Legal magazines: paper and electronic editions. Legal journals: paper and electronic publications Scientific articles on labor law

Practice of application of the Labor Code of the Russian Federation Analysis of changes in the Labor Code of the Russian Federation, comments on regulatory legal acts in the field of labor. Labor contracts and agreements Types of labor contracts. Transfers to another job. Guarantees for transfers and dismissals. Severance pay. Protection of employee personal data. The practice of concluding, changing and terminating an employment contract. Analysis of judicial practice. Work time. Rest time Types of working hours. Working time modes. Part-time working hours. Issues of the summarized accounting of working hours. The right to rest and its guarantees. Duration of weekly uninterrupted rest. Non-working holidays. The concept and types of vacations. Remuneration of labor Wages. Vacation pay. Hold. Delayed wages. Simple due to the fault of the employer. Prizes. Material liability The concept and limits of the employee's material liability. Circumstances precluding material liability of the employee. Determination of the amount of damage caused by the employee. The procedure for compensation for damage. Written agreements on full liability. Disciplinary responsibility Internal labor regulations. Types of disciplinary sanctions and the procedure for their application. Acceptance, dismissals and transfers Probationary period. Grounds for dismissal. Difficulty transferring to another position. Labor relations abroad International labor standards, ratified by the Russian Federation, ILO conventions. The latest conventions and recommendations of the ILO. Labor laws in foreign countries. European Model Labor Contract. Labor disputes Bringing the employer to administrative responsibility. Consideration of individual labor disputes in court. Enforcement proceedings on labor matters. Appeal to the Constitutional Court of the Russian Federation. Occupational safety The practice of occupational safety management. Issues of compulsory social insurance against industrial accidents and occupational diseases. Modern methods of teaching workers (insured) safety rules. Assessment of workplaces. Occupational safety certification. Sectoral features Peculiarities of regulation of work of homeworkers. Labor of minors. Labor contracts for women and persons with family responsibilities. Features of employment contracts of persons working part-time. Work experience and benefits, compensation, pensions Preservation of the place of work (position). Provision of extra vacations or extra days of rest. Providing a number of categories of workers with a pre-emptive right to remain at work when the number or staff of workers is reduced. The use of compulsory social insurance funds for payments to temporarily or permanently disabled employees. Protection of labor rights State supervision and control over the observance of labor legislation. Protection of labor rights of workers by trade unions. Self-defense by employees of labor rights. Calendar of industry exhibitions, forums, conferences for each quarter

Edition comes out 12 per year

areas such as the physiology of the working environment and the psychology of the working environment;

developing a preventive approach and improving culture in the field of ensuring the occupational safety and health of workers.

To solve these problems, it is possible to use various approaches - legislative regulation, dialogue within the framework of social partnership, support for ideas of business social responsibility, economic incentives.

Bibliographic list

Adapting to Change in Work and Society: a New Community Strategy on Health and Safety at Work 2002-2006. Brussels, 2002 // European Agency for Safety and Health at Work. URL: http: // europe. osha.eu.int/systems/strategies/future/com2002_en.pdf.

International Labor Office. 2012. Stress Prevention at Work Checkpoints: Practical Improvements for Stress Prevention in the Workplace (Geneva, International Labor Office). URL: www.ilo.org/wcmsp5/groups/ public / @ dgreports / @ dcomm / @ publ / documents / publication / wcms_168053.pdf.

Balashova I.E. Nanotoxicology and safety standard. URL: http: //www.nanometer. ru / 2010/06/11 / 12762523689015_214390.html.

Head I. Production of steel is safer // Russian business newspaper. 2013. No. 929 (51).

ILO report "Prevention of occupational diseases". 2013. URL: http: // www. ilo.org/public/ russian / region / eurpro / moscow / areas / safety / docs / 2013 / wd_report2013_ru.pdf.

Zreik L. Heart attack as an occupational injury under Israeli law // Labor law in Russia and abroad. 2012. No. 4.

Kiselev I. Ya., Lushnikov AM Labor law of Russia and foreign countries. International labor standards. M., 2008.

