The constitutional human right to work and the mechanism of its implementation in the russian federation dmitry alexandrovich radchenko. The right to work and the problems of its judicial protection at the present stage mikhail ivanovich stroganov Forms of realization of the right to work
Freedom of labor is recognized as the most important principle of labor law. This principle is proclaimed in Art. 37 of the Constitution of the Russian Federation and recognized by the international community. Freedom of labor is manifested, first of all, in giving a person the opportunity to freely dispose of his abilities for work, to choose a type of activity and profession.
The RF Constitution does not provide for the obligation to work. Every citizen can work in his chosen field of activity or refuse to participate in labor. In accordance with the Law of the Russian Federation of April 19, 1991 N 1032-1 "On employment of the population in the Russian Federation" unemployment of citizens cannot serve as a basis for bringing them to administrative or other liability. A citizen can freely choose the type of labor activity: to be engaged in entrepreneurship, to work on the basis of civil law contracts (work contract, assignment, paid services, author's contract) or under an employment contract.
In the sphere labor relations freedom of labor is manifested primarily in the contractual nature of labor and is reflected in the sectoral principle of labor law - the principle of freedom employment contract... The only basis for the emergence of labor relations is the agreement of the parties - an employment contract. The employee has the freedom to terminate the employment contract.
Every person in Russia has the right to work in conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination and not lower than the minimum wage established by federal law, as well as the right to protection from unemployment. Every citizen of the Russian Federation has the right to rest. A person working under an employment contract is guaranteed the length of working hours, days off and holidays, paid annual leave.
All employees are guaranteed equality of opportunity, which is ensured by the establishment of benefits and guarantees for selected categories workers in particular need of social protection due to physiological characteristics (women, minors), health status (disabled people), social status (workers with family responsibilities), performance job responsibilities in harmful or dangerous conditions, etc.
The Constitution of the Russian Federation recognizes the right to individual and collective labor disputes using the methods of resolving them established by federal legislation, including the right to strike (Article 37).
However, it is not enough to proclaim any rights and establish guarantees, you need to know how to implement them. The main thing in the problem of human rights today is not theory, but practice, which presupposes the creation of the necessary conditions, guarantees, mechanisms for the realization of socio-economic human rights. It is important to eliminate direct violations of rights, the reasons that give rise to them, to put barriers on the path of abuse and arbitrariness in relation to the rights of citizens, to strengthen their protection and protection by the authorities.
There are many reasons for violations of rights at work. One of them is the lack of a strict system of procedures and protection mechanisms. Protection of law means the ability of the state and its executive bodies to protect certain human rights and guarantees.
Currently, the Russian economy has two legal regime regulation of labor relations - the labor law fixed in the legislation for budgetary organizations and the "ordinary" law for the new commercial sector. If in budgetary organizations labor legislation is somehow respected, but in the new commercial sector the requirements of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) are not always met. In small and medium-sized businesses, civil law relations are widespread, because it is convenient for the employer (there is no need to comply with all guarantees established in labor legislation).
Growth in SMEs Exacerbates Security Challenges legal rights hired workers. In these organizations, trade union organizations are usually not created, commissions for labor disputes, i.e. there are no bodies that should represent and protect the interests of workers. Legal insecurity plus legal ignorance forces people to accept any conditions of the owner. The number of bonded contracts is growing, which means that the number of socially unprotected workers is also growing.
In accordance with Part 2 of Art. 45 of the Constitution of the Russian Federation, everyone has the right to defend their rights in all ways that are not prohibited by law. The state guarantees the protection of human and civil rights and freedoms in the Russian Federation.
In particular, in the event of a delay in payment wages for a period of more than 15 days, the employee has the right, after notifying the employer in writing, to suspend work for the entire period until the payment of the delayed amount (Article 142 of the Labor Code of the Russian Federation). Perhaps such actions of employees will stop the violations of labor rights committed by the employer. No one can force an employee to work for free, so the actions of employees who refuse to perform labor functions in response to non-receipt of wages will be recognized as legal.
An employee has the right to appeal against the fact of discrimination in labor relations, including unjustified refusal to hire (Articles 64, 391 of the Labor Code of the Russian Federation).
The thesis of the equality of the parties to an employment contract is rightly criticized. The relationship between them is actually built on the basis of the employee's subordination to the employer. In the current economic situation, workers do not risk openly defending their rights and coming into conflict with the employer, since filing a complaint against the owner threatens to lose their job, therefore, it is often more profitable for the victim to refuse to exercise the rights granted by law than to enter into a dispute.
Any recourse by an employee to the court (for example, regarding reinstatement at work, payment of forced absenteeism) is considered by the employer as an undesirable and abnormal phenomenon, and, most often, such a “daredevil” will be prosecuted by him. Employees reinstated at work by a court decision know that they can be fired again, but on some other basis.
In these conditions, it is necessary efficient system legal guarantees ensuring the protection of the rights and interests of employees from misconduct employers.
If earlier employers - individual entrepreneurs were exempted from the obligation to maintain work books, now they, in accordance with the amendments to the Labor Code of the Russian Federation, will have to keep work books for their employees. Legislators equated them with organizations in relation to other rights and obligations, in particular, on the conclusion of collective agreements, termination of employment contracts and on many other issues, in particular, they are given the right to terminate an employment contract in the event of a reduction in the number or staff of employees.
The procedure for calculating the average daily earnings for paying for vacations and paying compensation for unused vacations has been changed. Now specified average earnings will be calculated for the last 12 calendar months (and not three months) by dividing the amount of accrued wages by 12 and 29.4.
The list of cases of payment of severance pay in the amount of two-week average earnings has been supplemented. Specified benefit will be paid in two more cases: upon termination of an employment contract on the basis of the employee's refusal to continue working in connection with a change in the terms of the employment contract, as well as upon dismissal due to the recognition of the employee as completely incapable of work in accordance with medical report... Termination grounds changed apprenticeship agreement... Now it can be terminated at the end of the period of study or on the grounds provided for by this agreement.
In accordance with Part 1 of Article 37 of the Constitution of the Russian Federation, labor is free. Everyone has the right to freely dispose of their abilities for work, to choose their type of activity and profession.
In connection with the change in the economic and political regime in the development of the Russian Federation, representatives of legal science, as well as the practical direction of activity, have developed forms and grounds for the implementation of the main guarantee enshrined in the Constitution of the Russian Federation.
Form, in theoretical science, is understood as a way of external expression and internal organization phenomenon, that is, on the form provided by the branch of law, its further implementation depends. In accordance with Part 1 of Article 8 of the Civil Code of the Russian Federation, the basis for the emergence of legal relations between subjects of law are, among other things, an agreement and a transaction.
Depending on the sphere of origin of legal relations, they are given different shape reinforcement (civil, labor). For example, civil law relations include those that arise as a result of the conclusion of a civil law contract: paid services, work contracts, orders, etc. Labor relations arise not only as a result of the conclusion of an employment contract between the employee and the employer, but also on the basis of the employee's actual admission to the work performed with the knowledge or on behalf of the employer or his representative in the event that the employment contract was not properly executed. Due to its special importance, we will pay special attention to the latter of the considered ones.
According to Part 2 of Art. 67 of the Labor Code of the Russian Federation, if an employment contract is not drawn up in writing, then it is considered concluded if the employee has begun work with the knowledge or on behalf of the employer or his representative. With the actual admission of the employee to work, the employer is obliged to properly formalize labor relations with him in writing no later than three working days from the date of the actual admission of the employee to work.
