forces of the Russian Federation , other troops, military formations, bodies and special formations: Decree of the Government of the Russian Federation of December 30, 2006 No. 852 // Collection of Legislation of the Russian Federation. 2007. No. 2. Art. 380.

15. On the approval of the procedure for the submission by citizens and military personnel applying for appointment to military positions in the Ministry of Defense of the Russian Federation, and by military personnel serving in the Ministry of Defense of the Russian Federation, information on income, property and obligations of a property nature: order of the Minister of Defense of the Russian Federation dated October 10, 2009 N 1090 // Rossiyskaya Gazeta. 2009. 24 Nov.

16. Tishchenko A.G. Is it easy to be a civilian employee of the Armed Forces...// Law in the Armed Forces. 2007. No. 4. S. 46-47.

17. Labor Code of the Russian Federation: Federal Law of December 30, 2001 No. 197-FZ // Collection of Legislation of the Russian Federation. 2002. No. 1. Part 1. Art. 3.