Kosyrev O.A., Moskvichev A.V., Simonova N.I. 2012. No. 11.

Lushnikov A.M. The employee's right to labor protection: new approaches // Social and pension law. 2009. No. 1.

Labor protection: results of 2013. URL: http://www.rosmintrud.ru/labour/safety/127.

The state of the occupational pathology service in the constituent entities of the Russian Federation. URL: http: // www.congress.niimt.ru/i/prez/BushmanovA_SSPVSRF.pdf.

Labor law and scientific and technical progress / ed. S. A. Ivanova. M., 1974.

Tsepin A.I. Labor law and scientific and technical progress / ed. S. A. Ivanova. M., 1974.

Chernyaeva D.V. New concept of labor protection // Labor abroad. 2006. No. 11.

Labor law in Russia: systemic problems of history and modernity

DEMIDOV Nikolay Voltovich, PhD in Law, Associate Professor of the Department of Sociology, Psychology and Law, National Research Tomsk Polytechnic University

634050, Russia, Tomsk, prosp. Lenin, 30

Email: [email protected]

The article analyzes the systemic contradictions inherent in the development of the branch of Russian labor law in the 19th-20th centuries. By means of historical and legal, comparative, dialectical methods, the author investigates the roots of modern problems of lawmaking and law implementation in the legal regulation of relations of hired labor. The author identifies the negative factors in the development of labor legislation that are common for Russia and the leading countries of the world. The main evolutionary problems of labor law include redundant center-

lization, a high degree of formalization of legal implementation, the industry's susceptibility to political conjuncture, a significant role of extra-legal regulators of labor relations, poorly developed security mechanisms for labor rights, insufficient state supervision, not always correct differentiation of the interests of an employee and an employer. A conclusion is made about the implicit, objective nature of the described defects, and the fundamental impossibility of overcoming them is noted.

Key words: labor law of Russia, history of labor legislation, problems of labor law, anthropology of labor law.

Russian Labor Law: System-Related Problems in its History and Modernity

N. V. DEMIDOV, PhD in law, associate professor

The National Research Tomsk Polytechnic University

30, Prospeskt Lenina, Tomsk, Russia, 634050

Email: [email protected]

The article analyzes system-related contradictions inherent to the development of the Russian labor law branch in XIX-XX. By means of historical-legal, comparative, dialectic methods the author investigates the roots of modern problems in law-making and law enforcement in legal regulation of hired labor relations. The author reveals negative factors in the development of the labor legislation, that are common for Russia and world leading countries. Among main evolutional problems in labor law, the author considers excessive centralization, a high degree of the right enforcement formalization, susceptibility of the branch to political environment, an important role of non-legal regulators of labor relations, low development level of security arrangements for labor rights, inadequate government supervision, a division of employees and employers "interests, that is not always correct. The author draws the conclusion about the implicit, objective nature of the described defects and notes an essential impossibility to overcome them.

Keywords: Russian labor law, history of labor legislation, problems of labor law, anthropology of labor law.

DOI: 10.12737 / 14376

The system of norms governing wage labor relations has passed a long historical path in Russian law. At the same time, regardless of the change of eras, the formation and evolution of labor law was determined by a number of implicit timeless qualities. The modern system of legal acts on labor has become the result of the consistent improvement of general conceptual approaches and specific legal norms. This process has been going on for about 180 years, if we count its existence since the adoption in 1835 of the Regulation on the relationship between the owners of factory establishments and workers who are hired. The origins of today's problems of legal regulation of labor relations, as well as positive principles, were laid in the factory legislation of the Russian Empire. Subsequently, pre-revolutionary

These developments were improved by representatives of Soviet and post-Soviet labor law, who managed to form a balanced and coherent legal industry.

