An employment relationship does not arise as a result. The emergence of labor relations. Labor relations on a competitive basis

EMPLOYMENT RELATIONSHIPS their features.

Labor relations - relations based on an agreement between the employee and the employer on the employee's personal performance of the labor function for a fee, the employee's submission to the internal labor regulations, while the employer provides the working conditions stipulated by labor legislation and other regulatory legal acts containing norms labor law, collective agreement, agreements, local regulations, labor agreement.

The labor function is understood as work according to the position in accordance with the staffing table, profession, specialty with an indication of qualifications, the specific type of work entrusted to the employee.

signs:

♦ The employment relationship is strong-willed character: it arises as a result of the will of the parties. The basis for the emergence of an employment relationship is an employment contract (Article 16 of the Labor Code). Out-of-speech employment is prohibited (Article 4 of the Labor Code).

♦ The employment relationship is lasting character, it is not terminated by the performance of any obligation by the employee, the performance of a certain range or scope of work.

The employment relationship is characterized by personal performance by an employee of a certain job (labor function).

Compensatory character.

Differences labor relations from civil law relations .......

by subject

by object

retribution

urgency

subordination of the employee htp

inclusion of an employee in the workforce

basis of occurrence - special fact employment contract

certainty of the labor function.

personal character ore

The parties are labor. legal relationship: Employee and employer.

Collective entities (representatives of employees and employers). Subjects under consideration labor disputes.

In Art. 21 of the Labor Code of the Russian Federation lists the basic rights of workers in labor relations.

The employee has the right to:

conclusion, amendment and termination of the employment contract in the manner and on the conditions established by this Code, other federal laws;

providing him with work stipulated by the employment contract;

a workplace that meets the state regulatory requirements for labor protection and the conditions provided for by the collective agreement;

timely and full payment of wages in accordance with their qualifications, complexity of work, quantity and quality of work performed;

rest, provided by the establishment of normal working hours, reduced working hours for certain professions and categories of workers, the provision of weekly days off, non-working holidays, paid annual leave;

complete reliable information about working conditions and labor protection requirements at the workplace;

protection of their labor rights, freedoms and legal interests in all ways not prohibited by law;

resolution of individual and collective labor disputes, including the right to strike, in accordance with the procedure established by this Code and other federal laws;

compensation for harm caused to him in connection with the performance job responsibilities, and compensation for moral damage in the manner prescribed by this Code, other federal laws;

compulsory social insurance in cases stipulated by federal laws.

The employee is obliged:

conscientiously fulfill his labor duties assigned to him by the employment contract;

comply with the internal labor regulations;

observe labor discipline;

comply with established labor standards;

comply with labor protection and labor safety requirements;

take good care of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property) and other employees;

♦ Employer's rights and obligations enshrined in Art. 22 TC. The employer has the rights to conclude, modify and terminate employment contract in the manner prescribed by law. He has the right to receive the work stipulated by the employment contract, he can demand from the employee the conscientious performance of his labor duties in compliance with the internal labor schedule established in the organization.

The main obligations of the employer are to provide the employee with work stipulated by the employment contract; timely and full payment of wages; ensuring labor safety and conditions that meet the requirements of labor protection and hygiene; provision of workers with equipment, tools, technical documentation and other means necessary for the performance of the labor function; providing for the everyday needs of employees related to the performance of their labor duties.

Grounds for the emergence of labor relations

Labor relations arise 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. TD is the only reason….

In cases and in the procedure established by labor legislation and other regulatory legal acts containing labor law norms, or by the charter (statute) of the organization, labor relations arise on the basis of an employment contract as a result of:

election to office;

election by competition to fill the relevant position;

appointments or approvals;

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

a court decision on the conclusion of an employment contract;

The listed grounds for the emergence of labor relations are complex legal facts (or actual structures), i.e. a set of facts, as the basis for the emergence of labor. legal relationship.

Labor relations between the employee and the employer also arise on the basis of the actual admission of the employee to work with the knowledge or on behalf of the employer or his representative in the case when the employment contract was not properly executed. Then this relationship must be formalized in writing in the form of a concluded written employment contract and a job order. The emergence of labor relations on this basis is associated with the presence of 1 of the following legal facts: 1) if the employer (manager) admitted to work; 2) there was an order from the employer to the manager (head structural unit) on admission to work; 3) the manager admitted to work without concluding an employment contract in extraordinary circumstances, while he informed the employer and he did not object (hiring with the knowledge of the employer).

The employer's representative is the work supervisor. If the employee is admitted to work, then the employer has no right to refuse him to draw up an employment contract, since it has already been concluded.

Labor relations arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with this Code.

election to office;

election by competition to fill the relevant position;

appointments or approvals;

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

a court decision on the conclusion of an employment contract;

the paragraph is no longer valid. - Federal Law of June 30, 2006 N 90-FZ;

recognition of relations associated with the use of personal labor and arising on the basis of a civil contract, labor relations.

