One of the features of the sources of labor law is the unity and differentiation legal regulation labor. Labor law norms are divided into two groups:
1) general rules that apply to all employees;
2) special norms applicable to certain categories of workers (minors; women; disabled people; workers employed in work with harmful and hazardous working conditions; persons working in areas with special natural geographic and geological conditions, etc.).
The relationship between general and special norms expresses the unity and differentiation of labor law. Unity is manifested in general norms, and differentiation in special ones. General rules are binding on all owners or bodies authorized by them, can only be changed in the direction of improving the position of employees in comparison with current legislation. Special rules concretize general ones, supplement them, and in some cases establish exceptions from general rules. With extension
contractual principles in the regulation of labor relations, the number of special norms in social partnership acts - agreements at all levels and collective bargaining agreements, as well as in local regulatory legal acts.
Differentiation of legal regulation of labor by categories of workers is carried out in different legal ways: by including special provisions in general legislative acts on labor that apply only to a certain group of workers (for example, the Labor Code of Ukraine has separate chapters "Labor of women", "Labor of youth"), adoption of special normative acts that apply only to a particular category of employees (for example, the decree of the Cabinet of Ministers of Ukraine of 11.08.95, No. 648 "On the conditions of remuneration of persons working in mountainous regions"; Recommendations on the procedure for granting employees with irregular working hours of annual additional leave for the special nature of work, approved by order of the Ministry of Labor and social policy of Ukraine from October 10, 1997, No. 7, etc.).
In some cases, by excluding the possibility of applying any general norms of labor legislation to certain categories of employees (for example, civil servants are not subject to the rule prohibiting the dismissal of an employee at the initiative of the owner or his authorized body for reasons of reaching retirement age (Art. 11 of the Law of Ukraine "On basic principles social protection labor veterans and other elderly citizens in Ukraine "),since Art. 23 of the Law of Ukraine "On Civil Service" established the maximum age of stay in the civil service - 60 years for men and 55 for women. That is, we are talking not only about "positive" differentiation (establishment of benefits, benefits, additional guarantees, etc.), but also about "negative" (establishment of some restrictions, exemptions from the current labor legislation in relation to certain categories of workers).
Differentiation is manifested in the establishment of the specifics of hiring and firing certain categories of workers; regulation of working hours and rest time; benefits and advantages in wages; additional grounds for termination employment contract; strengthening disciplinary and material responsibility and a number of other features.
An important issue is the differentiation criteria. Differentiation is the path either to benefits or to restrictions, therefore it is very important to define its objective criteria. So, V.I. Prokopenko names the following criteria: the employee's attitude to the property of an enterprise, institution, organization; nationality of the means of production (property of the enterprise); affiliation of the enterprise to state form property; social significance of the labor function performed by the employee; special natural, geographical and geological conditions; conditions of increased health risk; the duration of the employment contract (temporary and seasonal work); the possibility of concluding a contract when provided by law; socio-demographic criteria (see Prokopenko V.1. Labor Law of Ukraine: Pidruchnik. - X .: Company "Consum", 1998.- P. 84).
Professor O.V. Smirnov identifies three areas of differentiation of working conditions in the norms of Russian labor law:
The nature and characteristics of production (industry differentiation);
Age and sex, qualification and other characteristics of workers (subject differentiation);
Location of organizations where joint labor is used (territorial differentiation) (cm. Labor law: Tutorial. - M .: "Status LTD +", 1996.- FROM. 29).
In the labor law of some foreign countries such a criterion is used to differentiate the legal regulation of labor as the size of the enterprise, that is, the number of employees in the enterprise. It seems appropriate to discuss the possibility of establishing such a criterion in the legislation of Ukraine. According to paragraph 1 of Article 2 of the Law of Ukraine "On Enterprises in Ukraine" (as amended by the Law of Ukraine dated February 4, 1998), enterprises of the following types can operate in Ukraine:
Private enterprise based on the property of an individual;
Collective enterprise based on the property of the enterprise labor collective;
Economical society;
An enterprise based on the property of a citizen association;
Public utility company based on the property of the respective territorial community;
A state-owned enterprise based on state ownership, including a state-owned enterprise.
After all, there is a significant difference in the real mode of work in a small enterprise, which employs 3-5 people, and an individual may have one employee. Does it really require the conclusion of a collective agreement, etc.?
In foreign labor law, there is a general trend towards a decrease in differentiation, leveling of its standards. This applies, for example, to the unification of norms governing hired labor in industry and agriculture, employees of private and state (nationalized) enterprises. On the contrary, there is a process of convergence, unification legal status workers depending on the industry, type of property, between workers and employees. Simultaneously with the tendency to leveling the legal status of various categories of employees in foreign labor law, there have been, especially recently, tendencies towards an increase in some types of differentiation. We are talking, for example, about the special regulation of typical employment contracts for temporary workers, part-time workers, homeworkers, etc.
At the same time, the work of such subjects as civil servants requires some more special regulation. After all, this is a rather specific area, the increased level of social responsibility of such workers should be reflected in the legislation. Maybe it makes sense for this category to introduce a mandatory contract? At the same time, it is probably advisable to streamline the list of positions that relate to civil servants, recently it has been unreasonably expanding.