The evolution of Russian labor law is a continuous search for the optimal balance of interests of the employee, employer and the state against the backdrop of changing historical conditions. With the universality of this concept, the category of optimality at different times was interpreted on the basis of the prevailing system of values, political and economic situation. In the period of the XIX - early XX century. the system of labor norms was understood as a phenomenon serving three categories of interests in decreasing order of importance: 1) the request of the owners of the means of production for the most productive use of labor; 2) the need for political

elites in ensuring national productive forces, preventing conflicts; 3) the interest of the class of wage workers in labor guarantees. The supremacy of economic motivations over considerations of social peace led pre-revolutionary Russia to the idea of ​​the primary provision of the means of legislation to the needs of employers. In an attempt to avoid such an imbalance, Soviet labor law chose a model of priority for the interests of the state and the worker. The industry received a socially protective mission, its task was to compensate for the economically subordinate position of the employee by expanding his organizational capabilities. Finally, the 1990s - 2000s. became an attempt to find a compromise between the needs of all those involved in the labor market. It is important that with any changes in the political course, the legislator carried out continuous work to create a system of checks and balances, to establish consistent rules in the field of hired labor.

Competition between normative legal acts and extra-legal regulators is a single regularity in the history of labor relations regulation in Russia. Key approaches in the regulation of labor recruitment were developed in the factory legislation of the 19th - early 20th centuries. At this time, there is a transition from an agrarian economic structure and features of consciousness to an industrial civilization. The objectification of social regulators is associated with this process. From the early Middle Ages to the middle of the XIX century. the public conscience recognized the traditional feudal practices of labor relations as sufficient. The acceleration of technological progress, the complication of social ties, and the statistical growth in the number of workers dictated the abandonment of moral imperatives in favor of positive law. With the dynamics of sources in favor of regulatory

new acts are directly related to the consistent formalization of domestic labor law. Formalization is understood as an extremely detailed and broad in scope normative prescription of the rules of conduct for all possible labor social relations, limiting the role of the court and the contract. The Russian legislator has consistently followed this extensive strategy throughout the entire history of the industry. The norms of law regulate both the basic forms of relations in the world of work and their modifications related to the peculiarities of the status of subjects or working conditions. The emphasis in the regulation of labor relations is shifted to acts of the federal level. State monopolization of the regulation of labor relations was carried out, especially in the Soviet and post-Soviet period, with the motivation to protect the employee from abuse by the employer. At the same time, it should be noted the low legal literacy of the Russian worker, which is compensated by state care. There are also objective historical prerequisites: the methodological influence of the ramified Byzantine law, as well as the factor of reception of the authoritarian Mongolian statehood. The paradigm of formalized law has become a system-forming Russian feature, the Western countries have largely followed the path of dispositive and contractual establishment of the rights and obligations of subjects of labor relations, broad powers of the court.

From the point of view of the effectiveness of differentiating the interests of the parties to an employment contract, the formalization of law is twofold. "Authoritarian" labor law stabilizes the labor market, offers fixed rules of conduct, and creates guarantees even for a passive worker. However, the evolution of domestic labor law along this path also generates negative consequences. Dialectics of the development of

This leads to the fact that the expansive intervention of the state in all aspects of labor relations sometimes oversteps the boundaries of expediency. The phenomenon of labor law bureaucratization is emerging. For compliance with the rule of law, the external observance of procedures becomes paramount, and not the real content of the relationship. As a result, the employer tries to circumvent the legislation, develop algorithms for such a circumvention. Consideration of a labor dispute is largely limited by the letter of the law; the jurisdictional authorities are entrusted with the function of technical verification of the presented evidence with the regulatory model. Landmarks of justice, expediency, rationality are blurred, “natural labor law” is ignored, and trust in law and the state is reduced in everyday consciousness. The statistics of labor conflicts are losing their credibility: the critical volume of violations of labor rights remains undetected. An example of destructive formalization is the problem of judicial evidence in a labor dispute. The courts prefer documentary evidence to witness testimony, ignoring the fact that in practice almost all documents are kept by the employer and are not at the employee's disposal. Another problematic aspect of formal law enforcement is the legal regulation of relations on termination of an employment contract. The Russian court in disputes over violation of the dismissal procedure by force of law does not consider the real reasons for terminating the contract, the objective interests of the organization, the rationality of dismissal. At the same time, foreign experience testifies to the invaluable role of court discretion in streamlining labor relations.