It should be remembered that the representative of the employer in this case is a person who, in accordance with the law, other regulatory legal acts, constituent documents legal entity (organization) or local regulations or by virtue of an employment contract concluded with this person is empowered to hire employees.
I draw your attention, from the meaning of Articles 164, 165 of the Labor Code of the Russian Federation, it follows that inappropriate registration of labor relations between the employee and the employer (absence of a concluded labor contract) is the basis for refusal to provide guarantees and compensation to the employee.
Chapter 1. Concept, content and legal regulation activities of a private employment agency in the Russian Federation.
§ 2. The legal status and content of the activities of a private employment agency in the Russian Federation.
§ 3. The system of normative legal regulation activities of private employment agencies in the Russian Federation.
Chapter 2. The mechanism for the implementation of the constitutional right of citizens to work in the Russian Federation through a private employment agency.
§ 2. Rights and obligations of a private employment agency.
§ 3. Constitutional and legal guarantees for the implementation of the right to work in
Of the Russian Federation and the responsibility of a private employment agency.
Dissertation introduction (part of the abstract) on the topic "Implementation of the constitutional right of citizens to work in the Russian Federation in modern conditions"
Relevance of the research topic. The transition from a planned distribution system to a market system turned out to be very dramatic for the Russian labor market. In the context of the economic crisis, it is characterized by a pronounced tendency towards a reduction in official employment, high level overt and hidden unemployment, informal employment of all groups of the economically active population (employed and unemployed), a decline in the quality of the labor force.
The consolidation in the Federal Law "On Employment of the Population of the Russian Federation" 1, and then in the Constitution of the Russian Federation, the right of citizens to independently dispose of their ability to work without any coercion, had its reverse side lack of guarantees in employment from the state and the realization of the right to work. It is also very important that in modern society, when the motivation for finding a job is not only getting material sources existence, as well as the search for stability, opportunities for development and professional growth and self-realization, job search is becoming an increasingly difficult task.
In these conditions, the need to improve the efficiency of the existing system of measures aimed at supporting those in need of employment and the development of relevant labor market institutions is sharply increasing.
State bodies for employment have been and remain a privileged operating institution in the labor market modern Russia, which is fully consistent with international practice. However, public employment services, focused primarily on
1 Federal Law of the Russian Federation of 19.04.1991 No. 1032-1 "On employment of the population of the Russian Federation" // SZ RF. 1996. Art. 1915. the employment of the unemployed (especially those who have been unemployed for a long time and, therefore, the least competitive) and who have limited financial resources, cannot cover the whole variety of tasks that the labor market poses, they are not always ready to respond flexibly to all requests which he presents.
Under these conditions, the emergence in Russia at the end of the 90s of the last century of a completely new institution inherent in a market economy - private agencies that promote employment of the population - was natural.
Currently, in the Russian Federation, as in many countries of the world, private employment agencies are actively involved in the mechanism for the realization of the right to work by citizens and are gaining an ever-growing role in the labor market. At the same time, the main significance of the activities of private employment agencies is that they implement a unique social function-service: expanding choice in such a universally significant area as social and labor relations.
As a result, employment agencies become an effective means of establishing and self-regulation of the balance between employers, employees, government and society. For an employee, PrEA provides a wide range of jobs to choose from; employer - a wide selection of various performers; to the state - increasing the efficiency of business, which leads to an increase in national wealth and opportunities for social policy through an increase in tax revenues; society - a citizen with a positive attitude to life based on job satisfaction.
At the same time, non-governmental organizations promoting employment of the population in the Russian Federation still do not have a legal status regulated by law that determines their rights, obligations, and the procedure for interaction with other subjects of civil law relations. The lack of legal regulation of the activities of private employment agencies is manifested, first of all, in the fact that it leaves room for certain abuses on their part, which creates numerous obstacles to the effective exercise of the right to work by citizens.
At the same time, it should be recognized that in modern conditions, non-state employment services are the most important agents of the labor market and to one degree or another participate in its regulation. This presupposes the need to coordinate their efforts, to increase the efficiency of their activities in terms of solving the national task of promoting the employment of the population as an integral part of an active employment policy. The importance of these problems and the inadequacy of their development determined the choice of the topic of the dissertation research.
The degree of elaboration of the research topic. Versatile aspects, as well as topical problems of human rights are reflected in the works of state scholars S.A. Avakyan, S.S. Alekseeva, M.V. Baglaya, M.I. Baytin, N.S. Bondar, A.A. Belkina, N.V. Vitruk, L. D. Voevodin, V.T. Kabysheva, JIM. Karapetyan, Yu.V. Kudryavtseva, O.E. Kutafina, E.A. Lukasheva, V.O. Luchina, V.V. Maklakova, L.S. Mamut, B.C. Nersesyants, V.A. Patyulina, V.I. Radchenko, V.A. Rzhevsky, F.M. Rudinsky, O. G. Rumyantseva, T.A. Soshnikova, B.N. Strashun, Yu.A. Tikhomirova, B.N. Topornin, V.A. Tumanova, I.E. Farber, T. Ya. Khabrieva, V.A. Chetvernin, V.E. Chirkin, B.S. Ebzeeva, Yu.A. Yudina, L.S. Yavich and others.
The first works of domestic scientists related to the functioning of private employment agencies had the main purpose of describing the technological aspects of their activities, as well as analyzing the market for such services from the point of view of their applied use by consumers, including: A. Roshchin's handbooks of 1995, 1997 and works by V. .A. Polyakov, recruitment specialist in Russia.
Further development ideas about the role of non-state intermediaries in the labor market were reflected in the works of such authors as V.I. Aleshnikova, V. Kabalina, S.A. Kartashov, I. Kozina, I.A. Kokorev, K.A. Kravchenko, A. Kupchin, I.O. Tyurin, P.A. Obotnina, Yu.G. Odegov, A.B. Roshchin, S.B. Sinetsky, D. Storozheva.
Many leading Russian scientists researching employment problems, labor market politicians have expressed their positions in relation to institutions that are alternative state system employment, including: V. Breev, I. Bezgrebelnaya, A. Dadashev, A. Kashepov, R. Kolosova, L. Kostin, A. Nikiforova, F. Prokopov, M. Garcia-Iser, V. Kulikov, JI. Chizhova, S. Smirnov and others.
The definition of the role of labor market operators in the formation of the structure of employment of the population was reflected in the domestic social science. The works of A.M. Balkhanova, V.A. Losev, P.O. Nikiforova, H.A. Sergovimtseva, T. Veblen.
A large number of works on various forms of organizations that promote employment, and their impact on the labor market by Western authors: J. Albrecht, B. Axel, K. Goka, I. Gere, I. Bachinger, S. Rodrigo, A.T. Wong.
The works of these authors reveal the peculiarities of the activities of non-state employment services (recruitment agencies) and the establishment of competent relations between specialists of company personnel services and employees of private employment agencies. The state and prospects of their activities, work technology and role in the labor market are analyzed.
At the same time, there is still a lack of research that gives a holistic view of the role of labor market operators, the contradictory nature of the labor market, as well as their influence on the formation of the structure of employment of the population.
The object of the research is a set public relations emerging in the process of realization of the constitutional right of citizens to work in the Russian Federation in modern conditions.
The subject of the research is the constitutional and legal nature of the right to work; a set of normative legal norms governing the mechanism for the implementation of the constitutional right of citizens to work in the Russian Federation.