Labor relations between the employee and the employer also arise on the basis of the factual admission of the employee to work with the knowledge or on behalf of the employer or his authorized representative in the event that the employment contract was not properly executed.

Actual admission of an employee to work without the knowledge or instructions of the employer or his authorized representative is prohibited.

Comments to Art. 16 of the Labor Code of the Russian Federation

1. The organization, in order to improve the efficiency of recruitment of personnel, has the right to include in the charter all the grounds for the emergence of labor relations listed in the commented article.

2. The facts listed in the commented article are the basis for concluding an employment contract. The employer has no right to refuse to conclude an employment contract in the presence of any of the listed facts. This is most clearly seen when assessing the last two reasons for the emergence of labor relations, named in the article being commented on.

3. Labor relations arise in the case of actual admission to work. Then this relationship must be formalized in writing in the form of a concluded written employment contract and a job order. The emergence of labor relations on this basis is associated with the presence of 1 of the following legal facts: 1) if the employer (manager) admitted to work; 2) there was an order from the employer to the manager (head of the structural unit) for admission to work; 3) the manager admitted to work without concluding an employment contract in extraordinary circumstances, while he informed the employer and he did not object (hiring with the knowledge of the employer).

4. If a court decision has been made to conclude an employment contract, then the employer has no right not to comply with this court decision, i.e. refuse to conclude an employment contract.

5. For the emergence of labor relations on the basis of an employment contract as a result of election (elections) to a position, election through a competition to fill a corresponding position, appointment to a position or approval in a position, assignment to work by statutory bodies on account of the established quota, a legal act is required, which defines the cases and procedure for the occurrence of all the listed facts (election, appointment, direction). Such a legal act may be a law, another regulatory legal act (for example, internal labor regulations, regulations on election, appointment), the charter of an organization.

6. Federal Law of May 8, 1994 N 3-FZ "On the status of a member of the Federation Council and the status of a deputy of the State Duma of the Federal Assembly Russian Federation"a special procedure has been established for hiring and dismissing from work an assistant to a member of the Federation Council, an assistant to a deputy of the State Duma, which consists in the fact that a deputy's representation is required to conclude an employment contract (Article 38).

An assistant to a member of the Federation Council, an assistant to a deputy of the State Duma is hired on the basis of a written employment contract.

An employment contract is concluded on the basis of an application by an assistant to a member of the Federation Council, an assistant to a deputy of the State Duma and a submission by a member of the Federation Council, deputy of the State Duma for the period specified in the submission, but not exceeding the term of office of a member of the Federation Council, deputy of the State Duma.

7. The admission of an assistant to a member of the Federation Council, an assistant to a deputy of the State Duma to work in the corresponding chamber of the Federal Assembly shall be formalized by an order of the head of the staff of the corresponding chamber of the Federal Assembly.

8. Decree of the Government of the Russian Federation of October 11, 2002 N 755 approved. List of facilities and organizations in which foreign citizens are not allowed to be employed.

New edition of Art. 16 of the Labor Code of the Russian Federation

Labor relations arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with this Code.

election to office;

election by competition to fill the relevant position;

appointments or approvals;

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

a court decision on the conclusion of an employment contract;

the seventh paragraph has ceased to be in force;

recognition of relations associated with the use of personal labor and arising on the basis of a civil contract, labor relations.

Actual admission of an employee to work without the knowledge or instructions of the employer or his authorized representative is prohibited.

Commentary on Article 16 of the Labor Code of the Russian Federation

Article 16 of the Labor Code of the Russian Federation enshrines one of the most important norms of labor law. According to this article, labor relations arise 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.

Federal Law N 90-FZ supplemented Article 16 of the Labor Code of the Russian Federation with part 3, according to which labor relations between the employee and the employer also arise on the basis of the employee's actual admission to work with the knowledge or on behalf of his representative in the event that the employment contract was not proper the way is framed.

It can be said that this norm was enshrined in order to protect the rights of workers. A frequent situation today is when the employer does not conclude an employment contract with employees in order to delay or not pay wages in the future. The content of such a provision in Article 16 of the Labor Code of the Russian Federation gives employees a reason to file a lawsuit against an unscrupulous employer, even if the employee worked without proper paperwork.

Another commentary on Art. 16 of the Labor Code of the Russian Federation

1. In connection with the freedom of labor proclaimed in our country (part 1 of article 37 of the Constitution of the Russian Federation), and the prohibition of forced labor (see article 4 of the Labor Code of the Russian Federation and a commentary to it), labor relations between an employee and an employer can arise only in the force of their voluntary agreement based on the free will of each of the parties. By virtue of this Art. 16 of the Labor Code of the Russian Federation speaks of an employment contract as a universal basis for the emergence of labor relations for any kind. In practical terms, this means that the work of each employee, used in the framework of relations that have signs of labor relations (see Article 15 of the Labor Code of the Russian Federation and the commentary to it), must be accompanied by the conclusion of a written employment contract without fail (see Article 67 of the Labor Code RF and a commentary to it). In turn, the absence of such an agreement should be considered in each specific case as a violation labor legislation with all the ensuing negative consequences for the employer (see article 419 of the Labor Code of the Russian Federation and the commentary to it).