According to prof. R.Z. Livshits, the peculiarities of labor regulation of some categories of workers are determined by both objective factors (working conditions) and subjective (employee personality). Objective factors - form of ownership, conditions and nature of labor, natural and climatic conditions; subjective factors - gender, age, health status of the employee, his profession (see Labor Law of Russia: Textbook for Universities. Edited by Prof. RZ Livshits and Prof. YL. Orlovsky. - M .: Publishing group INFRA-M - NORMA, 1998.- FROM. 30). The author believes that the differentiation lies in the different level of labor rights, and such a difference can only consist in increasing general level, but not in its decline. Deviation from the general level is allowed only upward. In his opinion, in russian legislation on labor, "negative differentiation" is not allowed.
However, one can hardly agree with this opinion. There are some rules related, for example, to the ability to hold the office of a civil servant, the office of a judge (for example, according to Article 126 of the Constitution of Ukraine, a judge is dismissed from office by the body that elected or appointed him, if the judge reaches sixty-five years), with the establishment of additional the basis for the termination of an employment contract for certain categories of employees under certain conditions (Art. 7,37,41 of the Labor Code, clause 8 of the Regulation on the conditions of part-time work of employees of state enterprises, institutions and organizations, approved by order of the Ministry of Labor of Ukraine, the Ministry of Justice of Ukraine, the Ministry of Finance of Ukraine dated June 28, 1993 No. 43, p. 6 of the Decree of the Presidium of the Supreme Soviet of the USSR of September 24, 1974 "On the working conditions of temporary workers and employees", etc.), special disciplinary liability of certain categories of workers (for example, employees who bear disciplinary responsibility under the charters, regulations and other acts of labor legislation ), the conclusion of a fixed-term employment contract in cases stipulated by law, etc.
Differentiation of legal regulation of labor should be clearly distinguished from discrimination against workers. The current Labor Code of Ukraine does not indicate the prohibition of discrimination, that is, the term itself is not used. However, in part 2 of Art. 22 of the Labor Code contains a very important norm that, in accordance with the Constitution of Ukraine, any direct or indirect restriction of rights or the establishment of direct or indirect advantages when concluding, changing or terminating an employment contract depending on origin, social and property status, racial and national affiliation, gender, language, political views, religious beliefs, membership in a trade union or other association of citizens, type and nature of occupation, place of residence are not allowed. At the same time, Part 2 of Art. 16 Labor Code Russian Federation explicitly states what is meant by discrimination and prohibits it.
However, according to Part 3 of Art. 22 of the Labor Code of Ukraine, requirements regarding the age, level of education, health status of an employee may be established by the legislation of Ukraine. So, for example, the provisions of Articles 174, 190 of the Labor Code of Ukraine on the prohibition of the use of women's labor in hard work and in work with harmful and hazardous working conditions, as well as in underground work, except for some underground work (non-physical work or work on sanitary and household services) , on the prohibition of bringing persons under eighteen years of age to heavy work and work with harmful or hazardous working conditions, as well as to underground work do not contradict Part 3 of Art. 22, but are due to the special care of the state about these categories of workers.
These and other requirements established by law are additional when hiring certain categories of workers and do not constitute discrimination or restriction of labor legal personality. According to Part 3 of Art. 16 of the Labor Code of the Russian Federation does not constitute discrimination; distinctions, exclusions, advantages and limitations, which are determined by the requirements inherent in this type of work and are due to the special care of the state for persons requiring increased social and legal protection.
According to Art. 1 of the ILO Convention on Discrimination in Employment and Occupation, the term "discrimination" includes:
1) any distinction, exclusion or preference based on race, color, sex, religion, political opinion, national origin or social affiliation, leading to the destruction or violation of equality of opportunity or treatment in the field of work and occupation;
2) any other distinction, exclusion or preference leading to the destruction or violation of equality of opportunity or treatment in the field of work and occupation, determined by the Member concerned, in consultation with the representative organizations of employers and workers, where such exist, and with other relevant bodies.
Any distinction, exclusion or preference in a particular job based on specific requirements is not considered discrimination. (see International human rights instruments: Collection of documents.- Moscow: Ed. group NORMA - INFRA-M, 1998. - P. 155).
The unity and differentiation of the legal regulation of labor determine the division of labor legislation into general and special. The general legislation includes norms that apply to all employees; to the special - the norms that apply to certain categories of workers (women; persons under 18 years of age; persons employed in work with harmful and dangerous working conditions, in heavy work; temporary and seasonal workers, etc.).
Therefore, an additional condition for the application of norms restricting rights and freedoms in the labor sphere is the introduction of appropriate amendments to the Labor Code of the Russian Federation. Naturally, the norms that are designed to remove the general rules from the application must be developed to achieve those listed in Part 3 of Art. 55 of the RF Constitution goals. Without specifying the purpose for which the norm was developed and applied, restricting the rights and freedoms of a person and a citizen in the world of work, its implementation contradicts Part 3 of Art. 55 of the Constitution of the Russian Federation. The above classification of general norms and norms, designed to ensure differentiation in the legal regulation of labor, is manifested not only in the formal expression of the sources of labor law, but also in their materialization into specific relations, which thus turn into legal relations. The implementation of labor law norms is made dependent on the will of the employer's representatives.
3.
In turn, representatives of the employer have a direct interest in restricting labor rights and freedoms. Therefore, in practice, more often than not, norms appear and are applied that restrict the rights and freedoms provided for in the Labor Code of the Russian Federation and international legal acts on labor.