The purpose of the work is to investigate the peculiarities of the implementation of the constitutional right of citizens to work in Russia; study the activities of private employment agencies in Russia and develop theoretical and practical recommendations for improving their activities in the process of realizing the right of citizens to work.
Research objectives:
Determine the content of the right to work;
To reveal the essence and content of the activities of private employment agencies, as a special institution of the labor market; to conduct a study of the system of legal regulation of the activities of private employment agencies;
To generalize the foreign experience of the functioning of private employment agencies;
Define the role of private employment agencies in realizing the right to work;
Explore the mechanism for realizing the right to work through a private employment agency;
Consider the rights and obligations of private employment agencies, the peculiarities of interaction with other subjects of civil law relations;
Consider guarantees for the implementation of the right to work in the Russian Federation;
Identify shortcomings in the activities of private employment agencies and develop proposals and recommendations for improving their work.
The theoretical and methodological basis of the study is the general scientific dialectical method of cognition and the resulting private scientific methods: historical, systems analysis, sociological, logical, technical and legal, comparative legal, allowing to take into account the relationship and interdependence of the considered legal relations, to systematize them, as well as providing an integrated approach to their scientific analysis.
The scientific novelty of the work is determined by the fact that the dissertation for the first time at the monographic level conducted a study of the constitutional right of citizens to work as the main goal of a private employment agency. The paper defines the role of a private employment agency in the mechanism for realizing the right to work, considers the constitutional and legal guarantees for the realization of the right to work through a private employment agency.
The dissertation carried out a comprehensive study of topical problems of legal regulation of the activities of private employment agencies in the Russian Federation, substantiated the need to adopt a special legislative act regulating this type of social activity, developed theoretical and practical recommendations for resolving existing conflicts associated with the implementation of the right of citizens to work through a private agency employment in the Russian Federation.
The following provisions are submitted to the defense:
1. The author's definition of the right to work as a fundamental, inalienable, innate vital human ability to transform nature and himself, developing his abilities and satisfying needs, which are recognized, guaranteed and protected by the state and the international community and are enshrined in universally recognized international acts, and also in the constitutions of states.
2. Conclusion that the consolidation in the Constitution of the Russian Federation and in the Federal Law "On Employment of the Population of the Russian Federation", the rights of citizens independently without any coercion to dispose of their ability to work in the transition from a planned distribution to a market system, accompanied by a reduction official employment, a high level of overt and hidden unemployment, had its negative side the lack of guarantees in employment from the state.
3. The article substantiates the regularity of the appearance in Russia at the end of the 90s of the last century of an institution inherent in a market economy - private employment agencies (PEA).
4. Conclusion that a modern private employment agency is an enterprise that undertakes by contract and for monetary remuneration to provide individuals or client enterprises with services aimed at facilitating or facilitating their access to jobs and professional growth and to facilitate filling vacant jobs.
5. The main models of PrEA in the Russian labor market are: a) employment agencies whose activities are aimed at employing a customer - an employee, including outside the Russian Federation; b) recruiting agencies that recruit personnel according to specified criteria, as a rule, for several regular clients-employers; c) mixed agencies engaged in both the selection of personnel and the employment of citizens, for which the customers are both employers and employees.
6. Conclusion that at present in the Russian Federation, as in many countries of the world, PrEA are actively involved in the mechanism of citizens' realization of the right to work and occupy an ever-growing role in the labor market. At the same time, the main significance of the activities of PrEA is that they implement a unique social function-service: expanding choice in such a universally significant area as social and labor relations. As a result, PrEA become an effective means of establishing and self-regulation of the balance between employers, employees, government and society. For the employee, a private employment agency provides a wide range of job choices; employer - a wide selection of various performers; to the state - increasing the efficiency of business, which leads to an increase in national wealth and opportunities for social policy through an increase in tax revenues; society - a citizen with a positive attitude to life based on job satisfaction.
7. The conclusion that the practice of exercising the right to work through a private employment agency in the Russian Federation indicates that the existing significant disadvantages legislative regulation in this area negatively affect the observance of the rights and social protection of citizens. In this situation great importance has the creation of solid legislative guarantees contained in the norms of federal laws that strictly regulate the activities of PrEA on the territory of the Russian Federation, and ensure the exercise of the democratic rights and freedoms provided to citizens.
8. The necessity of the development and adoption of special federal laws on private employment agencies, as well as on the protection of the rights of workers hired by private employment agencies in order to provide their labor to third parties determining legal status private employment agencies, conditions and content of their activities; forms and methods of interaction with public authorities; mechanisms of accounting and control over activities and responsibility for violation of current legislation.
9. It is proposed to regulate the PrEA status as follows:
PEA is only entity;
PrEA activities must be subject to special licensing;
It is advisable that PrEA provide financial guarantees that they will fulfill their financial obligations to contingent employees.
It is proposed to establish the following prohibitions and restrictions:
A ban on the replacement of employees on strike by agency workers,
Restriction of the right of the user enterprise to attract contingent workers, if in the organization during the past year there have been mass layoffs affecting employees for whose specialties an application has been submitted to a private employment agency, a ban on the substitution of contingent workers for positions that provide for the signing of obligations on behalf of the user enterprise,
A ban on the employment of precarious workers for positions related to work in especially hazardous conditions and requiring special knowledge and skills in the field labor protection,
A ban on hiring agency workers to perform permanent, specialized work for a given enterprise. List of statutory acceptable cases the use of agency labor can be further limited in collective agreements concluded by user enterprises with their permanent employees.
The theoretical significance of the work lies in the fact that its conclusions, suggestions and recommendations represent a certain contribution to the development of knowledge about the role of private employment agencies in the realization of the right of citizens to work and their influence on the formation of the structure of employment of the population.
The theoretical conclusions of the study are based on the results of generalizing the scientific positions of scientists on the range of issues under study, a critical analysis of matter, as well as the practice of implementing the corresponding group of legal norms.
The practical significance of the research results is determined by the critical approach taken in the work to assessing the current legislation, as well as the practice of its application, and lies in the fact that the theoretical and methodological developments can be used in the development of state policy in relation to private employment agencies as active participants in the labor market.
Approbation and implementation. The main provisions of the dissertation research were reflected in three scientific publications, speeches at scientific and practical conferences, including: "Agency" employment: a view from the supply of labor ", November 21, 2007, Moscow; " Modern tendencies development of labor law and social security law ”, January 18-20, 2008, Moscow; “Private Employment Agencies - Role, Governance, Regulation and Execution”, February 19, 2008, Moscow. I
Conclusions and suggestions made in the dissertation research were used in the practical activities of LLC " One center employment ", in the scientific and teaching activities at the Research Institute of State Science and Local Self-Government and the Moscow University for the Humanities.
The structure of the thesis includes an introduction, two chapters that combine six sections, a conclusion, an appendix and a list of references.
Similar dissertations in the specialty "Constitutional law; municipal law ", 12.00.02 code VAK
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Conclusion of the thesis on the topic “Constitutional law; municipal law ", Vdovin, Georgy Yurievich
Conclusion
Labor, as a philosophical category, is a conscious, purposeful, social activity of a person to transform nature and himself, in which his abilities and needs develop. Through labor, using his abilities, a person satisfies his needs, without which his life itself would be impossible, without which it would be impossible for a person to produce and reproduce himself as a social being.
