Norms Of Labor Law Research Articles

Особенности дистанционного труда: сетевая и платформенная занятость

The article offers the interpretation of the phenomenon of "network and platform labor employment", clarifies the legal nature, as well as general and special signs. The analysis of the norms of labor legislation in order to ensure the social and labor rights of the "network" worker and the review of the rights protection practice show the collisions and gaps of the local legal regulation due to insufficient legal succession. The problems of ambiguous understanding in differentiation of platform and network employment, non-systemic approach of public regulation connected with increase of employee's load when using hybrid form of labor, and also legal indifference of "platform employers" are disclosed. The specifics of law enforcement for the protection of workers' rights allow us to argue about the imperative of compliance and enforcement of labor law norms in the use of information and communication and digital technologies in the implementation of distance employment.

The procedure for remuneration of creative workers: Russian practice

The salary received by an employee under an employment contract is, as a rule, his only source of livelihood. Within the framework of this article, some problems of remuneration of creative workers are considered during the period when they do not participate in the creation and (or) performance (exhibit) of works or do not act. The article concludes that abuse by employers of the freedom granted to them by Part 5 of Article 157 of the Labor Code of the Russian Federation leads to a significant deterioration in the position of creative workers in comparison with workers in other professions. At the same time, the norms of differentiation should not be interpreted arbitrarily in violation of the Constitution of the Russian Federation and the fundamental norms of labor law, be discriminatory. It is concluded that the freedom of the employer as a party to the employment contract, even within the framework of the institution of remuneration, should be limited within certain limits. The ways of improving the current labor legislation are proposed.

Application of civil law in the regulation of labour relations

The article presents an analysis of situations in which civil law is applied in the regulation of labor relations. The authors note that civil law is applied in the regulation of labor relations in several cases. The most common situation is the reference rules provided for by the Labor Code of the Russian Federation itself, which directly provides for situations in which the courts can apply civil law rules when regulating labor relations. In some cases, if there is a gap in law, the courts apply the norms of the Civil Code of the Russian Federation when considering labor disputes, filling the gaps in the regulation of labor relations. In a number of cases, the Labor Code of the Russian Federation adopted civil law structures, although in this case it is no longer possible to talk about the application of civil law norms, since in the case of transferring these structures to the Labor Code of the Russian Federation, they become labor law norms. Also, in practice, there are situations when, simultaneously with labor relations, other relations arise, including civil law relations. In these cases, the courts also apply civil law. The authors describe these situations, give examples from judicial practice, and also propose ways to solve the defects arising in the regulation of labor relations.

Peculiarities of labor of medical and pharmaceutical workers: a comparative analysis of legislations of Kazakhstan and some OECD countries

This article discusses some issues of labor regulation of medical and pharmaceutical workers, the peculiarities of health systems in some countries of the Organization for Economic Cooperation and Development, a comparative analysis of their experience and Kazakhstan is carried out. The specificity of the legal status of medical and pharmaceutical workers is also considered, which is explained by the fact that its regulation is based not only on general norms of labor law, but also on special regulations affecting various features of the activities of this category of workers. At the same time, it is noted that the basis of the legislative regulation of the work of medical and pharmaceutical workers is the generally recognized principles and norms of international law, as well as the norms of national legislation. The article focuses on the fact that among the variety of sources concerning the legal status of various categories of workers, there is no separate comprehensive study devoted to the peculiarities of legal regulation of both medical and pharmaceutical workers, in connection with which the chosen topic of scientific research is updated.