Whereas the norms establishing additional benefits for employees are applied much less frequently. It may be advantageous for employer's representatives not to comply with the norms providing for additional benefits for employees.
Attention
As a result, these norms do not go from formal to material expression. In this connection, we have to admit that the state does not comply with constitutional obligation for the protection of human and civil rights and freedoms in the labor sphere.
The textbook "Labor Law of Russia" Mironov V.
Are you really human?
Features of legal regulation of working conditions in relation to certain categories of employees may be regulated by special regulatory legal acts labor legislation, taken at various levels by bodies government controlled and power. An analysis of labor legislation gives grounds to conclude that the specific ratio of differentiation of labor law norms for certain categories of workers is reduced to the fact that special regulations establish: a) a special, in comparison with the general, procedure for hiring and firing; b) the peculiarities of regulating working hours and rest time, benefits and advantages in wages; c) stricter disciplinary and material liability of employees and some other features.
The unity and differentiation of labor law is a complex and multifaceted phenomenon.
The principle of unity and differentiation of legal regulation of labor relations
The unity of the legal regulation of labor relations means that the norms of labor law establish a high level of working conditions, they must be observed by all employers who hire employees on the basis of an employment contract. Such uniform standards apply to labor relations of employees of state enterprises, institutions, organizations, employees of private and collective enterprises, as well as those persons who work under an employment contract with individuals (employers).
Important
The unity of legal regulation is provided mainly by the norms of the centralized level. In particular, these are the norms of the Code of Labor Laws of Ukraine, which are of a general nature, as well as the norms of special laws "On wages" dated March 24, 1995 No. 108/95-VR, "On collective agreements and agreements", "On the procedure for resolving collective labor disputes (conflicts) "dated March 3, 1998 No. 137/98-VR and others.
Unity and differentiation of legal regulation of labor relations
On the basis of gender, the legislator singled out women, establishing benefits for labor protection, pregnancy and childbirth. Yu.P. Orlovsky, substantiating the objective need for the unity and differentiation of labor law, pays special attention to the fact that differentiation contributes to the unity of labor law, and unity creates conditions for the differentiation of legal regulation. Therefore, the inextricable connection between the two sides of the content of legal regulation of labor - unity and differentiation - not only presupposes the non-opposition of one to the other, but also requires ensuring unity through differentiation, and differentiation through unity. The grounds for differentiation are objective and subjective factors that require differences in the legal regulation of labor.
§ 3.unity and differentiation of legal regulation of labor relations
Info
Labor Code of Ukraine to the rule on the equality of labor rights of all citizens, regardless of origin, social and property status, race and nationality, gender, language, political views, religious beliefs, type and nature of occupation, place of residence and other circumstances. Special norms adopted to ensure a differentiated approach to the regulation of labor relations for certain categories of workers do not at all provide for the creation of any preferential working conditions for them or granting them additional privileges.
They are aimed primarily at achieving a balance of guarantees for the labor rights of certain categories of workers in accordance with their working conditions. For this, labor legislation provides for the establishment of differentiated rules for regulating labor relations at the legislative level.
So, Art.
Unity and differentiation of legal regulation of labor relations
Snigireva, who understands differentiation of labor law as differences in the content of legal regulation of labor of workers and employees of various categories according to certain stable characteristics. At the same time, the main thing remains in the essence of this type of differentiation, namely: different legal regulation of the labor of workers, depending on their subject characteristics, must be determined based on the criteria that are necessary inherent in them - gender, age, health status, the presence of children, and not from the specifics type of labor activity, mental or physical labor. Subject characteristics, taken into account by the legislator, make it possible to differentiate labor selected groups subjects.
Thus, differences in labor regulation by age are determined by three large groups: citizens aged 18 years to retirement; adolescents from 14 to 16 years old and from 16 to 18 years old; pensioners.
Unity and differentiation of legal regulation of labor relations in Ukraine
The presence of this principle is an important guarantee of the labor rights of hired workers (which is especially felt in the context of the transition to market relations) and the approval of private entrepreneurship in Ukraine, and it is not a secret that there are cases when private entrepreneurs, in order to make a profit, try not to comply with the use of hired labor. workers general requirements labor legislation, while worsening the rights of citizens. Such employment contracts must be declared invalid to the extent that they contradict the current labor legislation.
The labor legislation of Ukraine does not contain special rules according to which the conditions of labor contracts that worsen the situation of employees should be recognized as invalid. Therefore, it is often not possible to protect labor rights violated.
Unity and differentiation of legal regulation of social and labor relations
There are three types of norms designed to ensure differentiation in the legal regulation of labor. First, it is possible to single out the norms that provide additional benefits in comparison with the general labor legislation.
Such norms may appear at various levels of legal regulation of labor: federal, inter-sectoral, sectoral, regional, local, and local. The provision of additional benefits does not conflict with the higher legal force legislation, since the rights and freedoms of man and citizen are declared the highest value, which constitutes the meaning of the activities of public authorities and local government and must be ensured by justice.
Secondly, among the norms that ensure differentiation in the regulation of labor, there are norms that adapt general prescriptions to the characteristics of labor activity.