The right to work is the fundamental, inalienable, innate vital capabilities of a person to transform nature and himself, developing his abilities and satisfying his needs, which are recognized, guaranteed and protected by the state and the international community and are enshrined in universally recognized international acts, as well as in constitutions states.
Under the constitutional and legal guarantees for the realization of the right to work in the Russian Federation, one should understand the totality of the norms of constitutional law that ensure the actual realization of human interests in the world of work, as well as their protection from possible violations... Constitutional guarantees for the realization of the right to work in the Russian Federation can be classified into the following groups:
Fundamental principles and norms-guarantees underlying the legal regulation of the relationship between the individual and the state in the Russian Federation;
The fundamental principles of the realization of the right to work in the Russian Federation enshrined in the Constitution of the Russian Federation and regulatory legal acts;
Guarantees for the protection of violated interests.
The consolidation in the Federal Law "On Employment of the Population of the Russian Federation" 1, and then in the Constitution of the Russian Federation, the right of citizens to independently dispose of their ability to work without any coercion, had its reverse side the lack of guarantees in employment from the state and the exercise of the right to work ... In these conditions, the need to improve the efficiency of the existing system of measures aimed at supporting those in need of employment and the development of relevant labor market institutions is sharply increasing.
In the Russian Federation, as in many countries of the world, PrEA actively participate in the mechanism for the exercise of the right to work by citizens and are gaining an ever-growing role in the labor market. At the same time, the main significance of the activities of PrEA is that they implement a unique social function-service: expanding choice in such a universally significant area as social and labor relations. As a result, PrEA become an effective means of establishing and self-regulation of the balance between employers, employees, government and society. For an employee, PrEA provides a wide range of jobs to choose from; employer - a wide selection of various performers; to the state - increasing the efficiency of business, which leads to an increase in national wealth and opportunities for social policy through an increase in tax revenues; a citizen society with a positive attitude to life based on job satisfaction.
At the same time, PrEA in the Russian Federation still do not have a legal status regulated by law, which determines the procedure for their interaction with other subjects of civil law relations. At the same time, the need for interference of law in this area
1 Federal Law of the Russian Federation of 19.04.1991 No. 1032-1 (as amended on 18.10.2007) "On employment of the population of the Russian Federation" // Collected Legislation of the Russian Federation - 1996 - Art. 1915. social relations objectively exist. During the global financial crisis, the number of unemployed increases every month. In this regard, the number of abuses by PrEA is increasing (corruption; violation of contractual obligations; unfair competition; violations of ethical norms), and guarantees of the realization of the rights of citizens who have applied to the services of PrEA are reduced.
In this situation special meaning has the creation of solid legislative guarantees contained in the norms of federal laws that strictly regulate the activities of PrEA on the territory of the Russian Federation, and ensure the exercise of the democratic rights and freedoms provided to citizens.
Legalization of PrEA activities in Russia is necessary and requires significant legal work:
Development and adoption of special federal laws on private employment agencies, as well as on the protection of the rights of workers hired by private employment agencies in order to provide their labor to third parties;
Amendments to the Law "On Employment of the Population in the Russian Federation" to regulate the activities of private employment agencies;
Analyzing and changing a whole layer of federal laws and by-laws (Labor Code, Civil Code, tax code, Licensing Law, etc.).
Legal documents must register PrEA as independent full participants in the labor market; determine the legal status of PrEA and the content of their activities; forms and methods of interaction between PrEA and public authorities; the line between law-abiding PrEA and unscrupulous intermediaries in the market of the services in question; introduce mechanisms for accounting and control over the activities of PrEA.
List of dissertation research literature Candidate of Legal Sciences Vdovin, Georgy Yurievich, 2009
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1. Labor is free. Everyone has the right to freely dispose of their abilities for work, to choose their type of activity and profession.
2. Forced labor is prohibited.
3. Everyone has the right to work in conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination and not lower than the minimum wage established by federal law, as well as the right to protection from unemployment.
4. The right to individual and collective labor disputes using the methods for resolving them established by federal law, including the right to strike, is recognized.
5. Everyone has the right to rest. A person working under an employment contract is guaranteed the duration of working hours, days off and holidays, and paid annual leave established by federal law.
Commentary on Article 37 of the Constitution of the Russian Federation
This article 37 proclaims those constitutional rights and freedoms, part of which every person in Russia has, regardless of his occupation, and partly only those individuals who work under an employment contract for a specific employer. The constitutional rights and freedoms listed in Art. 37, is not all the rights and freedoms that a person is endowed with in the world of work, but only the main ones. Most human rights and freedoms in this area are included in the category of so-called socio-economic human rights, which do not belong to him from birth, but are acquired by entering into a legal relationship regarding the use of his abilities to work, for example, by concluding an employment contract.
A specific list of socio-economic rights of a citizen is formed by each state independently, in individually, on the basis of taking into account the maximum limits of the resources available to him (part 1 of article 2 of the International Covenant on Economic, Social and Cultural Rights). In this sense, the volume of socio-economic rights of citizens of economically prosperous states usually exceeds the volume of similar rights in underdeveloped or developing countries.
At the same time, due to the requirements of the norms international law some socio-economic human rights and freedoms are placed on a par with civil and political rights, which means the need to ensure their equal accessibility and effective legal protection in all countries of the world community, regardless of their economic and financial resources (Article 2 of the International Covenant on civil and political rights). These types of rights include:
a) the right to work, to free choice of work, to fair and favorable working conditions and to protection from unemployment;
b) the right to equal pay for equal work without any discrimination;
c) the right to just and satisfactory remuneration, ensuring an existence worthy of a person for himself and his family, and supplemented, if necessary, by other means of social security;
d) the right to create trade unions and join trade unions to protect their interests;
e) the right to rest and leisure, including the right to reasonable limitation of working hours and paid periodic leave (Articles 23 and 24 of the Universal Declaration of Human Rights of 1948).
All these rights, as well as human freedoms in the labor sphere, are reflected in the commented article 37 of the Constitution of Russia.
1. Among the first part 1 of Art. 37 calls freedom of work, which should be considered as a universal constitutional and legal principle applicable to all types of law-abiding work activities of a person. Under labor activity in this case I mean any kind or type of human activity that involves the use and use of his physical and (or) intellectual abilities, knowledge and skills both on a reimbursable and free basis, both in an episodic and in a periodic or systematic manner, both on on the basis of an employment contract, and on the basis of any other legal organizational form of attracting people to work allowed by law. Regardless of the type of use of their abilities to work, everyone has the right to dispose of them freely, and mainly in order to satisfy their personal interests and needs in any chosen place of residence (see).
The freedom of labor proclaimed by the Constitution refers to those socio-economic phenomena that must be present in a market economy for its normal functioning and progressive development. Because of this, freedom of work must be considered as a fundamental principle. market economy, which is the only possible appropriate economic foundation for the effective functioning of a democratic the rule of law, which should be the Russian Federation in force. Due to the fundamental role this principle in modern Russia, it is appropriate to recall that in the conditions of the non-market state-planned economy, on which the Soviet Union was based, another principle is required as the main principle - the universality of labor, which implies the imposition of a constitutional obligation on every able-bodied person to work and the application of measures legal responsibility to all persons who do not fulfill this duty. The implementation of this principle in practice is always associated with the use of forced labor.