2.From a legal point of view, an employment contract is a law-forming legal fact, whose content forms the mutual expression of the will of the employee and the employer, with whom the law connects the emergence of labor legal relations filled with the rights and obligations of its parties (see Articles 21, 22 of the Labor Code of the Russian Federation and commentary to them).

By general rule an employment contract is a self-sufficient basis for the emergence of any employment legal relationship. At the same time, a law, another normative act or the charter (regulation) of an organization may complicate the employment procedure for some employees and employers by establishing procedures preceding or accompanying the conclusion of an employment contract, including the performance of certain actions that have the properties of legally significant acts. In a number of cases, these acts, together with an employment contract, form a so-called complex factual composition, which is a collection of individual legal facts that occur in a certain sequence. The last in the chain of these facts is usually an employment contract, with the conclusion of which the formation of a complex factual composition is completed, giving rise to an employment relationship, linking the employer with a specific natural person who have acquired the status of an employee.

The Labor Code establishes six such complex structures. Three of them (election to office, election by competition and appointment or approval in office) are regulated by separate articles of the Labor Code of the Russian Federation (see Articles 18-19 of the Labor Code of the Russian Federation and commentary to them), and three others (referral to work by those authorized by law authorities on account of the established quota, a court decision on the conclusion of an employment contract and the actual admission of a person to work) are not regulated by separate articles.

3. A complex factual composition, including the act of assignment to work, is usually used in cases where the employer is legally obliged to hire representatives of a certain category of individuals on account of the established quota. Most often, such a measure is used to ensure the employment of persons who have a deliberately reduced competitiveness in the labor market. Of course, it does not always take into account the interests of the employer, since it limits his freedom in choosing the employee he needs. However, in this case, priority is given to the public interest.

Federal legislation included among these persons, for example, persons with disabilities. In accordance with Art. 21 Federal law dated November 24, 1995 N 181-ФЗ "О social protection disabled people in the Russian Federation "to organizations with more than 100 employees, the legislation of the constituent entity of the Russian Federation establishes a quota for the employment of disabled people as a percentage of average headcount employees (but not less than 2 and not more than 4%).

Regional legislation supplements the list of such persons with other categories of citizens, as a rule, also experiencing difficulties in finding a job and, therefore, in need of increased social protection. For example, the Law of Moscow of November 12, 1997 N 47 "On quotas for jobs in the city of Moscow" (Vedomosti of the Moscow Duma. 1998. N 2) established a quota for the employment of orphans and children left without parental care; The Law of St. Petersburg of October 8, 1997 N 161-53 (as amended on October 30, 1998 N 230-49; February 23, 2001 N 118-16; December 21, 2001 N 855-113) " On job quotas for youth employment "(Bulletin of the Legislative Assembly of St. Petersburg. 1997. N 12; 1999. N 1; 2001. N 4; 2002. N 2) educational institutions, educational institutions of primary and secondary vocational education, graduates of higher educational institutions, citizens dismissed from military service by conscription, as well as persons under the age of 18, especially in need of social protection and experiencing difficulties in finding a job.

4. Part 2 of Art. 16 provides for the possibility of the emergence of labor legal relations on the basis of a complex factual composition, one of the elements of which is a court decision on the conclusion of an employment contract.

This actual composition is formed under the following conditions: a) unjustified refusal to hire a specific person (see article 64 of the Labor Code of the Russian Federation and a commentary to it); b) appeal by this person in court against the fact of refusal to conclude an employment contract (see Art. 391 of the Labor Code of the Russian Federation and a commentary to it); c) the court makes a decision to compel a specific employer to conclude an employment contract with the relevant person.

On the basis of a court decision, the employer must conclude an employment contract with a person who was previously denied employment. At the same time, it must be borne in mind that the court, taking this decision does not define the specific content of the respective employment contract. In this regard, the question arises: on what conditions should such an employment contract be concluded? There is no unequivocal answer to it for the reason that the situation preceding the unjustified refusal to hire a person may be completely different in each specific case.

At least two initial positions are possible that determine the way of filling with specific conditions of the content of an employment contract concluded on the basis of a court decision. So, if an unjustified refusal to hire took place upon the preliminary announcement by the employer of the specific conditions of the employment contract, then it is these conditions that should form the content of the contract concluded on the basis of a court decision.