Employee privacy protection versus interests and property employer

PurposeThe purpose of this paper is to provide a legal analysis of some chosen aspects of protection of privacy of employee as one of its personal (personality) rights in labour-law relations so how to follow from the actual legal state of legislation of property protection and other rightful interest of an employer.Design/methodology/approachCurrent legislation, in general, provides adequate privacy protection to employees in labour-law relations, but in the opinion of the authors is not quite adequately balanced with adequate legislative protection of property rights and employer private in the current legislative status of employee privacy protection. Employee privacy protection should be balanced by the increased protection of employer the interests who bears responsibility for the results of productive activities towards third parties and public power bodies, but responsible for any damage incurred to his employees. Authors of the paper are aware that the constitutional order of the Czech Republic, the Civil Code, EU legislation and the legal norms of labour law provides, in general, a sufficient guide for the fair and equitable application and interpretation of relevant law norms in the monitored area, next suggest realized legislative changes or additions in the area of employers protection of the interests and property in labour-law relations on the background of employee privacy protection.FindingsThe authors are of the opinion that the proposed change is not a denial of constitutional rules and legal provisions for the protection of personality under the Civil Code and consider it to be a balanced and professional experience to apply. Its purpose is to exhaustively identify the reasons for the introduction of control mechanisms, without prejudice to the principle of use only to the extent necessary and proportionate manner.Research limitations/implicationsRe-codified private law after 1st January 2014 is in many cases very a cased interpretation. For the issue of the interests and property protection of the employer on the backgrounds of the employee privacy protection would be appropriate to legislative more elaborate the particular legal passages and chapters of the legal text, and thus reduce the scope interpretation of the court decision. To stimulate discussion on the topic authors propose the following legislative adjustment provisions of §316 paragraph 1 and 3 of the Labor Code. The proposal allows for even that is rarely possible to get an audio recording that an employee in the course of his work, even without prior notice, if it is a compelling reason for involving the exercise and protection of employees.Practical implicationsEmployees may not, without the consent of the employer to use it for their personal use, production and employment employer resources including computers nor its telecommunications equipment. Compliance with the ban in the first sentence, the employer is entitled to adequate controls. The employer shall not, except as noted below, interfere with the privacy of employees in workplaces and public areas of the employer that the employee undergoing open or covert surveillance, interception and recording of his telephone calls, checking e-mail or check the correspondence addressed to employees or making video and audiovisual recordings employee during his employment. These control mechanisms employer is entitled to a proportionate manner and to the extent necessary in the following cases: on grounds of legitimate interests and property of the employer against the threat or violation, on grounds of health and property and other employees and other serious reasons. If it is for the employer is no reason that justifies the implementation of control mechanisms under paragraph 2, the employer is obliged to inform employees directly about the extent of control by way of implementation. The obligation to inform employees not arise in cases where there is an imminent risk of injury to the health or property of the employer, the employee, other employees or third parties or in the case of sound recording employees when acquired or used for the exercise or protection of other rights or legally protected interests of others people.Originality/valueThe weaker subordination position of the employee in labour-law relations requires consistent protection and its personal interests towards employer follow from labour-law relations. These regulations have to have particular legal limits so that there was no threatened or even directly touched personal and personality rights of the employee such as honour, human dignity, ethics, morality, reverence, mutual tolerance and labour-law relations in relation to equality with participants with that employer carry responsibility for performance and results do work and it even towards to third persons when it has right to provide effectual protection property and personality rights. The proposal allows for even that is rarely possible to get an audio recording that an employee in the course of his work, even without prior notice, if it is a compelling reason for involving the exercise and protection of employees.

To the question of remuneration for creative workers

The salary received by an employee under an employment contract is, as a rule, his only source of livelihood. Within the framework of this article, some problems of remuneration of creative workers are considered during the period when they do not participate in the creation and (or) performance (exhibit) of works or do not act. The article concludes that abuse by employers of the freedom granted to them by Part 5 of Article 157 of the Labor Code of the Russian Federation leads to a significant deterioration in the position of creative workers in comparison with workers in other professions. At the same time, the norms of differentiation should not be interpreted arbitrarily in violation of the Constitution of the Russian Federation and the fundamental norms of labor law, be discriminatory. It is concluded that the freedom of the employer as a party to the employment contract, even within the framework of the institution of remuneration, should be limited within certain limits. The ways of improving the current labor legislation are proposed.

