Labour Code Research Articles

El período de prueba en el contrato laboral de acuerdo al ordenamiento jurídico ecuatoriano

The impact of the trial contract and its negative labor consequences, such as unemployment, leaving families without livelihood, is alarming since it is true that our Labor Code in its article 15 establishes that the trial period with a maximum temporary period of 90 days, this is a figure that ignores and does not protect the inherent and intangible principles and rights of workers. The same ones that are duly delimited in the Ecuadorian Constitution, since unilaterally the employer will terminate the employment relationship and in this case the workers will not be able to claim any economic stipend, unlike other contracts such as the indefinite one that if the employer terminates the employment relationship, an untimely dismissal is configured and in this way the worker would not be losing several rights as with a trial contract. It is then proposed, as a general objective: Analyze how test contracts do not generate job stability, thus violating labor principles, which is achieved through a qualitative methodological approach and methods such as analytical-synthetic, historical-logical and inductive.

THE RIGHT TO WORK UNDER CURRENT POLISH LAW

This paper addresses the important topic of the right to work in the context of current Polish law. After introducing the origins and axiological grounds of this right, the problem of the actuality and place of the right to work in Polish law is presented - in particular, selected regulations of constitutional law, the Labour Code and the Employment Promotion and Labour Market Institutions Act are analysed. The publication seeks to answer the fundamental questions: Has the right to work ever been included in the Polish legal order? Are we still dealing with this right? If so, what constitutes the right to work? Are the existing solutions the best possible?

ANTI-CRISIS ARRANGEMENTS IN THE POLISH LABOUR LAW SYSTEM

In the conditions of economic recession that affects the financial standing of employers, social dialogue instruments that enable them to continue to function are very important. In the Polish labour law system, the main instruments are agreements that suspend the application of the provisions of labour law (Art. 9(1) of the Labour Code), and agreements made to apply conditions of employment that are less favourable than the conditions specified in the contracts of employment (Art. 23 (1a) of the Labour Code). Both these types of agreements have de lege lata the status of labour law sources as defined in Art. 9 (1) of the Labour Code, because they are based on a statutory act, and regulate the rights and obligations of the parties to the labour relationship. In both cases, in their consequences, these agreements limit the financial and social benefits for the employees.

Home office z perspektywy postpandemicznej – szanse i zagrożenia. Analiza pracy zdalnej w ujęciu prawnym i społecznym

The growing interest in remote work and flexible forms of employment is undoubtedly due to technological development (including changes in the labour market) and measures taken to counteract the COVID-19 pandemic. The experience of this period allowed us to observe certain regularities in the field of remote work, revealing its pros and cons. This article aims to summarize the current state of remote work regulations and the possibilities opened up by the home office model. The first part describes the remote work regulations laid out in Polish legislation and the current state of the labour market, which affects the interest in flexible forms of employment. The article then details the new part of the Labour Code, which also influences the current shape of remote work. Focusing on the home office form (i.e., working from home), the author presents an exemplary enumeration of the advantages and disadvantages of the flexible employment models observable today, noting the opportunities and threats resulting from their use. Due to the impact of remote work on various areas of an employee’s life, considerations are conducted on both legal and social grounds. The last section is a summary of flexible forms of work and the chances of their success in the light of post‑pandemic achievements. It also briefly presents the hybrid work model as a solution that takes advantage of remote employment opportunities while minimizing the visible risks.

The importance of the professionalism of the personnel service for the employer (in disputes about the dismissal of employees)

Labor disputes about reinstatement, especially of employees dismissed at the initiative of the employer, indicate that in most cases the employer fails to prove compliance with the procedure established by the Labor Code of the Russian Federation. Mistakes are made by employees of personnel services at the stage of the beginning of registration of personnel documents. Judicial practice today demonstrates the importance of having high-quality and qualified lawyers and HR specialists. And how bad it is that employers save on them, because, getting into a labor dispute in court, the employer loses the case and incurs even more costs.