However, this situation is quite rare. Much more often a person comes to get a job, having only the most general information, characterizing the work required by the employer and the amount of his payment. Finding themselves in a similar situation, the parties, carrying out the court's decision, in fact should come to additional agreement with respect to all, except for the conditions of the employment contract known at the time of the initial attempt at employment. The minimum set of these conditions is determined by Art. 57 of the Labor Code of the Russian Federation (see the commentary to it). At the same time, the starting points that determine in this case the maximum limits of the employee's claims and the corresponding level of the employer's obligations should be recognized as standard working conditions for employees performing similar labor functions for this employer. In the event that the employer does not have such employees, it is necessary to focus on the usual working conditions characteristic of the employment contracts of employees of a similar specialty, qualification or position in the same locality.

This statement is based primarily on the content that prohibits discrimination of the employee in comparison with other workers (see article 3 of the Labor Code of the Russian Federation and the commentary to it), and, in addition, on the provisions that enshrine the employee's right to fair working conditions, and as such , in relation to the described case, the most common terms of employment contracts concluded with employees of the corresponding professional category with the employer or in the given locality should be recognized.

It should be especially noted that in the absence of an agreement on a different date of entry into force of this agreement, it is necessary to consider the day of the employer's refusal to conclude an employment contract with the employee.

5. As a general rule, the conclusion of an employment contract must precede the use of labor of any employee (see Articles 63 - 71 of the Labor Code of the Russian Federation and a commentary to them). However, in the last part of Art. 16 of the Labor Code of the Russian Federation, one exception is made to this rule, by virtue of which the act of admission to work, included in a complex factual composition, giving rise to labor legal relations with a specific person, always precedes the conclusion of an agreement.

For the recognition of this act as an element of the complex factual composition that gives rise to labor relations, certain conditions must be met. So, it is required that admission to work was made by entities entitled to perform such actions (see part 2, paragraph 12 of the Resolution of the Plenum The Supreme Court RF dated March 17, 2004 N 2). In turn, such entities should include: a) the employer himself, if he is represented by an individual; b) persons who are entrusted with the performance of the functions of sole or collegial bodies employer-organization and whose competence includes the authority to hire; c) other persons, although not having the authority to hire, but who were acting at the time the person was actually admitted to work on a direct order or with the knowledge of the employer himself or his authorized representative.

All these persons, in most cases, are representatives of the employer's management personnel, who are directly entrusted with the function of staffing the latter's activities. As a general rule, employees who are not management personnel cannot and should not be considered as persons officially representing the employer and, therefore, capable of performing any actions that are legally significant for him.

At the same time, in practice, the question often arises about the consequences of admitting a person to work, performed by a representative of the organization's management personnel, who did not formally possess the necessary powers for this and therefore acted in conditions of actual exceeding of his competence without the knowledge or without a special order of the employer. At the same time, this situation may be characterized by the fact that the employee admitted to specific work had every reason to perceive the relevant manager as an official representative of the employer who has the necessary powers to perform such actions. In other words, in practice, a situation is possible in which an employee who starts work might not have known and should not have known that the act of his admission to work by a representative of the organization's management occurred in the absence of prior approval from a competent subject (body or person), authorized to represent the employer in employment relationships.

When deciding such a question, it is necessary to be guided by the following considerations.

Labor organization and labor management are the functions of the employer, which result from his economic position of the user by factors included in his economic sphere. The employer carries out these functions at his own risk, the consequence of which is the burden of negative economic results imposed on him and the responsibility to third parties for actions (inaction) committed by his employees in the performance of labor duties.

The employer can perform his functions of organizing and managing labor efficiently and ineffectively. In the case of their effective implementation, it takes the necessary local regulations, including the internal labor regulations, giving everyone a clear idea of the procedure for hiring and firing employees, their basic rights and obligations, the competence of managers, etc. In such conditions, it is almost impossible for a situation characterized by the involvement of those managers in employment relations who do not have the necessary authority to do so. In addition, a person applying for work in such an organization always has the opportunity to obtain from the content of the same internal labor regulations full information about the circle of managers authorized to perform legally significant actions in the field of these relations. Thus, if the employer took the necessary actions to eliminate the conditions for the occurrence of the situation described above, but it nevertheless occurred due to the improper fulfillment of the duties by a particular manager and the failure of the person entering the job to use his right to receive reliable information required to make a decision on joining a given employer, the latter should not be recognized as a party to the employment relationship, to the occurrence of which he was actually not involved.

A different situation arises when the employer is ineffectively performing his functions of organizing labor and managing the labor of his employees. In this case, the employer may not have any local regulations at all that establish the scope of competence of specific managers and a clear procedure for hiring. In these conditions, each person who starts to work for the respective employer is initially deprived of the opportunity to get a clear idea of the real powers of the person who negotiated with him for employment and allowed him to work. Since any employer should be responsible for the risk of negative consequences from the ineffective organization of the work of its employees, the actual admission to work of a particular person in this situation should be considered as a legal fact included in a complex factual composition, which is the proper basis for the emergence of labor legal relations.