Nature and classification of special principles of national labour law

Most often, the principles of law in specialized literature are understood as the “initial principles”, “ideas” and “provisions” of law. It seems that such conclusions could only be made from the standpoint of legal positivism, which restricts essentially “all” law only to the norms of labour law contained in national legal acts. The article makes a different conclusion: ontologically homogeneous elements are synthesized from the position of the scientifically substantiated concept of integrative legal understanding, first of all, the principles and norms of labour law contained in a single, developing and multilevel system of forms of national and (or) international labour law implemented in the state. With this theoretical approach, the principles of law can be controversially referred to as quite vague “principles,” “ideas,” and “positions”. In support of their position, the authors of the article present several vivid examples of application of the Ruling No. 21 of the Plenary Session of the Supreme Court of the Russian Federation on June 2, 2015 “On Certain Issues that Arose in the Courts when Applying Legislation Governing the Work of the Head of the Organization and Members of the Collegial Executive Body of the Organization”. The article provides an overview of ideas about the principles of law and their change in the pre-revolutionary, Soviet and modern periods. The authors emphasize that the special principles of national labour law are derived from the fundamental (general) principles of both national and international law which, by their nature, constitute undeniable law (jus cogens) binding on law-making and law-enforcement agencies as well as officials. The article advocates the position that the special principles of national labour law are the fundamental, primary elements of the labour law system that independently regulate labour relations in order to specify the norms of labour law.

CONSTITUTIONAL INNOVATIONS AND SOCIAL VALUES OF THE STATE IN THE CONTEXT OF THE PRECARIOUS EMPLOYMENT DEVELOPMENT

The most important political event in 2020 was the nationwide vote on the approval of amendments to the Constitution of the Russian Federation. Some of the adopted amendments directly concern the social sphere; they are designed to ensure an increase in the well-being of Russian citizens and the level of their social protection. This has actualized scientific research on social justice in all social sciences and humanities. In this regard, legal science is most interested in questions related to at least two aspects. First, to what extent are the amendments to the Russian Federation Constitution relevant from the point of view of the social sphere current state? To what extent are they conditioned by the current agenda and modern social relations content? On the other hand, to what extent does the current legislation designed to serve the implementation of the constitutional foundations meet the requirements of the Basic Law? Do not the provisions of the Constitution become an unattainable bright ideal in the modern system of legal regulation of specific legal relations? This work is devoted to the formulation of precisely these questions. It provides examples from the sphere of regulation of social and labor relations, which make it possible to talk about the difficulties that the law is already facing today, not having sufficient funds in its traditional arsenal to ensure the implementation of fair social standards established in the Constitution. The development of employment non-standart forms, the precarization of the labor market, an objective decrease in the number of hired workers in the total number of employed, creates a significant circle of subjects who today do not have access to the rights and guarantees established by the Constitution, since they are traditionally ensured by the norms of labor law, which does not apply to these citizens. Based on the experience of individual foreign countries, it is concluded that in order to fully implement the constitutional foundations and principles in the world of work, it is necessary to extend certain traditional labor rights and guarantees to the self-employed and workers employed on online platforms.

Classification of employer's acts containing labor law norms

Classification of employer's acts containing labor law norms

Comparative legal analysis of the legislation of Kazakhstan and some OECD countries on the labor peculiarities of medical and pharmaceutical workers

The article discusses some issues of labor regulation of medical and pharmaceutical workers, the peculiarities of health systems in some countries of the Organization for Economic Cooperation and Development, a comparative analysis of their experience and Kazakhstan is carried out. The specificity of the legal status of medical and pharmaceutical workers is also considered, which is explained by the fact that its regulation is based not only on general norms of labor law, but also on special regulations affecting various features of the activities of this category of workers. At the same time, it is noted that the basis of the legislative regulation of the work of medical and pharmaceutical workers is the generally recognized principles and norms of international law, as well as the norms of national legislation. The article focuses on the fact that among the variety of sources concerning the legal status of various categories of workers, there is no separate comprehensive study devoted to the peculiarities of legal regulation of both medical and pharmaceutical workers, in connection with which the chosen topic of scientific research is updated.