6.unity and differentiation of legal regulation of labor relations
In turn, the differentiation of labor rights and obligations implies the establishment of differences, exceptions, preferences and restrictions in the legal regulation of labor and other directly related relations of certain categories of workers. The term “differentiation” itself is not used by the legislator, but differences in the legal regulation of labor relations have always been inherent in labor law. Labor law is an independent branch russian law, which is a system of legal norms connected by internal unity that regulates labor and other relations directly related to them. The most important feature of modern labor law is its unity, which is based on a number of objective factors.
The unity and differentiation of labor legislation are reflected.
Unity of labor legislation reflected in the general norms of labor legislation and expressed:
- in the principles of legal regulation of labor, common to all industries throughout the country;
- in the same basic labor rights for all employees.
Differentiation of legal regulation of labor (i.e. the difference) is expressed in special rules applicable only to certain workers, and is carried out by the legislator, taking into account its foundations. The grounds for differentiation that create special norms (benefits, restrictions) are:
- harmfulness and severity of working conditions;
- climatic conditions of the Far North and places equated to it;
- subjective grounds: physiological characteristics of the female body (its reproductive and maternal role), as well as the social role of a lonely mother (lonely father), persons with family responsibilities, psychophysiological characteristics of an immature organism and the nature of a teenager, limited working capacity of disabled people;
- the specifics of the short-term employment relationship of temporary and seasonal workers;
- peculiarity of labor communication of members of production cooperatives, members of collegial executive body legal entity;
- peculiarities of labor in a given industry (sectoral differentiation), the combination of labor with training;
- the specifics of the content of labor and the responsible nature of the work of civil servants, judges, prosecutors, the specifics and responsibility of the labor of workers in the transport industries, the importance and role of labor in the management of production by heads of organizations.
Differentiation (difference) of labor law norms is expressed in special legislation for certain categories of workers, that is, in special labor law regulations and special norms in general acts. For example, a special act is the Law of the Russian Federation "On state guarantees and compensations for persons working and living in the Far North and equated localities ”dated February 19, 1993, and by special norms in general acts - the norms of section. XII of the Labor Code on the peculiarities of the legal regulation of labor of categories of workers (women, persons under the age of 18, seasonal workers, transport workers, etc.).
Differentiation of labor law and its result - special legislation gives all employees an equal opportunity to exercise their constitutional labor rights, ensuring their implementation by the features of legal regulation of labor (differentiation) of certain categories of workers who need additional protection from industrial hazards or taking into account the nature of their work, labor relations ...
Types of special labor law:
- norms-benefits that provide additional labor rights (the majority among special norms);
- norms-adaptationsadjusting general norms to given working conditions (for example, sectoral differentiation, that is, according to the branches of the national economy, contains mainly norms of adaptation);
- exemption norms (a small number, restrict rights in comparison with the general norms for some workers - temporary, seasonal, civil servants, etc.).
One of the specific features is unity and differentiation. The problem of unity and differentiation, one way or another, is inherent in other branches of law, but for labor law it is of particular importance.
Unity is based on equal legal capacity to work (legal personality), which presupposes equality of opportunity without any discrimination, which is proclaimed in Art. 19 and part 2 of Art. 37 of the Constitution of the Russian Federation.
Consequently, all persons can enter into labor relations, regardless of gender, race, nationality, language, property and official status, etc., which is ensured by the general grounds for the emergence, change and termination of labor legal relations when discrimination in employment and remuneration is prohibited. ...
The unity of legal regulation in labor law is reflected in its general constitutional principles, in the common basic labor rights and obligations of employees (Article 2 of the Labor Code of the Russian Federation) and employers, in the general provisions of Ch. 1 of the Labor Code, in the general normative acts of labor legislation that apply to the entire territory of Russia (Labor Code, etc.) and to all employees, wherever and whoever they work.
The unity of legal regulation is expressed through general norms (i.e., norms that apply to all employees) adopted by the state in order to regulate the sphere of labor relations. The centralized regulation of labor relations establishes a certain standard of labor rights and guarantees. At the same time, it is prohibited, by contract, to worsen the position of employees in comparison with labor legislation. The employer has the right only to improve the position of the employee in the presence of economic and production opportunities.
Thus, the norms securing the unity of labor law should be considered as fundamental rules when establishing the terms of any labor or collective agreement, agreement at any level.
However, in labor law, unity in the establishment of working conditions at a certain level does not exclude, but, on the contrary, presupposes taking into account the specifics, i.e. differentiation of legal regulation. It is impossible to apply uniform norms regardless of the physiological characteristics of the human body (minors, women), the nature of work, its various conditions (harmful, dangerous conditions) and other specifics of work. Differentiation of legal regulation is expressed through the establishment of special rules that take into account this specificity. Thus, the term "special norm" reflects differentiation (ie, difference) in the legal regulation of the labor of certain categories of workers.
In a broad sense, differentiation can be understood as all sorts of differences in norms, depending on certain conditions. However, considering the differences in connection with the system of the branch of labor law, one should bear in mind not these phenomena, but the norms for different categories of workers, which arise from the nature and content of labor relations. With the help of their regulation, a specific application of legal norms is ensured, taking into account both objective factors characterizing the place and conditions of a citizen's work, and the properties of a personal order related to the employee himself. The task that, according to S. Filchikova, differentiation is designed to solve, is to individualize the general legal norm in relation to certain categories of workers with different abilities or working in different conditions See Filchakova. C. Differentiation or Discrimination? // Justice in Eastern Siberia. - 2004. - No. 1 (13) ..