It is precisely this interpretation of the actual admission to work that should put an end to those who received recent times the increasing prevalence of abuses by employers of their rights in the field of employment, by virtue of which they, as a result of deception of employees, are free from all their duties to them. This negative practice has developed, for example, in the construction sector of the economy, in which the search and supply of workers for specific construction organizations often carried out by the so-called recruiting firms. They, without concluding employment contracts and therefore not bearing any responsibility for their activities, direct job seekers persons to specific construction sites. At these facilities, negotiations about work and actual admission to work are carried out by the managers of these works, who obviously do not have the necessary powers by virtue of the statutory or local regulations of their organization, which, of course, the employees do not know about. At the same time, they, of course, do not conclude any contracts with those invited to work, motivating this for various reasons (temporary absence of the accountant, the seal of the organization, the emergency (emergency) of the situation, etc.). The result of this scheme of relations between the employer and employees is often the refusal of the employer to recognize them as such, and the factual impossibility of the latter to win lawsuits due to their admission to work by formally unauthorized persons.

In addition to the above arguments, the courts could be guided in such situations by the idea of the employer's responsibility for the actions of its managerial staff (as well as any other of its employees) and make decisions on the actual occurrence of labor legal relations with persons who, by virtue of the evidence presented to the court, actually performed certain work in the interests and in favor of a particular employer.

When determining the content of such employment contracts and the date of their entry into force, one should be guided by the considerations set out in the previous paragraph of the commented article.

Article 16 of the Labor Code of the Russian Federation with comments and amendments from 2018-2019.

Labor relations arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with this Code.

election to office;
election by competition to fill the relevant position;
appointments or approvals;
assignments to work by bodies authorized in accordance with federal law on account of the established quota;
a court decision on the conclusion of an employment contract;
the paragraph is no longer valid. - Federal Law of June 30, 2006 N 90-FZ;
recognition of relations associated with the use of personal labor and arising on the basis of a civil contract, labor relations.

Actual admission of an employee to work without the knowledge or instructions of the employer or his authorized representative is prohibited.

Commentary on Article 16 of the Labor Code of the Russian Federation:

Article 16 of the Labor Code of the Russian Federation defines the legal facts that give rise to labor relations. Such legal facts the Code calls the basis for the emergence of labor relations. For most of them, the conclusion of an employment contract is sufficient. No other legal facts are required for the establishment of an employment relationship.

With the help of an employment contract, citizens realize their ability to work, determine the main and additional conditions labor. An employment contract is the legal means that makes it possible to take into account the interests of the employee and the employer to the greatest extent. The Constitution of the Russian Federation binds the labor contract with the guarantee norms provided for by the labor legislation. Article 37 of the Constitution of the Russian Federation contains a rule that a worker under an employment contract is guaranteed the duration of working hours, days off and holidays, paid annual leave.

The Labor Code has a special section dedicated to the employment contract. It includes 5 chapters, which contain 35 articles (see the commentary to Articles 56 - 90).

By setting general rule that labor relations arise on the basis of an employment contract, the Code indicates that there may be cases when other legal facts are required in addition to the employment contract for their occurrence. These facts are stated in part 2 of article 16 of the Labor Code of the Russian Federation. Separate articles are devoted to the first three of them (election to a position; election by competition to fill a corresponding position; appointment to a position or approval in a position) are devoted to separate articles (see Articles 17-19 of the Labor Code).

The commented article also points to such legal facts as being sent to work by statutory bodies on account of the established quota, a court decision to conclude an employment contract, actual admission to work with the knowledge or on behalf of the employer or his representative, regardless of whether the employment contract was proper the way is framed.

Article 16 of the Labor Code of the Russian Federation with comments indicates that a job assignment is carried out for certain categories of citizens experiencing difficulties in finding a job. Thus, the Law on the Protection of Persons with Disabilities establishes for all organizations (regardless of organizational and legal forms and forms of ownership), the number of employees in which is more than 100 people, a quota for hiring people with disabilities as a percentage of the average number of employees (but not less than 2% and no more than 4%).

With persons sent to work by bodies local government to account for this quota, the employer is obliged to conclude an employment contract.

The court decision plays the role of a legal fact in the emergence of an employment relationship in cases of unreasonable refusal to hire. Such a refusal in accordance with Art. 64 of the Labor Code can be appealed in court. Having recognized the refusal of employment as illegal, the court issues a decision obliging the employer to conclude an employment contract with the employee.

Article 16 of the Labor Code of the Russian Federation ends with an indication that the basis for the emergence of labor relations between the employee and the employer is the actual admission to work with the knowledge or on behalf of the employer or his representative in the case when the employment contract was not properly executed. This legal fact is the basis for the emergence of labor relations, when the employee actually started work without an employment contract concluded in writing... In this case, the employer is obliged to conclude an employment contract with him in writing no later than 3 days from the date of actual admission to work.

The full text of Art. 16 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice on Article 16 of the Labor Code of the Russian Federation.