Others essential principle, on which the market economy is also based, is the freedom to use one's abilities and property for entrepreneurial and other not prohibited by law economic activity(cm. ). As a rule, in the course of this activity, wage labor, the due basis of which in a democratic and legal state is a freely and voluntarily concluded agreement. Hence it follows that legal expression The constitutional principles of freedom of labor and freedom of economic activity is the principle of freedom of contract, which, having a constitutional and universal character, is of decisive importance for the scope and use of any type of labor activity, including those carried out on the basis of an employment contract. In the latter case, this principle is transformed into the principle of freedom of the labor contract.
However, it should be noted that the wording of this principle is not reproduced in Art. 2 of the Labor Code among the basic principles of legal regulation of labor relations and other relations directly related to them. This circumstance, of course, does not mean that the principle of freedom of an employment contract does not apply in the sphere of relations, regulated branches of labor law. It undoubtedly operates in this area, but with certain restrictions, the presence of which, in particular, is clearly evidenced by the content of the norms of Russian labor legislation governing the conclusion, amendment and termination of an employment contract at the initiative of the employer.
The essence of these restrictions is narrowing the possibilities of the employer, as one of the parties to the employment contract, to build their relationship with the employee, as the other party to this contract, solely on the basis of equality, freedom and harmonization of will (see Resolution of the Constitutional Court of the Russian Federation of 06.06.2000 N 9-P * (467)). In the reality Russian employer does not have free will neither when concluding, nor when changing, and even more so when terminating an employment contract. This is confirmed by the fact that the right of the employer to terminate the employment contract with his employee is linked to a greater extent by the norms of labor legislation not with the will of the employer, but with the actual presence of certain circumstances combined into an exhaustive list, qualified by these rules as specific grounds for termination of the employment contract at the initiative of the employer ( Article 81 of the Labor Code).
Thus, it can be stated that in the conditions of today's Russian legal reality, the operation of the principle of freedom of an employment contract, the content of which should be the freedom of expression of the will of its parties to conclude, amend or terminate this contract, is significantly limited, at least for the employer. This circumstance raises the question of the constitutionality of such restrictions. Since by virtue of any restrictions on rights and freedoms should be exercised only to the extent necessary in order to protect the foundations constitutional order, the rights and legitimate interests of others (see commentary to Art. 55), insofar as the limitation economic freedom employer not motivated by the stated purposes, in principle, should not take place. However, if, in contradiction with this requirement, it still exists, then this may indicate that the restriction of his rights and freedoms is unreasonable or disproportionate, which, in turn, creates the basis for the recognition of the normative provisions of the relevant legal norms as unconstitutional. The Constitutional Court of the Russian Federation has made such decisions more than once (see: Resolutions of 01.24.2002 N 3-P, of 03.15.2005 N 3-P; Definition of 01.16.2007 N 160-O * (468)).
It should be noted that these decisions have introduced a new trend towards expanding the freedom of an employment contract in the legal regulation of labor and relations directly related to them, which, by the way, is really necessary in the market economy to give this regulation the necessary flexibility. It is highly desirable that the same tendency be evident in the activities of the domestic legislator, who would also find it useful to realize that in economically prosperous countries the flexibility of the contractual regulation of labor relations sanctioned by law is recognized as one of the most important conditions that directly determine the efficiency and competitiveness of the national economy.
2. Inherent in everyone, by virtue of part 1 of the commented article 37 of the CRF, freedom of labor implies not only the possibility of a person's choice of the type of labor activity, the organizational and legal form of using their abilities to work and the place of application of this labor, but also the possibility of refusing to perform any -or labor in general. However, this version of the behavior of a particular person should not entail for him in modern Russian conditions no negative consequences, since in accordance with Part 2 of Art. 37 forced labor is prohibited in our country. In this sense, this prohibition should be considered as constitutional guarantee freedom of labor.
It should be noted that the prohibition of forced labor is one of the fundamental principles of not only Russian, but also international law. In particular, it is enshrined in the International Covenant on Civil and Political Rights (paragraph 3 of article 8), the Convention for the Protection of Human Rights and Fundamental Freedoms (paragraph 2 of article 4) and the Declaration on Fundamental Principles and Rights at Work and the Mechanism its implementation, which was adopted by the International Labor Conference (ICL) in 1998. As the main principle of legal regulation of labor relations and other related relations, this prohibition is also reproduced in the sectoral Russian legislation, which is now represented by the Law of the Russian Federation of 19.04.1991 N 1032- 1 "On employment of the population in the Russian Federation" (as amended on 18.10.2007) and TC. At the same time, the Labor Code not only classifies this principle as one of the basic principles of legal regulation of labor and relations directly related to them (Article 2), but also devotes a separate Article to its legal regulation. 4 "Prohibition of Forced Labor". Such isolation of the legislative regulation of this principle in a separate article should be regarded as an indicator of its special significance, which the Russian legislator considered necessary to emphasize once again in this way.
It should also be noted that the most detailed legal regulation of the prohibition of forced labor is contained not in the Labor Code, but in acts of international labor law, which include two conventions The International Organization Labor (ILO): 1930 Convention No. 29 "On Forced or Compulsory Labor" and 1957 Convention No. 105 "On the Abolition of Forced Labor". Both conventions have been ratified by Russia.
Within the framework of the Russian legal system the most detailed definition of forced labor is given in Part 2 of Art. 4 TC. It is almost entirely based on the wording given in paragraph 1 of Art. 2 of ILO Convention No. 29, which states that the term "forced or compulsory labor" means any work or service demanded of a person under the threat of any punishment for which that person has not voluntarily offered his services. At the same time, it should be noted that there are certain differences in the characteristics of forced labor under international and Russian labor law. So, unlike the definition given by the Labor Code, Convention No. 29, both in its name and in its content, speaks not only of forced, but also of compulsory labor. At the same time, this Convention does not attach any independent meaning to the term "compulsory labor" in comparison with the term "forced labor", by virtue of which these terms should be considered as synonyms. By the way, based on this, it can be concluded that the use of only one term "forced labor" by Russian legislation is legitimate.
At the same time, it makes sense to pay attention to the fact that the characteristic of forced, or compulsory, labor, presented by Convention No. 29, contains two signs, which include: a) the threat of punishment for failure to perform the required work or service and b) the absence of a voluntary offer an employee of their services to perform that work or service. In turn, the Labor Code is limited in the characterization of forced labor by indicating only one feature, which is the threat of the use of any punishment (violent influence) for failure to perform the required work. However, this circumstance, probably, should not be regarded as a violation by the domestic legislator of the provisions of Convention No. 29, it is simply necessary to proceed from the fact that in this case he took a more stringent approach to qualifying specific labor as compulsory. If, according to the norms of international labor law, this requires the simultaneous presence of two signs, then according to Russian legislation, one is sufficient in the form of a threat of the use of any punishment (violent influence).
In the event of his involvement in forced labor, everyone has the right to refuse to fulfill it, including in connection with a violation of the established deadlines for the payment of wages or payment of it not in full, as well as in connection with the emergence of an immediate threat to the life and health of the employee due to violation of labor protection requirements and, in particular, through its failure to provide means of collective or individual protection in accordance with the established norms (part 3 of article 4 of the Labor Code).
Certain types of work required of a worker bear similarities to forced labor, and yet they are not recognized as a form of it. The list of such works is contained in Part 4 of Art. 4 TC. In general, it is consistent with a similar list contained in Art. 2 of the ILO Convention No. 29. However, it should be borne in mind that the list given in the Convention is somewhat wider than that given in Art. 4 of the Labor Code, since in comparison with it, it additionally includes: a) any work or service that is part of the usual civic obligations of citizens of a fully self-governing country; b) minor works of a communal nature, i.e. work performed for the direct benefit of the collective by members of the collective and which therefore can be considered the normal civic obligations of the members of the collective, provided that the population itself or its direct representatives have the right to express their opinion on the appropriateness of these works.