Dynamics of an Employment Contract in a Sports Transfer

The paper discusses some issues that arise when the employment relationship between athletes (coaches) and sports clubs is terminated in connection with the transfer of athletes (coaches) to other employers. Termination of an employment contract concluded between an athlete (coach) and a sports club is associated with the need to comply not only with the Labor Code of the Russian Federation, but also with the regulations of all-Russian sports federations, which are not identical. Termination of the employment relationship between an employee and an employer may be due to a number of reasons established in the legislation of the Russian Federation, including the expiration of the employment contract or the will of one of its parties to terminate the employment contract early. Early termination of such an employment contract generally takes place together with compensation payments subject to certain conditions (not related to «valid reasons» for termination of employment relations), the establishment of which is carried out by competent authorities in each specific case if there is a controversial situation. An alternative to early termination of the employment contract with an athlete is a temporary transfer of the employee to another employer, which provides ample opportunities for both the employee and the employer. In this sense, the suspension of an employment contract, which is also a feature of labor relations in sports, has the potential to extend to all categories of workers.

Nowelizacja Kodeksu pracy wdrażająca dyrektywę 2019/1152 w sprawie przejrzystych i przewidywalnych warunków pracy w Unii Europejskiej – analiza i ocena regulacji

The article aims to analyze the changes introduced on April 26, 2023, to the Polish Labor Code, adapting its regulations to the Directive (EU) 2019/1152 of the European Parliament and of the Council of June 20, 2019, on transparent and predictable working conditions in the Euro- pean Union. The objective scope of the article includes the obligation to provide information by the employer, parallel employment, the rules for concluding an employment contract for a probationary period, the request for a form of employment with more predictable and secure working conditions, and the requirements for terminating employment contracts. An attempt is also made to assess new regulations in terms of their compliance, accuracy and purposefulness with the recommendations of the Directive 2019/1152. In addition, attention was paid to the need for the introduction of an additional change in Polish regulations.

Praca zdalna po zmianach w Kodeksie pracy

One of the effects of the COVID-19 pandemic was the introduction of a remote work system for those employees who could work outside of the workplace. The adoption of such a solution was made possible by the Act of March 2, 2020, on special solutions related to the prevention, counteracting and combating of COVID-19, other infectious diseases and crises caused by them, the Polish Journal Of Laws from 2020, item 374, as amended, commonly referred to as anti-COVID, or anti-crisis, shield. A temporary solution designed to contain the spread of SARS-CoV-2 has become, over time, a regular form of work. Therefore, there was a need to regulate the rules of remote work. The Marshal of the Sejm received the draft of the act amending the Polish Labor Code and certain other acts (print no. 2335) concerning precisely remote work. The purpose of this publication is to present the aforementioned draft of the act concerning remote work, as well as an analysis of the provisions introduced in the Polish Labor Code.

Analysis of the New Labour Code in India

Analysis of the New Labour Code in India

Влияние учета производственных угроз на эффективность управления профессиональными рисками

In accordance with the decisions of the Government of the Russian Federation, the occupational safety management system is being reformed in the country. The new model of this system, built on the basis of occupational risk management techniques, in particular, using the Deming — Shewhart cycle, makes it possible to qualitatively improve the prevention of occupational injuries. To methodologically support the transition to a new model of labor protection, the main regulatory documents were prepared and approved, and additions were made to the Labor Code of the Russian Federation. However, the introduction of preventive mechanisms to improve working conditions is hampered by the problem of taking into account injuries of light and moderate severity. The established long-term practice of ignoring a significant number of industrial hazards conflicts with the requirements of mandatory implementation of procedures for managing occupational risks, which affects the efficiency of the activities carried out. In particular, in the European Union countries 10–40 times more accidents are registered than in Russia, but at the same time the injury severity rate there is 10 times lower. The International Labor Organization, using a special indicator on fatal injury statistics, suggested that the real number of people injured at work in Russia could range from 600 thousand to 1.2 million people in year. Using the example of Heinrich injury pyramid, the methods for recognizing industrial hazards that are in an obvious and hidden state are considered. Evidence-based statistics on the positive impact of the number of identified hazards on workplace safety are also provided. Taking into account the existing practice of risk accounting, it is proposed to use the injury severity coefficient as the main indicator of production safety. At the same time, one should strive not to reduce the injury frequency rate, but, on the contrary, to increase it, which will indicate an improvement in the recording of injuries.