Labor relations arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with this Code.
In cases and in the procedure established by labor legislation and other regulatory legal acts containing labor law norms, or by the charter (statute) of the organization, labor relations arise on the basis of an employment contract as a result of:
election to office;
election by competition to fill the relevant position;
appointments or approvals;
assignments to work by bodies authorized in accordance with federal law on account of the established quota;
a court decision on the conclusion of an employment contract;
the paragraph became invalid from October 6, 2006 - Federal Law of June 30, 2006 N 90-FZ;
recognition of relations associated with the use of personal labor and arising on the basis of a civil contract, labor relations.

Actual admission of an employee to work without the knowledge or instructions of the employer or his authorized representative is prohibited.

Commentary on Article 16 of the Labor Code of the Russian Federation

1. The commented article is devoted to the legal facts with which the Labor Code of the Russian Federation connects the emergence of labor relations.

The main and obligatory legal fact is the conclusion of an employment contract. It is an employment contract that is a form of existence employment relationship and hallmark, allowing to delimit the labor relationship from another relationship associated with the personal work of a citizen.

In accordance with the employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties.

The written form of the contract was not always obligatory. The Soviet Codes of 1918, 1922 and 1971 did not indicate the execution of an employment contract in writing. Only in 1992 in Art. 18 of the Labor Code of 1971, changes were made, after which the employment contract had to be drawn up in writing (Law of the Russian Federation of September 25, 1992 N 3543-1 "On Amendments and Additions to the Labor Code of the RSFSR", has now become invalid) ...

However, both in the Soviet codes and in the Labor Code of the Russian Federation of 2001, an employment contract is understood, first of all, not as a document, but as an agreement between an employee and an employer. In this regard, the achievement of an agreement between the employee and the employer, regardless of its form, is the basis for the emergence of an employment relationship.

This is confirmed by the ruling of the Moscow City Court dated July 18, 2011 in case No. 33-20167. The court noted that the written form of the employment contract in accordance with Part 1 of Art. 67 of the Labor Code of the Russian Federation is mandatory, but the employee is not responsible for the fact that the employment contract with him is not properly drawn up by the employer, and the failure to include in the employment contract any of the stipulated rights and (or) obligations of the employee and the employer cannot be considered as a refusal to implement these rights or performance of these duties.

2. Part 2 of the commented article indicates the cases of the occurrence of an employment relationship on the basis of the actual composition, including the employment contract and any other legal fact specified in the article.

These grounds for the emergence of labor relations are implemented in the cases and in the manner that are established by labor legislation and other regulatory legal acts containing labor law norms, or the charter (statute) of the organization.

Separate articles are devoted to such grounds for the emergence of labor relations as election to a position, election by competition to fill a corresponding position, appointment or confirmation in a position, recognition of relations associated with the use of personal labor and arising on the basis of a civil law contract, labor relations. Of the Labor Code of the Russian Federation, therefore, these grounds will be considered in more detail later (see the commentary to Articles 17, 18, 19, 19.1 of the Labor Code of the Russian Federation).

Paragraph 5 of part 2 of the commented article fixes as the basis for the emergence of labor relations, the direction to work by bodies authorized in accordance with federal law on account of the established quota.

So, in accordance with Art. 21 of the Federal Law "On Social Protection of Disabled People in the Russian Federation" for organizations with more than 100 employees, the legislation of the constituent entity of the Russian Federation establishes a quota for hiring disabled people as a percentage of the average number of employees (but not less than 2 and not more than 4 percent). Also Art. 11 of the Federal Law of June 24, 1998 N 124-FZ "On the Basic Guarantees of the Rights of the Child in the Russian Federation" provides for the possibility of quoting jobs for minors.

Law of the city of Moscow of December 22, 2004 N 90 "On job quotas" can be cited as an example of the implementation of the above laws in the legislation of the constituent entities of the Russian Federation.

Labor relations can be established on the basis of a court decision on the conclusion of an employment contract.

Paragraph 2, part 3 of Art. 391 of the Labor Code of the Russian Federation and the resolution of the Plenum of the Armed Forces of the Russian Federation on the application by the courts of the Labor Code of the Russian Federation indicate the existence of a special category of labor disputes - refusal to hire.

Accordingly, if the court decides on the groundlessness of the refusal to hire, the conclusion of an employment contract for the employer is mandatory and can be enforced.

3. In the original version of Art. 16 of the Labor Code of the Russian Federation, the emergence of labor relations on the basis of the actual admission of the employee to work with the knowledge or on behalf of the employer or his representative in the case when the employment contract was not properly executed, was indicated in part 2 along with other grounds additional to the employment contract.

In 2006, the actual clearance to work was separated into a separate part 3.

Part 2 of Art. 67 of the Labor Code of the Russian Federation draws attention to the fact that an employment contract that is not executed in writing is considered concluded if the employee started 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 conclude an employment contract with him in writing no later than three working days from the date of the actual admission of the employee to work. Thus, the actual admission to work is, rather, not an independent basis for the emergence of an employment relationship, but a method of concluding an employment contract, which does not relieve the employer of the obligation to formalize it in writing.