Despite the fact that our legislator refused to reproduce in the Labor Code the wording of these exceptions from the types of forced labor, they have legal force in relation to our country, which follows from the fact of ratification of the said Convention. This allows us not to consider the traditional for our country all kinds of "subbotniks" and "resurrection days" as forced labor, of course, subject to the voluntary participation of citizens in their conduct. This also implies the conclusion that forced labor should not be recognized as those works that are performed for the direct benefit of the collective by members of this collective for the improvement and sanitary and hygienic prevention of buildings and territories occupied, for example, by schools, boarding schools, children's and youth health camps, as well as institutions in charge of the execution of administrative and criminal penalties, provided that representatives of these groups are given the right to express their opinion on the advisability of such work (see Definition of the Constitutional Court of the Russian Federation of 03.24.2005 N 152-О).
3. For the overwhelming majority of representatives of modern civilization, labor is the main source of livelihood. By virtue of this, every person capable of working should have the right to work, and such a right is indeed granted to him by Art. 23 of the Universal Declaration of Human Rights, and the citizens of our country also part 3 of Art. 37 of the Constitution. The possession of the constitutional right to work provides everyone with the opportunity to earn a living in work that he freely chooses or freely agrees to (Article 6 of the Covenant on Economic, Social and Cultural Rights). In turn, the implementation given right allows everyone to satisfy the constantly existing need to create material prerequisites for their normal existence and all-round development through earned funds.
The legal content of the right to work forms a number of powers, the implementation of which provides a person with the opportunity to choose a type of labor activity, profession or specialty, determine the place of application of his labor both within and outside the Russian Federation and choose a counterparty under an employment contract (an individual or legal entity, state or municipal authority etc.).
In a market economy, the right to work is not subjective in the sense that it is not complemented by someone's obligation to provide each specific person with the work he desires. This conclusion confirmed and The Constitutional Court, which in one of his formulated legal positions noted that the right to freely dispose of one's abilities for work, to choose a type of activity and profession does not imply the obligation of the state to ensure the occupation of a particular position by a citizen (see Definition of 12.21.2000 N 252-О * (469)).
At the same time, the right of a citizen to work is under the special protection of the state, which is manifested, on the one hand, in providing every working person with working conditions that meet the requirements of safety and hygiene, payment of remuneration for work without any discrimination and not lower than that established by federal law. the minimum wage, labor protection and employment promotion, and on the other - in providing various support measures to persons who have lost their jobs and earnings. It follows that the Constitution grants everyone not only the right to earn a living in work that he freely chooses or to which he freely agrees, but also the opportunity to exercise this right in conditions that meet the requirements of safety and hygiene.
The most detailed description of the content of modern legal norms governing labor protection relations for workers can be obtained on the basis of an analysis of the content of the articles of the Labor Code, placed in Sec. X "Labor protection". In accordance with Art. 209 labor protection is defined as a system of preserving the life and health of workers in the process of work, including legal, socio-economic, organizational and technical, sanitary and hygienic, treatment and prophylactic, rehabilitation and other measures. The need to carry out all these activities is assigned, mainly as specific responsibilities, to each employer (Article 212 of the Labor Code). The Labor Code also provides each employee with opportunities to protect their right to work in conditions that meet government regulations on labor protection. For this purpose, all workers are endowed with a number of rights in the field of labor protection (Art. 219). Establishing state regulatory requirements for labor protection of employees, Russian state at the same time contributes to ensuring the safety of work for their life and health.
The natural right of everyone who uses their labor force on a contractual basis in the interests of another person, is the right to remuneration for work. In a market economy, the specific amount of this remuneration is determined primarily by the agreement of the parties to the employment contract. However, it is well known that their economic interests, as a rule, do not coincide, since the employer is interested in reducing his expenses on the employee's wages, and the employee is interested in increasing the amount of remuneration for his labor. Practice shows that the resolution of this conflict of interest is carried out, as a rule, from the position of the strength of the employer, who has an economic advantage, which he uses to minimize the wages of workers, who are often forced to agree to low-paid work due to the reality of the prospect of being left without any paid work. Given this circumstance, part 3 of Art. 37 specifies the right of everyone to remuneration for work by the prohibition of any discrimination in the remuneration of workers and the obligation of the employer to pay this work at a level not lower than the statutory minimum wage. Such a prohibition is intended to promote the establishment of the principles of fairness in wage relations.
Labor of different value, of course, should be paid differently. Due to this, the current legislation allows for differentiation in the payment of various types of labor. This differentiation is also permissible in remuneration of one type of labor, but only depending on the qualifications of workers, as well as the complexity, quantity, quality and conditions of the work they perform (part 1 of article 129 of the Labor Code). In addition, the establishment of differences, exclusions, preferences, as well as the restriction of the rights of workers, which are determined by the inherent this kind labor requirements established by federal law, or due to the special care of the state for persons in need of increased social and legal protection (part 3 of article 3 of the Labor Code).
At the same time, it should be recognized as discrimination in wages, its differentiation, carried out on any of the grounds indicated, along with, in part 2 of Art. 3 TC. All the grounds of discrimination listed in this article of the Labor Code have one common feature- the lack of a particular circumstance, which became the basis for the differentiation of wages, connection with the business qualities of the employee or with the objective characteristics of his work. By virtue of this, the urgency or indefiniteness of the employment contract concluded with them cannot serve as a basis for a legitimate differentiation in the remuneration of employees (see Definition of the Constitutional Court of the Russian Federation of 03/06/2001 N 52-О), the loyalty of employees in relation to the authorities or representatives of the employer, participation or non-participation in labor disputes, strikes and other similar circumstances, qualities or properties of a person that discriminate against him in the field of remuneration for work.
With regard to the work of persons working under an employment contract, the constitutional right to remuneration for work is supplemented by the Labor Code with the principle of payment to everyone timely and in full a fair wage, ensuring a decent human existence for himself and his family and not lower than the minimum wage established by federal law (paragraph 7, article 2). The practical implementation of this principle can mean only one thing - in the Russian Federation as welfare state it is necessary to provide every conscientious and efficient working person with the opportunity to receive such remuneration for work, which would not be not only less than the prevailing in the country living wage, but also exceeded it as much as it is necessary to ensure a dignified existence for both the working person himself and his family. By the way, it is precisely this content that the international community invests in the right to work, which belongs to everyone by virtue of the Universal Declaration of Human Rights (paragraph 3 of Article 23) and the International Covenant on Economic, Social and Cultural Rights (Article 7). However, despite the fact that these international legal acts are an integral part of the Russian legal system (see commentary to Article 15), modern Russian legislation today establishes such a minimum wage that has not yet even reached the subsistence level.