The disadvantage of formalizing labor law is the subsequent psychological delegitimization of any sources of law, except for acts

government agencies. First of all, the role of local regulations and collective agreements is diminished. The employee and the employer are not inclined to trust the rules, which are not based on the state imperative or authority.

The logic of the extremely detailed centralized regulation of labor relations is violated by the legislator himself. Thus, the institution of irregular working hours (Article 101 of the Labor Code of the Russian Federation) is enshrined in direct violation of the basic principles of labor law. There are no grounds for engaging in such work in the law, there is no limitation on the duration. The form of compensation instead of monetary payment established additional rest without connection with the actual hours worked. The legal definition of irregular working hours is incorrect: the categories "occasionally" and "out of necessity" are devoid of content. The existence of the institution of paid overtime work (Article 99 of the Labor Code of the Russian Federation) makes irregular working hours a way of unfair exploitation of the employee. There are gaps in the system of labor standards for the head of the organization. For example, upon his dismissal in connection with the adoption by the owner of a decision on early termination of the employment contract (Article 278 of the Labor Code of the Russian Federation), the law does not provide for a notice of dismissal, whereas in all cases of the absence of the employee's fault, such a notice is mandatory in Russian law. These and many other gaps are completely predictable. Attempting to centrally enforce rules of conduct for every possible case is initially unsuccessful. However, it became impossible for the Russian legislator to abandon the implementation of this principle from a certain critical point: by assuming the hegemony of legal regulation of hired labor, the state eliminates the possibility of filling the gap by means of decentralized

regulation. There is an “atrophy” of local rule-making and contractual labor law: the employee and employer, instead of active actions, prefer to wait for the state's will. This urgent problem is due to the historical approach of the Soviet legislator to the world of work with public law methods, with the tools of administrative law.

A consequence of the formalization of Russian labor law is the quantitative redundancy of sectoral sources of law. In the evolution of labor legislation, there is a tendency to a constant increase in volume, primarily due to bylaws of the federal level and acts of higher judicial bodies. At the same time, as it becomes more complex and branching, its effectiveness decreases. Knowledge and understanding of the system of labor standards is difficult not only for the employee, but also - in a fairly complete volume - for the lawyer. Difficulties of interpretation, proportionally equal for any volume of normative material, grow proportionately with extensive rule-making. Thus, legal illiteracy is additionally stimulated, skills in the field of labor rights protection are reduced, and general legal nihilism is growing.

The general and timeless problem of Russian labor law is the poorly developed mechanisms for the implementation of legal norms. The lack of real protection of the employee characterizes the industry already at the stage of its inception. In particular, according to the above-mentioned Regulation of 1835, the employer was obliged to draw up and inform each employee of the internal regulations. Given the progressive nature of the novel itself, there was no procedural support for the adoption, change, and compliance with the rules. The Regulations for the first time enshrined the rules

la termination of the employment relationship: the employer received the right to dismiss the worker for non-fulfillment of duties, as well as in connection with "bad behavior". The lack of specificity in the wording should not be judged solely as archaic. At the beginning of the XXI century. the grounds for dismissal in the labor law of Great Britain, USA, Ireland, Canada, Australia1 are understood in much the same way1. As foreign experience shows, it is not the detailed rules of behavior that become decisive for the harmonization of the sphere of wage labor, but the technologies for their correct implementation.

When creating algorithms for protection against abuse, pre-revolutionary legal norms were able to ensure a balanced existence of labor relations. The almost complete absence of state control over the master's power led to massive systematic violations of the rights and interests of workers. The factory inspection in the Russian Empire did not have the proper authority and staffing, and was often used for political purposes. Over the 30 years of its existence, the inspectorate has been extensively reformed five times (in 1886, 1894, 1899, 1903, 1905). In this light, the most important achievement of the Soviet legislator must be recognized as the development of a system for the actual implementation of labor law norms. This should include the creation of a comprehensive network of trade unions, the inclusion of workers in the management of the organization, the activity of party bodies in the prevention and resolution of labor conflicts, a great deal of work to foster a labor-legal culture. At the same time, high efficiency provides

1 cm .: Dawn D. Bennett-Alexander, Laura P. Hartman. Employment Law for business.