Judicial protection of workers' labor rights: problems of implementation

The object of the study was the legal relations arising between the subjects of labor law regarding the protection of the labor rights of employees. The subject of the study includes theoretical and practical foundations of judicial protection of workers' labor rights. The author analyzes the judicial method of protecting the labor rights of employees, and also identifies problematic aspects of their practical application. In particular, the author noted that the employee, being the most vulnerable party of labor relations, needs more protection from the state. As a result, the current system of restoring balance in labor relations is mostly focused on protecting the labor rights of employees. The main conclusions of the study are: 1. Judicial practice on the protection of workers' labor rights is very extensive and diverse, but its essence basically boils down to one thing: an employer, being interested in obtaining the best labor resources at minimal financial costs, will always strive to protect the interests of his business, regardless of the requirements of the legislator. 2. The effectiveness of all methods of protecting labor rights often largely depends on the reasonable behavior of the employee until the moment of conflict with the employer. 3. Being a more vulnerable side of labor relations, an employee, when applying to the court, claims a special attitude due to the possible lack of knowledge of all the subtleties of legislative regulation of labor relations. As a consequence, if there are contradictions in the position of an employee and an employer, the court seeks to promote the former as a priority. At the same time, such a position in no way infringes on the rights of the employer. 4. One of the urgent problems of protecting the labor rights of employees in recent years is the substitution of labor relations with civil relations with the self-employed. The solution may be the introduction of relevant provisions in the Federal Law on the self-employed, the Tax Code of the Russian Federation and the Labor Code of the Russian Federation.

ЗАКОНОДАТЕЛЬНЫЕ ОСНОВЫ ВЫПЛАТ, ПРИЧИТАЮЩИХСЯ СОВМЕСТИТЕЛЯМ

The main message of this article is to ensure a fair procedure for remuneration of labor for persons working part-time. For these purposes, the article considered the conditions and procedure for paying wages to part-time workers as one of the essential conditions of the employment contract. Despite the fact that labor legislation gives employers many opportunities to establish various systems, forms, and amounts of remuneration for their employees, part-time workers have to justify their requirements regarding certain payments. Moreover, the paper presents an approximate calculation of wages. In addition to considering the remuneration of part-time workers, in the course of the study, the author also studied other payments that should be paid to part-time workers, in particular, payments provided for employees operating in areas with difficult and unfavorable natural and climatic conditions in which district coefficients are applied. Including the payment of severance pay, as well as penalties upon termination of the employment contract. Based on the results of the legislative analysis, in particular the new Labor Code of the Republic of Uzbekistan, as well as a comparative legal study, the author puts forward reasonable and adequate recommendations for improving the current state of the procedure for making payments.

Normative and legal regulation of social dialogue in the field of work

The article is devoted to issues of normative and legal regulation of social dialogue in the sphere of labor in Ukraine. Since the formation of a market economy and a civilized transition to the market are impossible without the functioning of an effective system of social dialogue. It is the social dialogue that should act as a way of civilized coordination of the interests of different groups when resolving the contradictions that arise and preventing conflicts in the socio-economic and labor spheres. Its effective development is one of the conditions for the European integration of Ukraine. Having analyzed the current legislation on labor, on collective contracts and agreements, special legal literature on social dialogue, a conclusion was made about the imperfection of the regulatory and legal regulation of social dialogue, which reduces the effectiveness and efficiency of social dialogue in the field of labor. For example, in the Law of Ukraine “On Social Dialogue in Ukraine” the definition of social dialogue is imperfect, the list of social dialogue bodies and the list of organizational and legal forms of social dialogue in the sphere of labor is incomplete, the place and legal status of social dialogue bodies in the sphere of labor also needs to be properly defined , who are participants in such relations, etc. The current Code of Labor Laws of Ukraine, draft Labor Codes do not contain special norms on social dialogue in the field of labor. Taking into account the legislative experience of foreign countries, the positions of domestic scientists, it is proposed to supplement the Code of Labor Laws of Ukraine, the draft Labor Code of Ukraine with a separate chapter “Social dialogue in the sphere of labor”, in which norms on the main provisions on social dialogue in the sphere of labor, including a list of institutional principles of social dialogue in the field of work with definition of their concept and content. At the same time, positive points in this direction were noted, in particular, the adoption of the Law of Ukraine “On Collective Agreements and Contracts” and the creation of a working group to develop a draft law on collective labor disputes. Since the question of improving the legislation of Ukraine on social dialogue and collective labor disputes and its adaptation to the legislation of the European Union is more timely than ever.