Differentiation is expressed through special norms and allows different categories of workers to exercise their labor rights and obligations on an equal basis with all others, i.e. contribute to the improvement of the labor process, and increases the efficiency of legal regulation of labor relations.
Special norms of labor law can be of three types: 1) norms-benefits that provide employees additional guarantees their rights to work on labor protection, working hours, vacations. Such norms-benefits are established for women, minor workers, workers combining work with training, etc .; 2) rules-exemptions, somehow limiting general rights (for example, a federal civil servant can only be a citizen of the Russian Federation Art.13 of the Federal Law of the Russian Federation of July 27, 2004 No. 79-FZ On State civil service Russian Federation.); 3) norms-adaptations, which adapt general norms to the peculiarities of this type of labor (sectoral differentiation), for example, taking into account the nature and responsibility of transport workers, pedagogical workers, etc. Tolkunova V.N. Comment of Art. 251 of the Labor Code of the Russian Federation / Commentary to Labor Code Of the Russian Federation (under the editorship of K.N. Gusov) - M .: LLC "TK Welby", LLC "Prospect Publishing House", 2003 ..
In the science of labor law, the norms of differentiation differ depending on: 1) the subject of labor (women, disabled people, minors); 2) spheres and types of work (civil servants, university teachers, doctors, television workers, etc.); 3) the severity or harmful working conditions (reduced working hours, additional holidays); 4) natural features of the area (areas of the Far North and terrain, equated to them, high-mountain areas); 5) the specifics of labor relations (seasonal work, temporary or home workers, etc.). These grounds of differentiation are generally accepted in the legal literature and are highlighted by the majority of representatives of the science of labor law See, for example. Baru M.I. Unification and differentiation of labor law norms // Soviet state and law. - 1971. - No. 10. - P. 51 ..
At the same time, all the grounds that determine the differentiation of labor law are usually divided into two groups. The first includes the grounds due to objective factors characterizing the place and conditions of work (harmfulness and severity of production, special temperature conditions and increased labor intensity, requiring greater physical or nervous stress of the employee, unfavorable climatic conditions, remoteness of the location of the enterprise, traveling nature of work, etc. .). These features are reflected in the regulation of working hours and rest time, labor protection and other institutions.
The second group of grounds for differentiation characterizes citizens entering into labor relations (subject differentiation), i.e. the sex and age, physiological characteristics of the employee, the state of his health, the nature of the relationship between the employee and the enterprise are taken into account. These circumstances predetermine the peculiarities in the regulation of the labor of women, adolescents, disabled people, pensioners, in other words, subject differentiation specifies the application of legal norms to various subjects not by virtue of their performance of labor duties in specific conditions, but due to the special properties that characterize them themselves.
Each of the above reasons for differentiation, one way or another, is reflected in the norms of labor legislation. Thus, hard work or harmful working conditions require the adoption of norms for the appropriate regulation of working hours and rest time, pay and labor protection. For example, the differentiation of wages depending on the intensity of labor is expressed in the establishment of higher rates for wages of equal complexity, requiring higher labor costs. This differentiation is realized through the wage system. For strenuous work, a piece-rate system is used, which provides for a higher wage rate than the rate for a time-based wage system.
The peculiarities of the nature of work, the complexity of work and the increased responsibility of some types of labor activity explain the special requirements for qualifications and other business qualities of workers, which is enshrined in special rules regarding hiring by elections, by competition, etc. and (or) dismissals (in particular , in the field of culture, education, health) In some cases, increased requirements for discipline and responsibility are stipulated, for example, among workers of aviation, railway and other types of transport.
Establishment of the features of the legal regulation of labor of certain categories of workers belongs to the federal bodies state power (Article 6 of the Labor Code).
It should be noted that the law for the first time provides a legal definition of the features of labor regulation. In accordance with Article 251 of the Labor Code of the Russian Federation, the specifics of labor regulation contain “norms that partially restrict the application of general rules on the same issues or provide for certain categories of workers additional rules". It follows from the definition that the features of labor regulation can only be established by the norms of law, therefore, they cannot be the subject of agreement between the parties and be established in an employment contract that provides, for example, employees with greater benefits than guaranteed by labor legislation. Such enforcement provisions of the employment contract will not be considered as establishing the features of labor regulation in the sense used in the Labor Code.
Section XII and the entire fourth part are devoted to the peculiarities of labor regulation of certain categories of workers in the Labor Code. Article 252 of the Labor Code of the Russian Federation directly lists the cases of establishing the specifics of labor regulation for the following categories of workers: women; persons with family responsibilities; employees under the age of eighteen; heads of organizations; persons working part-time. This list is open source. So, already in Section XII of the Labor Code of the Russian Federation, in separate chapters, in addition to those listed above, categories of workers are provided for, for whom the specifics of labor regulation are also established. These are employees who have entered into an employment contract for up to two months; employed in seasonal work; persons working on a rotational basis; employed by employers - individuals; homeworkers; persons working in the regions of the Far North; transport workers; teaching staff; employees of representative offices abroad; medical workers; persons working in organizations where military or alternative service is provided; creative workers.