7th ed. N. Y. 2012. P. 4; Richard C. Busse. Your Rights at Work. Illinois, 2005. P. 3.

The specific mechanisms of the Soviet period were determined by the specifics of the social system, in which the state acted simultaneously as an ideologist, legislator, law enforcer, employer and organizer of the trade union movement. Having lost its patronage, modern labor law again faced the pre-revolutionary problem of the low efficiency of guarantees of workers' labor rights. Obviously, it should be solved taking into account the historical experience, which offers, in essence, only two models: paternalistic (detailed state supervision of social and labor relations, strengthening of public law principles) and civil (shifting emphasis in the implementation and protection of labor rights in the area of ​​the initiative of the participants in the labor relationship). Each strategy has fundamental shortcomings, which can basically be overcome by centralized measures, the most important is the completeness and consistency of these measures.

The source of problems of a special kind is the low legal culture of the employee and the employer. The wording of the factory inspector at the beginning of the XX century. S. Gvozdeva is applicable to all periods of development of domestic labor law: “First of all, I must state that the sense of legality in general among our workers is extremely poorly developed. It would be strange, however, to expect otherwise ”2. And if the actual legal illiteracy is surmountable, then much greater difficulties have always caused deviations of consciousness - legal nihilism and infantilism. The result is unpunished manipulation of the law by the employer, the employee's refusal to protect

2 Gvozdev S. Notes of a factory inspector (from observations and practice in 1894-1908). M., 1911.S. 108.

rights. With the external, subjective nature of this problem, it becomes a multiplier that deforms the course of any labor relations.

The difficulties of implementing labor law norms at all times are associated with the economic dominance of the employer. In the 1909-1910s. with a population of the Russian Empire of 113 million, the number of large factories did not exceed one and a half hundred3, the total number of workers in 1906 was 3.2 million4. At the same time, in the United States, only the trade unions of the American Federation of Labor had 2 million members. In general, in the United States at the beginning of the XX century. 275 thousand organizations employed about 24 million workers5. In Germany in 1907, the number of workers in the manufacturing, mining and construction industries was 26 million people, the same number were employed in agriculture and transport6. As a result, in Russia the supply of labor was many times higher than the demand for it, which forced workers to put up with the infringement of their rights in order to keep their jobs. In such conditions, independent legal protection could not establish itself as a habit of behavior. Having remained unresolved in a natural evolutionary way, this problem of pre-revolutionary factory law went to Russia at the beginning of the 21st century. The experience of developed foreign countries shows that overcoming the imbalance between the employee and the employer is possible not so much by means of

3 See: Collection of reports of factory inspectors for 1909, St. Petersburg, 1910, p. 102.

4 See: The number and composition of workers in Russia on the basis of the General census of the population of the Russian Empire in 1897, T. 1. St. Petersburg, 1906.

5 See: Donald M. Fisk. American Labor in the 20th Century. URL: http://www.bls.gov/ opub / mlr / cwc / american-labor-in-the-20th-century.pdf.

6 See: Klein F. Deutschland von 1897/98 bis 1917. Berlin, 1961. P. 10.

state supervision, how much through the formation of mechanisms for the implementation of labor law, as well as through the development of social partnership.

The dependence of Russian labor law on the current political course seems to be destructive. Contrary to the predominantly economic significance of labor standards, they were often used by the state to achieve opportunistic goals. This practice has already developed in the factory law. In 1896, the senior factory inspector of the Vladimir province, sent to mediate between the striking workers and the administration, reported: “I decided to act with the goal of not yielding in anything. Such a course of action seemed to me necessary as a counterbalance to the concessions made in the city of Kovrov before ”7. It is difficult to consider this kind of motivation objective, but it fit well within the framework of the conservative ideology of Nicholas II. Moreover, already at the end of the XIX century. in domestic science, studies were carried out that proposed a new legal concept: "The main goal of all legislation is to protect the mutual interests of employers and workers, to prevent an excessive increase in the rights of both" 8. DI Mendeleev spoke about the impossibility "to continue the previous patriarchal way of economic activity" 9. However, the discussion in society and the achievements of legal science are extremely

