As a general rule, labor relations arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with the rules established by the Labor Code. But in addition to this method, labor legislation provides for other grounds for the emergence of such relations. We will tell you what these reasons are in this article.
In accordance with Art. 15 of the Labor Code of the Russian Federation, labor relations are understood as relations based on an agreement between the employer and the employee on the latter’s personal performance for payment of a labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; the specific type of work entrusted to the employee), subordination of the employee rules of internal labor regulations when the employer provides working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations, employment contracts.
The parties to the labor relationship are the employee (an individual who has entered into an employment relationship with the employer) and the employer (an individual or legal entity (organization) that has entered into an employment relationship with the employee. In cases provided for by federal laws, another entity may act as an employer, entitled to enter into employment contracts).
Labor relations always arise on the basis of an employment contract, which can be concluded on the basis of various circumstances. Most often, an employment contract is concluded by agreement of the parties. However, it can also be concluded as a result (Article 16 of the Labor Code of the Russian Federation):
- election to office;
— appointment to a position or confirmation in a position;
— election by competition to fill the relevant position;
- assignments to work by bodies authorized in accordance with federal law against the established quota;
— a court decision on concluding an employment contract;
- actual admission of an employee to work with the knowledge or on behalf of the employer or his representative in the case where the employment contract was not properly drawn up.
Let us recall that an employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work for a specified labor function, to provide working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and this agreement, pay the employee wages in a timely manner and in full, and the employee undertakes to personally perform the labor function defined by this agreement, to comply with the internal labor regulations in force for this employer (Article 56 of the Labor Code of the Russian Federation).
Let us consider in more detail the above-mentioned reasons for concluding an employment contract, and consequently, the emergence of labor relations.
Labor relations as a result of election to office
Labor relations on the basis of an employment contract as a result of election to a position arise if election to a position requires the employee to perform a certain labor function (Article 17 of the Labor Code of the Russian Federation). Therefore, election to a position can become the basis for the emergence of labor relations both in institutions financed from budgets of various levels, and in commercial enterprises.
Note.
Labor function - work according to the position in accordance with the staffing table, profession, specialty indicating qualifications;
the specific type of work entrusted to the employee (Article 57 of the Labor Code of the Russian Federation). Election to a position does not always entail the conclusion of an employment contract. For example, labor relations do not arise in the case of citizens being elected as deputies of the State Duma of the Federal Assembly of the Russian Federation, since a citizen, being elected as a representative of the population of the country, performs duties in a deputy position not in the interests and not under the direction of any employer (which in this case no), but in the interests of the whole society.
Since Art. itself 17 does not establish a list of positions with a specific labor function for which an election procedure is necessary; one should refer to laws or other regulations defining the elective procedure for filling certain positions. Let us name some laws that define this basis for entering into labor relations for managers of legal entities of various forms of ownership, since the performance of labor duties involves the exercise of the functions of the sole executive body of a legal entity.
1. Federal Law of December 26, 1995 N 208-FZ “On Joint-Stock Companies” - the sole executive body of a joint-stock company is usually elected at a general meeting of shareholders, and in cases provided for by the charter, the resolution of this issue may be included in the competence of the board of directors or the supervisory board of the company.
2. Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies” - the director is elected by the general meeting of the company’s participants (Article 40).
3. Federal Law of July 19, 1998 N 115-FZ “On the peculiarities of the legal status of joint-stock companies of employees (national enterprises)” - the head of the enterprise is elected by the general meeting of shareholders of the company.
4. Federal Law of 05/08/1996 N 41-FZ “On Production Cooperatives” - the chairman of the board of the cooperative is elected by the general meeting of members of the cooperative.
5. Federal Law of August 22, 1996 N 125-FZ “On Higher and Postgraduate Professional Education” - rectors of a state or municipal higher educational institution are elected in the manner established by the charter of such a higher educational institution.
Let us note that the emergence of labor relations as a result of election to a position may be provided for not only by laws, but also by the charters or local regulations of the employer, since labor legislation does not contain any restrictions on the categories of employees in respect of whom such a procedure for the emergence of labor relations may be applied. .
An employment contract as the basis for the emergence of labor relations
In addition to the fact that the employment contract must be considered as the most important basis for the emergence of labor relations, it belongs to the main institution of the entire legal field.