Article 252 of the Labor Code of the Russian Federation allows the establishment of features of labor regulation in other cases provided for by the Labor Code and other federal laws. It should be noted that the establishment of the specifics of the regulation of labor relations is allowed only by the Labor Code itself and federal laws, which creates the basis for the unity of labor law as a branch of law and lays down general methodological principles for the differentiation of legal regulation of labor of certain categories of workers. Only in a codified act and law of the federal level can the specifics of the legal regulation of labor of certain categories of workers be provided.
The structure proposed by the legislator for securing the cases of establishing the specifics of labor regulation presupposes the presence of special norms not only in Section XII of the Labor Code, but also in its other sections, in other federal laws. Features of labor regulation are also contained in part one of the Labor Code of the Russian Federation. So, Art. 4 “Prohibition of Forced Labor” does not include work that is subject to legislation on conscription and military service or alternative civilian service replacing it; work performed in an emergency, that is, in cases of declaration of a state of emergency or martial law, disaster or threat of disaster (fires, floods, hunger, earthquakes, severe epidemics or epizootics), as well as in other cases that endanger life or normal life the conditions of the entire population or part of it, and the work performed as a result of a final judgment of a court under supervision government agenciesresponsible for compliance with the law in the execution of court sentences as forms of forced labor. Thus, an exception is made for them, consisting in the possibility of performing work under the threat of any punishment. The example of this rule illustrates the possibility of establishing special rules even in relation to such general provisions, which represent or disclose the content of the principles of legal regulation of labor relations and other relations directly related to them (in this case, the principle of the prohibition of forced labor).
General principles of differentiation in labor law are contained in Art. 11 of the Labor Code "Effect of laws and other normative legal acts containing labor law", which provides that the peculiarities of the legal regulation of labor of certain categories of workers (heads of organizations, persons working part-time, women, persons with family responsibilities, youth, civil servants and others) are established by the Labor Code and other federal laws. At the same time, several categories of subjects were excluded from the scope of labor legislation and other legal acts containing labor law norms. These are military personnel on duty military service; members of the Boards of Directors (Supervisory Boards) of organizations (except for persons who have entered into an employment contract with this organization); persons working under civil contracts.
The above exception is not even an example of differentiation in labor law itself, but of intersectoral differentiation expressed in the norms enshrined in a special codified act and aimed at resolving possible conflicts between various branches of law. This list of differentiating circumstances is provided open. In accordance with Art. 11 of the Labor Code of the Russian Federation, other federal laws, including those not directly related to labor legislation, may provide for other categories of persons excluded from the scope of labor legislation and other legal acts containing labor law norms.
Undoubtedly, an important innovation of the Labor Code is the expansion of the list of grounds on which it is impossible to establish special norms. Such grounds are listed in article 3 of the Labor Code of the Russian Federation - “Prohibition of discrimination in the sphere of labor”.
The prohibition of discrimination in the field of labor and forced labor, as well as equality of rights and opportunities for workers are among the basic principles of labor law (Art. 2 of the Labor Code).
The provisions of Art. 3 of the Code fully comply with the ILO Convention (1958) No. 111 "On Discrimination in Labor and Employment" International Labor Organization Convention No. 111 on Discrimination in Labor and Occupation (Geneva, June 4, 1958) // "Library Russian newspaper”, Issue N 22-23, 1999. This Convention has been ratified by our country, it gives the concept of discrimination. Discrimination includes:
- a) any distinction, exclusion or preference based on race, color, sex, religion, political opinion, foreign or social origin, leading to the destruction or violation of equality of opportunity or treatment in the field of work and occupation;
- b) any other distinction, exclusion or preference leading to the destruction or violation of equality of opportunity or treatment in the field of work and occupation, determined by the member concerned, in consultation with the representative organizations of employers and workers, where such exist, and with other relevant bodies.
Thus, all important provisions of this Convention are reflected in Russian national legislation.
The legal prohibition of discrimination in the world of work is to ensure that all citizens have equal opportunities in the exercise of their abilities to work. The only possible restriction in labor rights and freedoms are the circumstances associated with the business qualities of the employee. Exclusively depending on their level, citizens have the right to receive any advantages in this area, and this cannot be considered by anyone as discrimination.
The Labor Code of the Russian Federation does not provide the concept of business qualities. These should include such qualities as: creative and rational potential when performing tasks, activity, initiative, enterprise, the ability to perceive and introduce new things, ingenuity, perseverance and efficiency in achieving goals, a developed sense of duty and responsibility, etc. It seems reasonable to assert that the business qualities of a citizen cannot give a comprehensive idea of \u200b\u200bits compliance, for example, with the assigned work when employed in a particular organization, when promoting to a higher position and solving other personnel issues. In these cases crucial acquire the professional and personal qualities of the applicant. In particular, the competitive selection of federal civil servants, including from among the civilian personnel of the Armed Forces of the Russian Federation, is carried out as a result of assessing precisely these qualities of candidates - professional and personal qualities. When assessing the specified qualities of a candidate, the competition commission proceeds from the relevant qualification requirements for a public position and the requirements of the job description.
In Art. 3 TC indicates an approximate list of circumstances, depending on which a person cannot be denied employment. Citizens of the Russian Federation are equal before the law regardless of gender, race, national origin, or language. However, it should be noted that in some cases knowledge of the language (for example, Russian, English, German, Tatar, Bashkir, any other) is just a prerequisite for hiring (for example, a translator from Russian into Tatar and vice versa). In these cases, there is no need to talk about language discrimination, since the requirement for language proficiency is a requirement for the qualifications of the accepted person, for his “business qualities”.