Особливості взаємодії суб’єктів кодифікації трудового законодавства в Україні

The article outlines the peculiarities of the development of the interaction between the subjects of the codification of national labor legislation. It is noted that the level of effective implementation of rights by employees and employers also determines the nature of the interaction between the subjects of the codification of labor legislation, which arises in connection with the process of implementation of the constitutional right to work by citizens. Therefore, in order to ensure equal opportunities for participation in the codification work of employees and employers, it is necessary to clearly define their basic rights in the Labor Code of Ukraine. In particular, the consolidation of the basic labor rights of employees and employers should take place in the aspect of expanding the application of international standards for the involvement of employees in making legally important decisions. The provision of equal rights for employees and employers and the focus of labor legislation on expanding the powers of employees and employers in the work process will allow optimizing labor relations as a whole. The following features of the interaction of subjects of the codification of labor legislation were determined: 1) involvement of public representatives, namely employees, employers and their associations in the process of adoption of the new Labor Code of Ukraine; 2) increasing the authority of codification in terms of expanding the labor rights of employees; 3) delegating the resolution of issues resolved at the centralized level to the local level; 4) coordinating the interaction of the subjects of the official codification of labor legislation in Ukraine and the Council of Europe, the European Commission as an institution of the European Union, which is entrusted with the functions of the executive body; 5) strengthening of collective agreement regulation within the framework of social dialogue, which affects the formation of new provisions of the draft Labor Code of Ukraine; 6) joint focus on harmonizing norms of the field of labor law and norms of labor legislation; 7) the need to create a single codification body in Ukraine – the Higher Codification Commission.

ТРУДОВИЙ ДОГОВІР ЯК ПІДСТАВА ВИНИКНЕННЯ ТРУДОВИХ ПРАВОВІДНОСИН В УМОВАХ ВОЄННОГО СТАНУ

The article is devoted to the issues of legal regulation of the employment contract as a basis for labor relations emergence in conditions of martial law. In conditions of Russia’s military aggression against Ukraine, this issue has become extremely important. The article examines the peculiarities of concluding an employment contract under martial law. An analysis of the changes made to Article 21 of the Labor Code over the past three years was carried out and the essence of the employment contract was clarified. The norms of the labor legislation, which regulated the employment contract conclusion in the pre-war period, and the changes in the norms of the legislation, which were introduced into the labor legislation in conditions of martial law, were analyzed. The specifics of concluding the employment contract with employees under martial law conditions were determined. During the research, it was found out that the legislator expanded the list of essential conditions that can be established by both parties in the employment contract and relate to the performance of work that requires professional and/or partial professional qualification, as well as conditions for the performance of work that do not require a person’s professional or partial professional qualification. It was concluded that the legal definition of an employment contract enshrined in Article 21 of the Labor Code is optimal and fully reflects the essence of the employment contract as an institution of labor law at the current stage of labor relations development. The norms of the Law of Ukraine “On the Organization of Labor Relations in Martial Law” were analyzed and it was noted that this Law was adopted in a timely manner, in difficult conditions for the country, namely at the beginning of Russia’s armed aggression, which enabled both sides of labor relations to settle their labor relations properly. The article draws attention to the fact that during the period of martial law in Ukraine, restrictions on the constitutional rights and freedoms of a person and a citizen, provided for by Articles 43 and 44 of the Constitution of Ukraine, were introduced. It was noted that the reform of labor legislation in conditions of martial law led to the need of developing new effective mechanisms for the implementation of legal norms in practice. Appropriate conclusions were made regarding the development of labor legislation during martial law, and positive changes in the regulation of labor relations were noted. Key words: labor contract, right to work, right to rest, employer, employee, fixed-term labor contract, restriction of the right to work, martial law.

Legal Protection Against Overtime Labor


 
 
 Human Rights Awareness Raising is a form of protection of workers from physical, technical and socio-economic protection provided by regulations governing the workplace. One of the problems that often occurs is overtime violations that are not in accordance with the provisions of Law No. 13 of 2003. One of the companies involved in implementing labor law protection is PT Hwaseung Indonesia. The purpose of writing this paper is to know the legal protection for overtime workers at PT. Hwaseung Indonesia. Based on the study, it is known that the Job Creation Law stipulates overtime work 4 hours a day and 18 hours a week. Overtime hours are extended in accordance with the provisions of Article 78 of the Labor Code, Article 32/2003. According to this, overtime work is only allowed up to 3 hours in a day and up to 14 hours in a week. In this case, PT Hwaseung Indonesia, did not fully comply with existing legal compliance because the company's maximum overtime time is 20 hours.
 