There are three aspects that are inherent in contracts of this type:
- a contract is an agreement that arises between an employee and a potential employer;
- the employment contract refers to an industry institution that regulates the procedure for hiring, performing labor functions, as well as terminating or changing its conditions;
- a contract is a legal fact that affects not only labor relations, but also those related to them.
The concept of related relations must be understood as those relations that arise as a result of civil law agreements. Such relations are similar to labor relations, but have a different legal nature.
The exact definition of an employment contract is contained in Art. 56 TK. This concept is a reflection of those mutual rights and obligations that arise among the subjects of legal relations as a result of the conclusion of an agreement.
The fact of concluding an employment contract obliges the parties to fulfill the obligations they have assumed.
So, first of all, the employee is obliged to perform the functions assigned to him personally, while observing the internal work schedule. The main responsibility of the employer is to pay remuneration for the work performed, as well as to create such working conditions that are necessary to perform the labor functions assigned to the employee.
The freedom of expression of the parties applies not only to the moment of concluding the contract, but also to the process of changing its essential conditions, as well as to termination. While protecting the rights of workers, the legislator does not allow and restricts employers from unjustifiably terminating employment relationships with a certain group of workers who are classified as less protected.
Conflict situations that arise in the process of labor relations must be resolved by appealing to the labor dispute commission, and if it is impossible to resolve this method, by judicial proceedings.
Election by competition
Article 18 of the Labor Code of the Russian Federation establishes that labor relations on the basis of an employment contract as a result of election through a competition to fill the corresponding position arise if labor legislation and other regulatory legal acts containing labor law norms, or the charter (regulations) of the organization determine the list of positions to be filled by competition, and the procedure for competitive election to these positions.
The cases and procedure for the emergence of labor relations on the basis of an employment contract as a result of election to a position through competition may be established by law or other regulatory legal acts. However, there are cases when holding a competition necessarily precedes the conclusion of an employment contract.
So, in accordance with the requirements of Art. 332 of the Labor Code of the Russian Federation, the conclusion of an employment contract to fill the position of a scientific and pedagogical worker in a higher educational institution, as well as transfer to such a position, is preceded by election through a competition to fill the corresponding position. If an open-ended employment contract has been concluded with a scientific and pedagogical worker, the competition must still be held at least once every five years.
In addition, the competition should be held to fill positions of scientific workers and heads of scientific institutions and scientific workers of scientific centers subordinate to the Russian Academy of Sciences. The regulations on holding a competition to fill these positions were approved by Order of the Ministry of Education and Science of the Russian Federation, the Ministry of Health and Social Development of the Russian Federation and the Russian Academy of Sciences dated May 23, 2007 N 145/353/34.
Research and teaching staff also enter into employment contracts based on the results of a competition, the regulations for which are approved by Order of the Ministry of Education of the Russian Federation dated November 26, 2002 N 4114.
For employees of certain categories, the procedure for holding a competition to fill a vacant position is established by decrees of the Government of the Russian Federation or decrees of the President of the Russian Federation. These are the heads of federal state unitary enterprises and state civil servants.
Appointment or confirmation to a position
Labor relations arise on the basis of an employment contract as a result of appointment to a position or confirmation in a position in cases provided for by labor legislation and other regulatory legal acts containing labor law norms, or the charter (regulations) of the organization (Article 19 of the Labor Code of the Russian Federation).
In practice, workers are mainly appointed to positions in government bodies, for example, in the prosecutor's office or state-owned enterprises. In accordance with Art. 128 of the Constitution of the Russian Federation, judges of the Constitutional Court, the Supreme Court, and the Supreme Arbitration Court are appointed by the Federation Council on the proposal of the President of the Russian Federation, and judges of other federal courts are appointed by the President of the Russian Federation in the manner established by federal law.
But the act of appointment is required not only in government agencies. For example, according to Art. 55 of the Civil Code of the Russian Federation, heads of representative offices and branches are appointed by a legal entity and act on the basis of its power of attorney. Procedures for appointment to a position are determined by the constituent documents and other local regulations.
How to establish the fact of labor relations
In modern society, it increasingly happens that an employer avoids officially employing an employee.
What does official employment mean?