As one of the most important constitutional rights, Part 3 of Art. 37 of the Constitution states the right of everyone to protection from unemployment. Unemployment deprives a person of the opportunity to exercise his right to work and thereby ensure a decent existence for himself and his family. For this reason, each state should strive to ensure the most complete and productive employment of the population, which is, in particular, the aim of the ILO Convention No. 122 of 1964 "On Employment Policy" and the ILO Convention No. 168 of 1988 "On the promotion of employment and protection from unemployment "* (470), which consider the promotion of full, productive and freely chosen employment as a primary task and an integral part of the economic and social policy of the state. Unfortunately, none of these conventions has been ratified by our state. Therefore, in terms of determining his current intentions in the field of protection against unemployment, one should refer to the Law of the Russian Federation "On Employment of the Population in the Russian Federation", which defines public policy in this area. As follows from the content of Art. 5 of this Law, the Russian state has not yet aimed at ensuring the most complete and productive employment for every citizen of Russia, therefore, it is limited in the relevant area of public relations by pursuing a policy of promoting the realization of citizens' rights to full, productive and freely chosen employment. This policy, in particular, is aimed at: ensuring equal opportunities for all citizens of the Russian Federation in the exercise of the right to voluntary work and free choice of employment; creation of conditions that ensure a dignified life and free development of a person; support of the labor and entrepreneurial initiative of citizens, carried out within the framework of the rule of law, promoting the development of their abilities for productive, creative work; implementation of measures to promote the employment of citizens experiencing difficulties in finding a job (disabled, minors, etc.).
In accordance with this policy, the state guarantees each citizen of the Russian Federation protection against unemployment through the provision of various measures social support, which include: payment of unemployment benefits, including during the period of temporary disability of the unemployed; payment of the scholarship during the period vocational training, advanced training, retraining in the direction of the employment service, including during the period of temporary disability; the opportunity to participate in paid public works(Articles 12 and 28 of the RF Law "On Employment of the Population in the Russian Federation").
4. Part 4 of the commented Art. 37 of the Constitution of the Russian Federation recognizes for everyone the right to individual and collective labor disputes using the methods of resolving them established by federal law, including the right to strike. The right to initiate an individual or collective labor dispute belongs only to those who work on the basis of an employment contract. For this reason, a detailed description of the implementation of this right is contained in the Labor Code, which devoted Ch. 60 "Review and Resolution labor disputes"and ch. 61" Consideration and resolution of collective labor disputes ".
An individual employee who believes that his or her labor rights have been violated by the employer has the right to appeal to the individual dispute resolution authorities. Individual labor disputes are considered by labor dispute commissions, justices of the peace and courts (Article 382 of the Labor Code of the Russian Federation). The Labor Dispute Commission is not an obligatory instance for the consideration of individual labor disputes, therefore, the employee has the right to apply directly to the magistrate or to the court, bypassing this commission.
Unlike individual labor disputes resolved in a jurisdictional manner, collective labor disputes are considered and settled by the disputing parties themselves within the framework of conciliation procedures carried out with the participation of a conciliation commission, mediator and (or) labor arbitration (parts 1 and 2 of article 398 of the Labor Code) ... Only workers represented by trade unions, their representative bodies or other representatives of workers employed by a particular employer and elected at a general meeting or conference of workers are vested with the right to put forward claims that serve as the basis for initiating a collective labor dispute (Part 1 of Art. 399, Art. 31 TC).
A strike, as a temporary voluntary refusal of employees to perform their labor duties, is one of the methods of resolving collective labor disputes, which, as a last resort, is applicable only at the initiative of employees in cases where conciliation procedures did not lead to the resolution of the collective labor dispute, or when the employer or employer's representatives shy away from participating in conciliatory procedures, do not fulfill the agreement reached in the course of resolving the labor dispute or do not fulfill the binding decision of the labor arbitration (part 2 of article 409 of the Labor Code).
The decision to declare a strike is made general meeting(conference) employees of the organization (branch, representative office or other separate structural unit), individual entrepreneur by the proposal representative body employees previously authorized by them to resolve a collective labor dispute (part 1 of article 410 of the Labor Code).
In accordance with Art. 455 TC are illegal and strikes are not allowed:
a) during periods 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, organizations (branches, representative offices or other separate structural units) directly in charge of ensuring the country's defense, state security, rescue, search and rescue, fire-fighting works, prevention or elimination natural Disasters and emergencies; v law enforcement; organizations (branches, representative offices or other separate structural subdivisions), directly serving especially dangerous types of industries or equipment, at ambulance and emergency stations;
b) in organizations (branches, representative offices or other separate structural divisions) directly related to ensuring the life of the population (energy supply, heating and heat supply, water supply, gas supply, aviation, railway and water transport, communications, hospitals), if strikes pose a threat to the defense of the country or the security of the state, the life and health of people.
Since labor legislation is attributed to the subjects of joint jurisdiction of the Russian Federation and its constituent entities, the constituent entities of the Federation have the right to adopt laws and other regulatory legal acts, which may introduce longer periods of rest in comparison with those provided for by federal legislation. Specific employers, who have the right to adopt relevant local regulations in this regard, have the same authority in relation to increasing the duration of rest of their employees.
Problem 1
Which of the listed employees is entitled to the establishment of part-time or shortened working hours?
- 1. 5th year student of the day department of the law faculty of the state university.
- 2. Disabled group II with recommendations of MSEC on the establishment of part-time work.
- 3. A mother raising a child at the age of 7.
- 4. A varnisher of a furniture factory.
- 5. University teacher
What are the differences between part-time and reduced working hours, explain how they are established and the legal implications.
Part-time work is a reduced working time. For persons with normal working hours, the 40-hour week is reduced to some limit set by common decision employee and employer. For persons with reduced working hours, the working hours are reduced based on the legally established norm. At the same time, if the merchant is obliged to set a shortened time for the employee, then the incomplete time depends entirely on the will of the parties. Buyanova M.O. Labor law of Russia. - M .: PROSPEKT, 2009.S. 235.
Established by the Labor Code and other regulations. In some cases, an employment or collective agreement, when hiring for the entire duration of the employment contract (for minor employees - up to 18 years of age).
Article 93 of the Labor Code of the Russian Federation. Part-time working hours.
By agreement between the employee and the employer, part-time work (shift) or part-time work week can be established both upon hiring and subsequently. The employer is obliged to establish part-time work (shift) or part-time work week at the request of a pregnant woman, one of the parents (guardian, trustee) who has a child under the age of fourteen (a disabled child under the age of eighteen), as well as a person exercising caring for a sick family member in accordance with a medical certificate issued in the manner prescribed federal laws and other regulatory legal acts of the Russian Federation.
When working on a part-time basis, the employee is paid in proportion to the time worked by him or depending on the amount of work performed by him.
Part-time work does not entail for employees any restrictions on the duration of the main annual paid leave, the calculation of seniority and other labor rights.
In accordance with the above, a mother raising a child at the age of 7 has the right to establish part-time working hours.
Reduced working time is a norm (less than 40 hours), established by law for certain categories of workers. Buyanova M.O. Labor law of Russia. - M .: PROSPEKT, 2009.S. 235.
Article 92. Labor Code of the Russian Federation Reduced working hours.
Reduced working hours are established:
for employees under the age of sixteen - no more than 24 hours a week;
for employees between the ages of sixteen and eighteen - no more than 35 hours per week;
for employees who are disabled of I or II groups - no more than 35 hours per week;
for workers engaged in work with harmful and (or) dangerous working conditions - no more than 36 hours per week in the manner established by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations.
The duration of the working time of students of educational institutions under the age of eighteen, working during the academic year in their free time from studies, cannot exceed half of the norms established by part one of this article for persons of the corresponding age.
This Code and other federal laws may establish reduced working hours for other categories of workers (pedagogical, medical and other workers).