 

The Absence of the Employee due to the Medical or Diagnostic Examination of His or Her Child

According to the current Slovak legislation, which also determines the conditions for important personal obstacles at work, the employer is obliged to excuse the absence of an employee for the reason of accompanying his or her child to a medical facility for examination or treatment. The scientific paper deals with situations where it is necessary for an employee to accompany a child to various other diagnostic examinations which are not carried out in medical institutions. These obligations are imposed by specific legislation and must be fulfilled by the employee as the legal representative of minors in compulsory schooling or pre-primary education in relation to establishments operating under the education regulations. However, there is no excuse for the absence of an employee in the Labour Code or in other legislation in the area of education. Since these cases cannot be explicitly covered by any statutory regulation of personal obstacles to work on the part of the employee, a dispute arises in application practice between the employee and the employer as to the justification for the employee’s absence from work. This is also based on incorrect information provided by the education’s authorities who instruct the legal representatives that the employer must excuse the absence, as their child is undergoing certain examinations.

Chemical risks in the medical biology laboratory

Although biological/infectious risks are the most important in a medical biology laboratory, chemical risks should not be underestimated. Chemical products are used for analyses, and for disinfecting premises and equipment. Their toxicity imposes strict legislation, which is available to medical biologists in the French Labor Code, European legislation and Inrs (National Institute for Research and Safety) documentation. These sources are necessary because chemical risks are not taken into account by COFRAC (Comité français d'accréditation). The educational aim of this article is threefold: to identify the hazards and risks associated with the use of chemical products; to explain what to do in the event of an accident; and, finally, to provide information on prevention and protection.

Remote work in Ukraine: problems and prospects of improving its legal regulation

The article is devoted to the problems and prospects of legal regulation of remote work in Ukraine. Attention is paid to international and European standards dedicated to the features of remote work. Special attention is devoted to the study of the problems of limiting remote work for certain categories of workers under martial law. The conclusion is justified that the concept of “remote work” can be used to denote two phenomena that are different in their content. Firstly, remote work is a special mode of work that can be applied temporarily by the employer’s decision as a forced measure in the event of certain life-threatening circumstances or people’s health. Secondly, remote work as a special labour organization provides that teleworkers constantly perform work outside the employer’s location due to the specificity of their labour function. The use of an electronic digital signature in the interaction between the employer and the remote worker is a separate problem in the course of organizing remote work.The question arises about the financial costs of obtaining it (on whom they should rely)and the need to use such a signature when familiarizing the remote worker with the orders, job description, and local acts of the employer. Also, the possibility of bringing a teleworker to disciplinary responsibility remains an unsolved problem, in particular, in what way the disciplinary offenses of such a worker should be documented, and his guilt should be established if the improper performance of labor duties was due to technical reasons or other circumstances independent of the worker. The latter becomes especially relevant in the current conditions of a full-scale war with russia, given the difficult situation in the dilapidated energy system of Ukraine, constant power outages and lack of mobile or internet connection. Proposals regarding the need to improve the legal regulation of remote work in a separate section of the Labour Code are formulated. In particular with the regulation of the ways of interaction between the employer and the teleworker in the process of performing work (the order of protection and exchange of information, transfer of the employer’s tasks, control over their execution); access of teleworkers to opportunities for training and career growth; the mechanism for protecting the rights of teleworkers with the help of trade unions, their participation in collective negotiations and the resolution of collective labour disputes. Key words: remote work, special form of labour organization, labour contract on remote work, non-standard employment.

To the question of bonuses (current legal positions The Constitutional Court of the Russian Federation and Supreme Court of the Russian Federation)

The question of the legality of the payment of the premium does not subside in law enforcement practice. The reason for this is the incorrect wording of local regulations. The Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation delimited Article 135 of the Labor Code of the Russian Federation and Article 191 of the Labor Code of the Russian Federation. If these payments are of a regular nature and are accrued for the performance of indicators previously approved by the employer, then they are recognized by the courts as a guaranteed payment. In other cases, the bonus may be a one-time payment in accordance with Part 1 of Article 191 of the Labor Code of the Russian Federation. No matter how the employer tries to disguise the bonus, the courts will establish the legal nature of incentive payments during the dispute resolution process.