Blurring the Definition of Employment Relations in Russia: Case Law on the General Notion and Some Atypical Forms of Labor

Nikita Lyutov

doi:10.15388/teise.2019.113.11

Abstract

Transformation of Russian labour law in the last decades shows the clear trend to differentiation and fragmentation with constantly growing number of special norms covering specific (atypical) types of employment relationships. At the same time modern labour law reflects only some of recently appearing forms of employment, such as temporary agency work or telework. The paper deals with the definition of labor relations and some atypical forms of employment.

Highlights

Transformation of Russian labour law in the last decades shows the clear trend to differentiation and fragmentation with constantly growing number of special norms covering specific types of employment relationships
The case law in this area is abundant. Such criteria as subordination; regulation of the process rather than the result of work; usage by the employer of certain formalities that are due in an employment relationship; the personal scope of work; the existence of analogous work performed under employment contract; the duration or repetitive nature of a relationship, and certain others will be discussed in the paper with illustrations of how frequently courts use them as a marker of existence or lack of existence of the employment relationship
The criteria that are associated with work instructions, control over the work, and integration may be extracted from the text of Articles 15 and 56 of the Labor Code as follows: a) the employment contract is concluded to perform the “work function”, which is explained in the statutory definition of the employment relationship as “the work at certain position in accordance with internal work regulations, profession, specialization and qualification; specific type of assigned work.”

Summary

Determining the Existence of the Employment Relationship in General

The criteria that are associated with work instructions, control over the work, and integration may be extracted from the text of Articles 15 and 56 of the Labor Code as follows: a) the employment contract is concluded to perform the “work function” (trudovaya funktsiya), which is explained in the statutory definition of the employment relationship as “the work at certain position in accordance with internal work regulations, profession, specialization and qualification; specific type of assigned work.”. This “work function” is used as a distinguishing marker when a choice is made between civil law and employment contracts. The Supreme Court directly quotes the characteristics of an employment relationship, which are listed in Recommendation No 198 as the guide for the courts in establishing the fact of employment relationship

The Case-Law on the Definition of an Employment Relationship

General and Special Norms of Russian Labor Law

Temporary Agency Work

Other Atypical Forms of Work

Conclusion

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