ПРОБЛЕМА СООТНОШЕНИЯ ЛОКАЛЬНЫХ НОРМ ПРАВА С КОРПОРАТИВНЫМИ НОРМАМИ

This research article, as the title suggests, is devoted to the general theoretical problem of the relationship between local legal norms and corporate norms. In the conditional first part of the study, local law norms are analysed, including from a historical perspective. Noting that the problem of local regulation has been the focus of attention of Soviet scientists (N.G. Ale-xandrov, R.I. Kondratyev, S.S. Karinsky, F.M. Leviant, L.I. Antonova), it is emphasized that local acts were originally understood as the result of rulemaking organizations, enterprises, institutions in the field of labour relations. An analysis of modern legal educational literature shows that scientists, when classifying the norms of law, either do not mention the existence of local norms of law at all, or show insufficient attention to their analysis, limiting them-selves to a few phrases. In doing so, authors often unreasonably fail to distinguish between local and departmental legal regulation or local and local legal regulation. Analyzing the types and essential features of local legal acts: their volitional content, intra-organizational character, bylaw nature, dynamism and stability, multiple application, duration of existence, compulsory for the addressees of norms, maintaining by the coercive power of the state, the author rightly states that all local acts arise by direct instruction of law, indicating that on a given issue This assertion is supported by examples of labour law and education law. By focusing on local labour law norms, the necessity of their adoption is justi-fied, and mandatory local law norms are analysed. It is thought that one of the current problems concerning local rules of law is their rela-tionship to corporate rules. It is the fact that many authors unreasonably refer to the norms of individual state organisations, i.e. local norms of law, as corporate norms. The author takes the position that corporate norms are rules of conduct established and provided by non-state organizations (political parties, public organizations, non-state institutions and enterprises, etc.) and apply to their members; they are contained in the statutes, regulations and other regulations of non-state organizations and determine the formation of these organizations, their structure, competence, rights, duties and responsibilities of their members. Moreover, the paper defends the view that corporate norms include, first, non-social cor-porate norms: technical norms; sanitary and hygienic norms; physiological norms; biological norms; second, social corporate norms: corporate customs, traditions, aesthetic, business customs, legal norms. In conclusion, it is argued that, although both local legal norms and corporate norms are intra-organisational in nature, they should be distinguished. Moreover, corporate norms, which have both technical and social aspects, should also be seen as having a legal aspect, implying the presence of corporate law norms.

Условность применения для регулирования труда работников - иностранных граждан отдельных норм трудового права

The article under consideration, using the example of the labor legislation of the Russian Federation, describes the procedure for applying certain provisions of regulatory legal acts to regulate the work of employees who are foreign citizens and stateless persons, in cases where the application of such norms involves administrative procedures, including those in force in the state of the employer for foreign citizens and stateless persons. As part of the consideration of this issue, the impact of administrative procedures, primarily provided for in the Russian Federation by migration legislation and legislation on the legal status of foreign citizens and stateless persons, on the application of labor law norms, the impact of the status of a foreign citizen and a stateless person on the mechanism of action of labor law norms, the achievement of the goals of their application is determined. Based on the analysis, it is concluded that their actions are conditional in relation to employees who are foreign citizens and stateless persons, and in some cases, the creation of prerequisites for discrimination by such a mechanism of action both in relation to a special category of employees and in relation to employees who are Russian citizens. In some cases, the regulatory regulation provided for by the legislation of the Republic of Kazakhstan is considered as a more successful option of adaptation within the framework of the implementation of administrative procedures of the legal status of a foreign citizen to the status of an employee.

Labour law defects and means of overcoming them

Introduction. Defects in labour law are certainly a negative phenomenon. They can be used by unscrupulous employees or employers, violating the rights and legitimate interests of the other party to the employment relationship. In addition, defects in legal norms create obstacles to proper law enforcement, which, in turn, threatens to misinterpret them and is also the cause of conflicting law enforcement practices. The aim of the article is to clarify the general characteristics of defects in labor law, their negative impact on law enforcement practice, as well as to outline some ways to prevent and overcome defects in labor law. Results. The article is devoted to the study of defects in labour law, their varieties and characteristics. The author's attention focuses on the issue of the negative impact of defects in labor law, in particular, law enforcement practice. The most common defects in labour law are analyzed. The necessity of legislative consolidation of the principle of good faith of the parties to labour relations in labour legislation is justified. The Supreme Court plays a significant role in identifying and overcoming defects in labour law at the stage of law enforcement in labor disputes. The existing court practice is a kind of litmus test of which norms of the current labour legislation are defective, ineffective, ambiguous, etc. In this regard, it seems appropriate when finalizing the draft of the new Labour Code of Ukraine to pay more attention to case law and analyze the legal position of the Supreme Court in disputes arising from labor relations, in order to identify the most common defects of labour law and prevent them at the rule stage. Conclusions. The defects in labour legislation can be prevented both at the stage of adoption of a normative legal act by formulating the idea of the draft law, its concept, and carrying out its proper examination. At the stage of legal implementation, defects can be eliminated by introducing amendments and additions to the normative act and/or by eliminating defective labour law norms. It is possible to overcome defects in the process of law enforcement with the help of methods of interpretation, application of analogy of law and analogy of lex.