As noted in clause 12 of the resolution of the Plenum of the Armed Forces of the Russian Federation on the application by the courts of the Labor Code of the Russian Federation, if the employment contract was not drawn up properly, but the employee started 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 must, no later than three working days from the date of actual admission to work, draw up an employment contract in writing (part 2 of article 67 of the Labor Code of the Russian Federation).

In the ruling of the Perm Regional Court of May 30, 2011 in case No. 33-5191, attention is drawn to the fact 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) either by local regulations or by virtue of an employment contract concluded with this person, is empowered to hire employees, since it is in this case, when the employee is actually admitted to work with the knowledge or on behalf of such a person, labor relations arise (Article 16 of the Labor Code of the Russian Federation) , and the employer may be charged with the obligation to draw up an employment contract with this employee in an appropriate manner. Thus, the legislator provides for certain conditions, the presence of which would make it possible to draw a conclusion about the actual labor relations.

Federal Law of December 28, 2013 N 421-FZ supplemented the commented article with Part 4, according to which the actual admission of an employee to work without the knowledge or instructions of the employer or his authorized representative is prohibited. In this regard, it should be noted that according to Part 2 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation the actual admission to work by a person not authorized by the employer, if the employer or his authorized representative refuses to recognize the relationship that has arisen between the person actually admitted to work and this employer, labor relations (does not conclude with the person , actually admitted to work, an employment contract), entails the imposition of an administrative fine on citizens in the amount of three thousand to five thousand rubles; on officials- from ten thousand to twenty thousand rubles.

Another comment on Art. 16 of the Labor Code of the Russian Federation

1. By virtue of the principles of freedom of labor (part 1 of article 37 of the Constitution of the Russian Federation) and the prohibition of forced labor (see article 4 of the Labor Code and the commentary to it), labor relations between an employee and an employer can arise in our country only on the basis of a voluntarily concluded labor agreement with the free expression of the will of its parties. In this sense, an employment contract is a universal basis for the emergence of labor relations of any kind. In practical terms, this means that the work of each employee, used in the framework of legal relations that have signs of labor (see article 15 of the Labor Code and the commentary to it), not only can, but must be accompanied by the conclusion of a written employment contract (see article 67 TC and commentary to it). The absence of such an agreement usually means a violation by the employer of the requirements of labor legislation with all the ensuing negative consequences for him (see article 419 of the Labor Code and the commentary to it).

2. An employment contract is a law-forming legal fact, with which the law connects the emergence of an employment relationship filled with the rights and obligations of its parties (see Articles 21, 22 of the Labor Code and comments to them). In this capacity, an employment contract is, as a rule, a self-sufficient basis for the emergence of various employment legal relationships.

At the same time, a law, another normative act or charter (regulation) of an organization may complicate the employment procedure for certain categories of workers and employers and establish procedures preceding or accompanying the conclusion of an employment contract, which involve the performance of certain actions that have the properties of legally significant facts. Together with the employment contract, they form the so-called complex factual composition as a set of single legal facts occurring in a certain sequence. The last in the chain of these facts is usually an employment contract, with the conclusion of which the formation of a complex factual composition is completed, giving rise to the corresponding labor relationship. The Labor Code establishes seven such complex structures: 1) election to office; 2) election by competition; 3) appointment or confirmation in office; 4) assignment to work by statutory bodies on account of the established quota; 5) the issuance of a court decision on the conclusion of an employment contract; 6) recognition of relations arising on the basis of a civil law contract, labor relations; 7) the actual admission of a person to work. Some of them are devoted to separate articles of the Labor Code (see Articles 17 - 19.1 of the Labor Code and comments to them).

3. Part 2 of the commented article provides for the emergence of labor legal relations on the basis of a complex factual composition, including an act of assignment to work on account of the established quota, and is usually used to ensure the employment of persons who have a deliberately reduced competitiveness in the labor market. This employment option is to a certain extent contrary to the interests of the employer, since it limits his freedom in choosing the employee he needs. However, in this case, the priority is deliberately given to the interests of employees and, to a certain extent, of society as a whole. The number of persons employed in this way, federal and regional legislation includes: disabled people; orphans; children left without parental care; graduates educational organizations; citizens dismissed from military service by conscription; persons under the age of 18 and other categories of citizens experiencing difficulties in finding a job and therefore in need of increased social protection (see, for example, Article 21 of the Federal Law of November 24, 1995 N 181-FZ "On social protection of disabled people in the Russian Federation ").