In accordance with the provisions of the Labor Code of the Russian Federation, which regulate the legal relationship between an employee and an employer, it is established that the fact of labor relations arises between an employee and an employer on the basis of an employment contract concluded by them in accordance with the Labor Code of the Russian Federation.
In accordance with Art. 56 of the Labor Code of the Russian Federation, an employment contract is an agreement between an employer and an employee, in accordance with which the EMPLOYER OBLIGES :
- provide the employee with work according to the specified labor function;
- ensure working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations and this agreement;
- pay the employee wages in a timely manner and in full.
And the employee undertakes to personally perform the labor function determined by this agreement in the interests, under the management and control of the employer, and to comply with the internal labor regulations in force for this employer.
If you are not employed under an employment contract, then -
- Your work experience is not calculated.
- You are not subject to compensation and guarantees established by law (such as compensation for sick leave, the right to annual paid leave, etc.).
- You are not insured against an accident at work. In the event of such an unfavorable circumstance, you will have to rely on the decency of the employer and that you will be compensated for moral damages and treatment costs and/or restore your health AT YOUR OWN EXPENSE .
If the employer avoids concluding an employment contract, as well as in other cases of violation of your labor rights, you must contact the COURT .
IMPORTANT:
- Plaintiffs in claims for the protection of violated labor rights are exempt from legal costs in the form of state fees;
- The employee is given 1 (one) year to resolve an individual labor dispute, i.e. to go to court.
You can also file a complaint about a violation of your labor rights with the Prosecutor's Office and/or the State Labor Inspectorate, but remember that neither the prosecutor's office nor the inspectorate will establish the fact of labor relations, will not reinstate you at work, or will recover unpaid wages and other payments from the employer due to the employee.
Only the court establishes facts of legal significance, including the fact of labor relations.
Thus, labor relations between an employee and an employer also arise on the basis of the employee’s actual admission to work with the knowledge or on behalf of the employer or his authorized representative in the case where the employment contract was not properly drawn up.
Thus, if you actually began to fulfill your labor obligations, acted on the instructions and under the control of the employer, if you received remuneration for your work, then in court it is possible to establish the fact of labor relations and, accordingly, impose on the employer the obligation to conclude an employment contract with you, and in other cases cases 1) collect wages; 2) will be reinstated at work; 3) recover compensation for moral damage, etc.
It is very important to go to court with a statement of claim to establish the fact of an employment relationship after dismissal, but no later than a year later, since otherwise the procedural deadline for going to court will be missed.
The reality is that if you file a lawsuit against your employer before you are fired in the absence of an employment contract, you risk remaining unemployed.
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Actual permission of the employee to perform work
According to Art. 61 of the Labor Code of the Russian Federation, an employment contract comes into force from the day it is signed by the employee and the employer, unless otherwise established 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.
Paragraph 12 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” states: if the employment contract was not properly drawn up, but the employee began work with the knowledge or on behalf of the employer or his authorized representative , then the employment contract is considered concluded and the employer or his authorized representative is obliged no later than three working days from the date of actual admission to work to draw up the employment contract in writing (Article 67 of the Labor Code of the Russian Federation). It should be borne in mind that the representative of the employer in this case is a person who, in accordance with the law, other regulatory legal acts, constituent documents of a legal entity (organization) or local regulations, or by virtue of an employment contract concluded with this person, is empowered to hiring workers, since it is in this case that when an employee is actually allowed to work with the knowledge or on behalf of such a person, an employment relationship arises (Article 16 of the Labor Code of the Russian Federation) and the employer may be obligated to formalize an employment contract with this employee in a proper manner.
System of legal relations of labor law
T labor legal relations are not only the relationship between the employee and the employer, but also the relations that arise directly related to labor relations.
The system of legal relations of labor law consists of a general and a special part.
The general part includes norms that apply to all relations included in the subject of labor law, that is, relations related to the constitutional foundations of labor, legal sources, principles, subjects, the institution of social partnership, etc.
A special part consists of such institutions as:
- employment and employment;
- employment contract;
- protection of employee personal data;
- professional training and advanced training of workers;
- working hours;
- rest time;
- wages and labor standards, etc.
Thus, the system of legal relations of labor law is understood as a set of similar social relations united by common goals and objectives that arise in the sphere of employment of workers when these relations are regulated by the norms of labor legislation (based on the method of labor law).