FEATURES OF CONDUCTING FORENSIC AND ECONOMIC EXAMINATIONS RELATED TO THE FINANCIAL POSSIBILITY OF ENTERPRISES AND ORGANIZATIONS TO REPAY SALARY

The article is devoted to the generalization of approaches to conducting expert examinations and expert studies of late payment of wages. The main problems of non-payment of wages were discovered and identified and cases of illegal payment of wage arrears in violation of labor law norms were considered. The features of conducting forensic economic examinations related to the determination of the financial ability of enterprises to repay wage arrears have been studied. Based on the expert practice, the questions are summarized that are often posed to experts, pre-trial investigation bodies and the court during the investigation of criminal proceedings initiated under Article 175 of the Criminal Code of Ukraine, the subject of expert examinations of this category is formulated and the classification of objects and the purpose of expert research is given. A list of documents has been determined that must be provided to an expert for conducting a study in accordance with the applied methods and selected methods.

Federal Legal Acts Containing Principles and Norms of Labour Law

The article researches theoretical and practical problems of federal legal acts containing principles and norms of labour law: Constitution of the Russian Federation, federal constitutional laws, federal laws, legal decrees of the President of the Russian Federation, legal decrees of the Government of the Russian Federation and legal acts of other federal bodies of state power.

НОРМИ ТРУДОВОГО ПРАВА ЯК РЕЗУЛЬТАТ УКЛАДЕННЯ КОЛЕКТИВНИХ ДОГОВОРІВ

The article proves that as a result of concluding collective contracts (agreements), some of their terms can be defined as labor law norms. This is due to the fact that such conditions correspond to the following characteristics: they have a general character, formal certainty, the fulfillment of conditions is ensured by the force of state coercion, and they also have features of system and regulation. However, the terms of collective agreements shall meet a number of requirements defined by the law. First, the terms of collective contracts and agreements are binding on the enterpreneuerships that they apply to and the parties that have entered into them. Second, the terms of collective contracts or agreements that worsen the situation of employees in comparison with the current legislation are invalid, and therefore they cannot be included in their contents. Third, it is prohibited to include in employment contracts conditions that worsen the situation of employees in comparison with the current legislation, collective contracts and agreements. It should be noted that the current legislation of Ukraine also prohibits any interference that may restrict the legal rights of employees and their representatives or prohibit their exercise by the representative and executive authorities as well as commercial management, political parties, and employers in the conclusion and execution of these acts of a contractual nature. These and other rules for the adoption of collective contracts and agreements are enshrined in labor legislation and require mandatory compliance. However, their individual conditions may improve and establish new guarantees for employees in comparison with those defined by the labor legislation. Besides that, liability is also set for persons, who represent employers, trade unions or other accredited by workforce bodies. The liability goes to action in case information, needed for collective negotiations and implementing rightful control over collective negotiations, is not provided. It is done through agreements of disciplinary liability or fines amounting to 5 tax-free minimum incomes of citizens. The terms and order of applying fines are foreseen in the Code of Ukraine on Administrative Offences. Cases of this kind are considered if one of the parties or relevant commision sued collective agreement. Thus, implementing the conditions of collective agreements is secured by state coercion which is another feature of the rule of law. In addition, the author justifies the expediency of using the single term "collective agreements" instead of the terms "collective agreement and collective contracts", since the latter are essentially all agreements.