Consequently, a disabled person of group II who has recommendations from MSEC on the establishment of part-time working hours, a painter of a furniture factory and a teacher of a higher educational institution is entitled to establish a reduced working time.
Reduced working hours can be established at the conclusion of an employment contract (registration for work) or later on the initiative of either party. The term is negotiated by the parties. If the regime is introduced at the initiative of the employer, the maximum period cannot exceed 6 months and can be formalized as additional agreement to the employment contract.
In connection with the reduction in the number of management personnel, the engineer of the supply department Kurochkina and the inspector of the personnel department Petukhova were fired, the dismissed went to court with a claim for reinstatement at work.
Kurochkina considered her dismissal unlawful because she has more seniority than the other two engineers in the department, and her performance is no worse. Petukhova referred to the fact that there are two dependents in her family: her mother is a pensioner and her son is a schoolboy.
In addition, both pointed out as a violation of the order of dismissal, non-coordination of their dismissal with the trade union committee.
What should be understood as a reduction in the number or staff of employees?
What is the procedure for redundancies in layoffs?
What decision should the court make?
Dismissal under paragraph 2 of Art. 81 of the Labor Code of the Russian Federation is recognized as legitimate only if the employer fully observes all the rules established by law, as well as the collective agreement of this organization.
First, when choosing a candidate for dismissal, it is necessary to take into account the pre-emptive right to remain at work, Art. 179 of the Labor Code of the Russian Federation, it contains the following:
When the number or staff of workers is reduced, the priority right to remain at work is given to workers with higher productivity and qualifications.
With equal labor productivity and qualifications, preference in leaving work is given to: family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is a permanent and main source of livelihood for them); persons in whose family there are no other workers with independent earnings; employees who received a work injury during the period of work with this employer or Occupational Illness; invalids of the Great Patriotic War and invalids of military operations to defend the Fatherland; employees who improve their qualifications in the direction of the employer on the job.
The collective agreement may provide for other categories of workers who enjoy the preferential right to remain at work with equal labor productivity and qualifications.
You should also take into account the special guarantees provided for in Art. 261 of the Labor Code of the Russian Federation for persons with family responsibilities.
Secondly, when carrying out measures to reduce the number or staff, the employer is obliged to offer the employee an existing job or vacant post(part 1 of article 180 of the Labor Code of the Russian Federation). If the employee refuses to transfer (which must be confirmed in writing) or there is no suitable vacancy in the organization, the employee may be fired under paragraph 2 of Art. 81 of the Labor Code of the Russian Federation. Employees are warned about the upcoming dismissal by the employer personally and against signature at least two months before dismissal.
Thirdly, Article 82 of the Labor Code of the Russian Federation establishes mandatory participation the elected body of the primary trade union organization in considering issues related to the termination of the employment contract at the initiative of the employer.
The provision of part one of Article 82 of this Code, according to which, when deciding to reduce the number or staff of employees of the organization and the possible termination of employment contracts with employees in accordance with paragraph 2 of part one of Article 81 of this Code, the employer is obliged to inform in writing the elected body of the primary trade union organization no later than two months before the start of the relevant measures, in the system of current legal regulation means that the employer, when making the appropriate decision, is obliged to notify the elected body of the primary trade union organization about this in writing no later than two months before the start of termination from employees of labor contracts.
Based on all of the above, it can be concluded that the dismissal of Kurochkina and Petukhova was not lawful, since the rules established by law were not observed. It follows from this that the court must satisfy the claim for the restoration of these employees at the workplace. And also Petukhova has the preemptive right to remain at work, in connection with the two dependents in her family (Article 179 of the Labor Code of the Russian Federation), a schoolboy son and a pensioner mother.
A team worked in the store, with which a full liability agreement was concluded.
The brigade consisted of: the head of the section, her deputy, two senior salesmen, three salespeople and a cleaning lady.
The inventory was established to establish a shortage of goods in the amount of 24,000 rubles. The day before, theft of goods in the amount of 902 rubles was discovered in the section. a member of the Vorobyova brigade.
The fact was recorded in the act.
The management of the store demanded from the brigade to reimburse the amount of missing goods.
What is the procedure for organizing brigades with material responsibility?
On what grounds can a member of the brigade be exempted from liability?
Who and to what extent should material responsibility be imposed in this case?
In what order can damage be recovered?
Material liability is the obligation of one party to an employment contract to compensate for the damage caused by it to the other party as a result of guilty illegal behavior, in the amount and in the manner prescribed labor legislation... Golovina S.Yu., Molodtsova M.V. Labor law of Russia. - M .: Publishing house NORMA, 2008, p. 455.
In accordance with Art. 242 of the Labor Code of the Russian Federation, full financial responsibility consists in his obligation to compensate direct actual damage in full size.
Article 245. Collective (brigade) material liability for damage.
When employees jointly perform certain types of work related to storage, processing, sale (vacation), transportation, use or other use of the values transferred to them, when it is impossible to delineate the responsibility of each employee for causing damage and conclude an agreement with him on compensation for damage in full, collective (brigade) material liability can be introduced.
A written agreement on collective (brigade) material liability for damage is concluded between the employer and all members of the team (brigade).
Under an agreement on collective (brigade) material responsibility, the values are entrusted to a pre-established group of persons, who are fully financially responsible for their shortage. To be exempted from material liability, a member of the team (brigade) must prove the absence of his guilt.
At voluntary reimbursement damage the degree of guilt of each member of the team (team) is determined by agreement between all members of the team (team) and the employer. When recovering damage in court, the degree of guilt of each member of the team (brigade) is determined by the court.
Thus, if an agreement on collective liability was concluded between the employer and all members of the team, then there will be demand from each member of this team. Except for those who can prove the absence of their guilt for this act. In case of voluntary compensation for damage, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team (team) and the employer. An employee of Vorobyova, who committed theft in the amount of 902 rubles, must also independently compensate for the damage caused by her. The procedure for collecting damage is enshrined in Art. 248 of the Labor Code of the Russian Federation, the recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly earnings, is carried out by order of the employer. The order can be made no later than one month from the date of the final determination by the employer of the amount of damage caused by the employee.
If the monthly period has expired or the employee does not agree to voluntarily compensate the damage caused to the employer, and the amount of damage caused to be recovered from the employee exceeds his average monthly salary, then recovery can only be carried out by a court.
If the employer does not comply with the established procedure for collecting damage, the employee has the right to appeal against the employer's actions in court.
An employee guilty of causing damage to the employer can voluntarily compensate it in whole or in part. By agreement of the parties to the employment contract, compensation for damage with payment by installments is allowed. In this case, the employee submits to the employer a written commitment to compensate for damage, specifying the specific timing of payments. In the event of the dismissal of an employee who gave a written commitment to voluntary compensation for damage, but refused to compensate for the specified damage, the outstanding debt is recovered in court.
With the consent of the employer, the employee can transfer to him for compensation for damage caused by equivalent property or fix damaged property.
Compensation for damage is made regardless of whether the employee is brought to disciplinary, administrative or criminal liability for actions or omissions that have caused damage to the employer.
Bibliography
worker reduction staffing eligibility
- 1) Buyanova M.O. Labor law of Russia .- M .: PROSPEKT, 2009 .- 235 p.
- 2) Golovina S.Yu., Molodtsova M.V. Labor law of Russia.- M .: Publishing house NORMA, 2008.-703 p.
- 3) Labor Code of the Russian Federation.
- 4) Malko A.V. Jurisprudence: textbook.- M.: KNORUS, 2006.-400 p.