4. Part 2 of the commented article provides for the emergence of labor legal relations on the basis of a complex factual composition, which includes a court decision on the conclusion of an employment contract. Making such a decision is possible under the following conditions: a) unjustified refusal to hire a person (see Art. 64 of the Labor Code and the commentary to it); b) appeal by this person of the fact of refusal to conclude an employment contract in court (see Art. 391 of the Labor Code and the commentary to it); c) the court makes a decision to compel the employer to conclude an employment contract with the relevant person. After the relevant court decision has been made, the employer must conclude an employment contract with a person whom he previously refused to employ.

When making this decision, the court does not determine the specific content of the relevant labor contract, therefore, in different cases, it can be determined in different ways. When the unjustified refusal to hire was accompanied by a preliminary announcement by the employer of the specific conditions of the employment contract, it is these conditions that should constitute the content of the contract concluded on the basis of a court decision. This situation does not always occur, more often you have to face the fact that a person getting a job has only the most general information about the work required by the employer and the amount of his payment. For this reason, the parties, executing the court's decision, must re-agree on all, except for the conditions of the employment contract known at the time of the initial attempt at employment. The minimum set of these conditions is specified in Art. 57 of the Labor Code, and the starting points defining the limits of the employee's claims and the minimum of the corresponding obligations of the employer should be recognized as the standard working conditions of employees performing similar labor functions for this employer. In the case when the employer does not have such employees, one should be guided by the standard working conditions characteristic of the employment contracts of employees of a similar category who work in the same locality.

Such a statement is based on the provisions of Art. 3 of the Labor Code, prohibiting discrimination against an employee in comparison with other workers, and part 5 of Art. 2 of the Labor Code, which enshrines the employee's right to fair working conditions, which in this situation must be recognized as the terms of employment contracts, which are most common for a given employer or in a given locality for employees of the corresponding professional category.

It should be especially noted that in the absence of an agreement on another date of entry into force of such an agreement, it is necessary to consider the day of the employer's refusal to conclude an employment contract with this employee.

5. The conclusion of an employment contract, as a rule, must precede the use of labor of any employee (see Articles 63 - 71 of the Labor Code and comments to them). However, Part 3 of Art. 16 of the Labor Code made one exception from this rule, by virtue of which the act of admission to work, included in a complex factual composition, giving rise to labor legal relations with a specific person, always precedes the conclusion of a contract. But for the recognition of this fact as an element of such a complex factual composition, certain conditions are also necessary. First of all, it is required that the admission to work was made by the subjects authorized to commit such actions (see paragraph 12 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004 N 2 "On the application of the Labor Code of the Russian Federation by the courts of the Russian Federation"). These subjects include: the employer himself in the case when he is represented by an individual; persons performing the functions of the sole or collegial bodies of the employer-organization, whose competence includes the authority to hire; other persons, although not having the authority to hire, but who were acting at the time of the actual admission of the person to work on a direct order or with the knowledge of the employer or his authorized representative. All these persons in most cases belong to the managerial personnel of the employer, who are directly entrusted with the function of staffing the activities of the latter. Employees who are not such personnel should generally not be considered as persons officially representing the employer and therefore capable of performing any actions that are legally significant for him. Actual admission of an employee to work by such persons without the knowledge or instructions of the employer or his authorized representative is prohibited.

At the same time, in practice, cases of admitting a person to work as a representative of the organization's management personnel are widespread, who did not formally have the necessary powers for this and therefore acted in conditions of exceeding their powers without the knowledge or without a special order of the employer. However, due to specific circumstances, an employee who is admitted to work may have good reasons to perceive the relevant manager in this situation as an official representative of the employer who has the necessary powers to perform such actions.

When resolving such cases, it is necessary to proceed from the following considerations. Labor organization and labor management are the functions of the employer, which result from his economic position as the sole owner and user of all factors of his economic activity, therefore, the employer must carry out all these functions at his own risk. The consequence of this is the imposition on him of the burden of bearing all the consequences for the negative results of his business, including responsibility for the actions (inaction) of his employees in the course of the performance of their labor duties in relation to third parties.

The employer can perform his functions efficiently and ineffectively. When their effective implementation takes place, the employer adopts all the necessary local regulations, including internal labor regulations, which give everyone who starts a job with a clear idea of the procedure for hiring, the rights and obligations of employees, the competence of managers, etc. In such conditions, it is practically impossible to accidentally involve in employment relationships those persons who do not have the necessary powers for this.

A different situation arises when the employer performs ineffectively the relevant functions. In this case, there may be no local regulations at all that regulate the competence of specific managers and the procedure for hiring. Then any person entering a job for this employer is initially deprived of the opportunity to get a clear idea of the real powers of the person who negotiated with him about employment and allowed him to work. Taking into account that the employer must bear economic and legal responsibility for the negative consequences of the ineffective organization of work of his employees, the actual admission to work of a specific person in such a situation entails at least the employer's obligation to pay him actually worked time (work performed), and with the consent of the employer or his authorized representative - the emergence of an employment relationship (see Art. 67.1 of the Labor Code and the commentary to it).

Consultations and comments of lawyers under Article 16 of the Labor Code of the Russian Federation

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