Economic indicator of the effectiveness of the labor law norms realization

Introduction. The implementation of legal norms is directly related to the quality of legislation and is a specific indicator of the effectiveness of legal norms. The indicator gives a vision of the quantitative and qualitative results of the implementation of legal norms, which are intended to form a conclusion about the effectiveness or ineffectiveness of legal norms. Purpose. The problem of the implementation of the effectiveness of labor legal norms has not been comprehensively studied, taking into account that in determining the general indicators of the effectiveness of the implementation legal norms should be used the concepts of "validity", "appropriateness", "usefulness", "factuality" and "economy" should be used economy". For the purpose of this paper the economy efficiency and its impact on the effectiveness of labor legal norms are examined. The methodological basis of the research are general scientific methods of cognition: dialectical, comparison and synthesis, methods of scientific induction and deduction. Result. The general concept of "economic efficiency" is based on the correlation of positive results of the functioning of a certain system with the cost of its existence or implementation. The effectiveness of implementing a legal norm may be in establishing feedback of the quality of the norm and its mechanism of action, which in their entirety do not produce a positive result, on the one hand, and, on the other hand, create grounds for changing legislation that is current in time. The indicator of economic efficiency of implementing a labor legal norm cannot exist by itself, because labor legal norms regulate relations between people on their work. Conclusions. Assessment of the economic efficiency of implementing a labor legal norms, as an indicator of the overall effectiveness of the norm and its achievement of its aim, is possible only because of the cumulative influence of legal, socio-economic, subjective, moral, psychological and material means of achieving the result.

Скрытые трудовые правоотношения: актуальные проблемы правотворчества и правоприменения

The article analyzes the positions of experts in the field of labor law regarding the nature and types of hidden labor relations from the positions of positivism and the scientifically based concept of integrative law understanding. The author criticizes the conclusions of experts based on a positivist legal understanding according to which an employment relationship arises on the basis of the reclassification of a civil contract into an employment contract or a civil relationship into an employment relationship. Based on the analysis of labor law norms, law enforcement practice in labor disputes and scientific points of view of experts in the field of labor law, which is based on a scientifically based concept of integrative law understanding, the author comes to the conclusion that hidden labor relations are a type of labor relations, have signs of labor relations, are common in the judicial practice of labor disputes and are the most urgent problem of Russian labor law. The author analyzes two modern types of hidden labor relations from the position of a scientifically based concept of integrative law understanding: the conclusion of civil contracts instead of labor contracts and the actual admission of an employee to work by the employer or with the knowledge or on behalf of the employer or its authorized representative in the case when the labor contract was not properly executed, within three days and later after the actual admission of the employee to work. The author analyzes the ways of protection of labor rights and legal interests in the field of labor from the position of a scientifically grounded concept of integrative law understanding and formulates law-making proposals for changing the norms of labor law.

Legal status of minors in the system of regulation of labor relations in modern Russia

This article is dedicated to examination of the system of legal norms determining the legal status of minors in the process of regulation of labor relations in the Russian Federation. The goal consists in the analysis of content of the legal status of minor citizens within the system of regulation of labor relations. The work solves the following tasks: determination and analysis of the elements of legal status of minors within the system of regulation of labor relations; systematization of the norms of labor law, the effect of which is defined by ensuring guarantees of minors’ rights; identification of the problems of ensuring legal status of minors within the system of regulation of labor relations; formulation of recommendations on improving legislation in this regard; as well as designation of promising directions for research in this area. The novelty consists in expansion of the circle of labor law subjects, whose status depends on honoring guarantees of the citizens under 18 years of age. Comprehensive analysis is conducted on the norms of labor law that protect the rights of minors. The article highlights the relevant problems of legal regulation, namely: legal status of employees under 14 years old, their parents and underage employers; protection of rights of underage workers; legislative allocation of separate categories of underage workers; legal regulation of permit to work with minors. The author suggests introducing additional requirements for the workers under 14 years old, as well as persons authorized to work with minors.

ЩОДО ПИТАННЯ ЗМІСТУ ПРАВОВИХ ІНСТИТУТІВ СИСТЕМИ ТРУДОВОГО ПРАВА

У статті досліджено проблеми визначення та класифікації інститутів галузі трудового права. Констатовано, що під правовим інститутом трудового права розуміється сукупність норм трудового права, метою яких є регулювання трудових, а також тісно пов’язаних з ними суспільно правових відносин, які складають відносно відокремлену частину (елемент) галузі трудового права України. Досліджено окремі інститути Загальної частини трудового права. Проаналізовано проєкти нормативно-правових актів у сфері праці, які наразі знаходяться на розгляді у Верховній Раді України, щодо визначення та змісту окремих інститутів трудового права.
 Ключові слова: система трудового права, інститути галузі трудового права, інститути Загальної частини трудового права, інститут робочого часу, інститут трудового договору.