When applying for a job, the financial status of a person does not matter at all. It is quite possible that the previously generally homogeneous property status of our fellow citizens will differ more and more. However, from the point of view of the right to get a job, both a millionaire and a person with limited means have the same rights.
It is of great importance that, within the meaning of this article, employment does not depend on the citizen's place of residence. Previously, in practice, it all boiled down to whether a citizen was registered in a given locality (area) or not. The lack of a residence permit did not make it possible to take a job (to get a job, Article 181 of the Administrative Offenses Code of the RSFSR), and the lack of work did not make it possible to register and until recently could entail criminal liability (Articles 198, 209 of the Criminal Code of the RSFSR - now canceled). At present, registration or lack thereof cannot serve as a basis or condition for the exercise of the right to work. Refusal to hire due to lack of residence or registration contradicts Article 3 of the Labor Code of the Russian Federation, and the perpetrators can be prosecuted, up to criminal (Article 136 of the Criminal Code).
As a guarantee of employment, the ban on hindering the employment of a citizen, depending on his attitude to religion, beliefs, membership of public organizations, is also indicated. Of course, in Russia, a country where there are many religions and religious confessions, the establishment of any restrictions or advantages based on attitudes towards religion would lead to significant violations natural law any person - the right to work. Therefore, neither belonging to a particular religion, nor belonging to atheists, nor other circumstances of a religious nature should be taken into account by employers when hiring. This applies equally to the convictions of the citizen. It is not beliefs that matter, but only professional qualities.
It is also impossible to impose a condition on a person being recruited about the obligatory entry into a trade union operating at the enterprise, into another public association. The practice of individual entrepreneurs, imposing the condition of non-joining a trade union on those who are hired, is a gross violation of the current legislation (Articles 2, 30 of the Law on Trade Unions).
The "other circumstances" mentioned in Article 3 of the Labor Code include any other (not related to the business qualities of the person employed) facts, information, life situations, etc. In particular, personality traits, its characteristic features do not matter (for example, he likes to argue, knows how to defend his point of view, etc.). You cannot be guided by the prevailing "public opinion" about a given person (that he is a "squabbler", "a lover of criticism", etc.). You cannot refuse to hire if the employee refuses to submit documents not established by law, because the employee has not yet served in the army, because the employee asks to establish part-time working hours, etc. It is forbidden to refuse to hire women and reduce them wages for reasons related to pregnancy or the presence of young children. Criminal legislation qualifies such a refusal as a crime (Article 145 of the Criminal Code of the Russian Federation). In a word, any factual circumstances not directly related to the business qualities of a person should not be taken into account.
The forms of "restriction" of labor rights (mentioned in Article 3 of the Labor Code) can be varied. “Restrictions” are evident, in particular, in the case when a person is denied employment, improvement of working conditions, promotion, etc .:
- a) due to past behavior (for example, if a person was convicted of hooliganism, negligence, etc.), even if the conviction has not yet been removed and canceled, but the conviction is not related to the nature of the work performed (for example, the person works machine operator, painter, etc.);
- b) for reasons that the employee insists on the written form of the employment contract;
- c) due to the lack of special education (if this is not a necessary condition for the performance of this work);
- d) due to the fact that the person being accepted is not a citizen of the Russian Federation, although the nature of the work allows hiring foreigners;
- e) due to the fact that the employee was fired from his previous job for violations of labor discipline, absenteeism, etc. reasons that unfavorably characterize his attitude to past work;
- f) due to the fact that he has work book there is a record that he previously failed to pass the probation period for other employers, was fired due to illness, redundancy, etc. See Guev A.N. Article-by-article commentary to the Labor Code of the Russian Federation. - M .: Delo, 2003.
In any case, in case of refusal to hire a citizen, the reasons for refusal must be clearly explained, and at his request, the reason for refusal must be stated in writing.
Article 3 of the Labor Code directly establishes what cannot be considered discrimination in hiring. In cases stipulated by law, the employer is obliged to refuse to conclude an employment contract with persons under a certain age. So, in accordance with Art. 263 of the Labor Code, citizens under the age of eighteen cannot be employed in work with harmful and (or) hazardous working conditions, as well as in underground work and work, the performance of which may harm their health and moral development (gambling business, work in night cabarets and clubs and etc.). According to Art. 244 of the Labor Code of the Russian Federation, minors cannot be entrusted with work that requires the conclusion of contracts with them on full material responsibility. In addition, all persons under the age of eighteen are recruited only after a preliminary compulsory medical examination, and in the future, until reaching the age of eighteen, are annually subject to a compulsory medical examination. It is also prohibited to employ women in jobs with harmful and (or) hazardous working conditions.
Refusal to hire persons of the listed categories pursues the goal of the legislator - to provide health and labor protection to persons in need of increased social and legal protection.
A citizen's right to conclude an employment contract may be limited in accordance with a court verdict that has entered into legal force, establishing as a punishment the deprivation of the right to hold certain positions or engage in certain activities (Article 47 of the Criminal Code of the Russian Federation). In some cases, it is not allowed to hire persons who are medical indications such work is prohibited (for example, teaching).