7 Shelymagin I.I. Factory labor legislation in Russia (2nd half of the 19th century). M., 1947.S. 81.

8 Davidov I. A. Industrial legislation of Russia // Factory industry and trade in Russia. SPb., 1896.S. 286.

9 Mendeleev D.I. Review of factory industry and trade in Russia // Factory industry and trade in Russia. SPb., 1896.S. 13.

not limitedly influenced the development of labor legislation.

Soviet labor law was also characterized by non-economic trends. So, in 1927, after five years of restoration of the national economy, the country's leadership needed an accelerated expansion of the industrial base. The state ideology declared labor to be a common cause serving the implementation of the communist idea and defense interests. The era of equating party documents with acts of state administration began. Wage-labor relations came under the control of the executive authorities and, in fact, ceased to be private-law. Liberalization of the 1950s and 1960s also proceeded according to the backstage party-state guidelines. The main transformation of the Khrushchev reforms was not a change in the rule of law, but the actual recognition of the employee's right to independently determine his or her labor destiny. At the same time, labor relations have not become fully private-law, governed by the interests of the parties through the mediation of the state. As a result, the adoption of labor decisions by the employee and the employer moved out of the area of ​​direct prescriptions, but in many aspects (undesirability of part-time jobs, complication of dismissal in order to combat staff turnover, artificial stimulation of trade union activity) was governed by tacit recommendations.

The inertia of the influence of the political environment on the legal regulation of the world of work manifested itself in the post-Soviet era. With the nominal preservation of the system of labor legal norms, the practice of their application has changed. So, measures of public influence, which previously served as an official disciplinary sanction, have spontaneously lost their significance. Arose-

la the practice of concluding civil law contracts instead of labor contracts. The dismissal for appearing at the workplace while drunk acquired a private character, while the Soviet state demanded mandatory punishment for this. Labor stimulation began to be carried out in a non-documentary manner. There was a self-removal of the state from the field of control and supervision over the observance of labor legislation.

Summarizing the above, it can be argued that modern Russian labor law is one of the stages of an inextricable process of technical, legal, cultural, social, scientific development. At the same time, the genesis and development of the industry are characterized by a number of destructive principles that are systemically characteristic of any historical period. Among such "genetic

problems include the susceptibility of the legal regulation of labor to the influence of the political environment, the periodic evasion of the legislator from taking into account objective economic patterns, the conflict between normative legal regulation and illegal practices, excessive formalization of labor law, not always the optimal degree of centralization in the regulation of labor relations, undeveloped security mechanisms of labor rights, underdevelopment of legal culture. The objective nature of these difficulties leads to the conclusion that it is hardly possible to completely eliminate them. However, this should not mean a refusal to counter their negative consequences and further improve labor legislation.

Bibliographic list

Dawn D. Bennett-Alexander, Laura P. Hartman. Employment Law for business. 7th ed. N. Y., 2012.

Donald M. Fisk. American Labor in the 20th Century. URL: http://www.bls.gov/opub/mlr/ cwc / american-labor-in-the-20th-century.pdf.

Klein F. Deutschland von 1897/98 bis 1917. Berlin, 1961.

Richard C. Busse. Your Rights at Work. Illinois, 2005.

Gvozdev S. Notes of a factory inspector (from observations and practice 1894-1908). M., 1911.

Davidov I.A. SPb., 1896.

Mendeleev D.I. Review of factory industry and trade in Russia // Factory and factory industry and trade in Russia. SPb., 1896.

Collection of reports of factory inspectors for 1909, St. Petersburg, 1910.

The number and composition of workers in Russia on the basis of the General census of the population of the Russian Empire in 1897 T. 1. St. Petersburg., 1906.

Shelymagin I.I. Factory labor legislation in Russia (2nd half of the 19th century). M., 1947.