It would be legitimate for the employer to refuse to hire a disabled person due to the fact that the number of disabled people in this organization exceeds the established quota - from 2 to 4% of the average number of employees. Exceptions related to the specifics of professional service activities are specially defined by the Federal Law of the Russian Federation of July 27, 2004 No. 79-FZ. Thus, a citizen cannot be accepted into the civil service in the following cases: refusal to go through the procedure for obtaining admission to information constituting a state or other secret protected by law; close relationship or property with a civil servant, if the civil service of one of them is directly subordinate or controlled by the other and in other cases. In accordance with Art. 15 of the Federal Law "On the Legal Status of Foreign Citizens in the Russian Federation" of July 25, 2002 N 115-FZ Collected Legislation of the Russian Federation of July 29, 2002 N 30 Art. 3032. foreign citizens has the right to be recruited as civilian personnel of the Armed Forces of the Russian Federation on the basis of the current legislation. However, according to the Federal Law of the Russian Federation of July 27, 2004, No. 79-FZ, this provision does not apply to their replacement of positions of federal civil servants from among these personnel.
The current legislation provides for other differences, exclusions, preferences and restrictions that are not discrimination. These features of legal regulation in the field of labor of certain categories of workers are reflected in various special labor standards or special regulatory legal acts containing such norms.
Rules of Art. 3 of the Labor Code of the Russian Federation prohibiting discrimination in the world of work are imperative and binding on all employers (i.e., organizations, government agencies, and local governments, and individual entrepreneurs, and other individuals).
Discrimination in the world of work in accordance with Part 4 of Article 3 can be appealed to the federal labor inspectorate (Article 356 of the Labor Code) and (or) to the court (see Article 391 of the Labor Code). Consequently, persons who believe that they have been discriminated against have the right to apply to the above-mentioned bodies with an application for the restoration of violated rights.
Thus, differentiation is a method of legal regulation of labor relations, which, through special norms, allows certain categories of workers with different, different abilities or working in different conditions, on an equal basis with everyone else, to exercise their labor rights and obligations. All these differences must be taken into account in the legal regulation of labor, which is achieved through differentiation, that is, by establishing the features of labor regulation of certain categories of workers.
With the help of special regulation norms, the specific application of general legal norms is provided, taking into account both objective factors characterizing the place and conditions of a citizen's work, and the properties of a personal order related to the employee himself.
Unlike differentiation, discrimination is a legally prohibited negative legal phenomenonwhich includes any distinction, exclusion or preference based on race, color, sex, religion, political opinion, foreign or social origin, leading to the destruction or violation of equality of opportunity or treatment in the field of work and occupation.
Thus, discrimination can be understood as a direct or indirect restriction of labor rights, on grounds prohibited by labor legislation.
The unity of the legal regulation of labor is manifested in the fact that the content of labor legislation contains general norms that enshrine the general principles of legal regulation of labor of all employees and employers without exception. Among the above are, first of all, the norms-principles arising from the content of Art. 2 of the Labor Code of the Russian Federation. The basic rights and obligations of employees and employers are defined in Art. Art. 21, 22 of the Labor Code of the Russian Federation. These norms are general in nature, applicable in all situations related to the implementation of sources of labor law. By virtue of which they ensure unity in the regulation of relations that constitute the subject of labor law. On the other hand, there are special norms that are designed to reflect the specifics of the work of individual workers or occurring in special conditions. Such norms provide differentiation in the regulation of relations included in the subject of labor law.
3.unity and differentiation of legal regulation of labor relations
One of the specific features of the legal regulation of labor relations is taking into account the existence of unity and differentiation of legal regulation of labor and relations directly related to them. The unity of legal regulation of labor relations testifies to the internal inextricable connection of the entire set of norms regulating social relations that are the subject of labor law, and differentiation is manifested in the presence of special norms that apply to certain categories of workers (women, adolescents, disabled people, persons working in special climatic conditions employed in heavy work, work with harmful, dangerous or other special working conditions, as well as in certain sectors of the economy) .1 The unity of legal regulation of labor is manifested in the presence of general norms that enshrine the general principles of legal regulation of labor.
Are you really human?
Secondly, among the norms that ensure differentiation in the regulation of labor, there are norms that adapt general prescriptions to the peculiarities of labor activity. This type of norms is intended to ensure the adaptation of general norms to the specifics of labor activity.
Attention
These norms should include the prescriptions for the establishment of the summarized recording of working hours, which are designed to ensure compliance with the total duration of working hours for the accounting period, that is, to adapt the general rate to the specifics of labor activity. Such norms do not contain restrictions on the rights and freedoms of man and citizen in the labor sphere.
Therefore, they can also be created at various levels of legal regulation of labor. Thirdly, among the norms that ensure differentiated labor regulation, it is necessary to include norms establishing exceptions from general rules.
Increasing uniqueness
The establishment of such exemptions is associated with the restriction of human and civil rights and freedoms. In accordance with Part 3 of Art. 55 of the Constitution of the Russian Federation, the rights and freedoms of man and citizen, including in the sphere of labor, can be limited only by federal law and only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others , ensuring the country's defense and state security.
Consequently, the norms providing for exceptions from the general rules can be included exclusively in the content of the federal law. However, for the application of these norms in the regulation of labor relations, it is not enough to include these norms in the content of the federal law without amending the Labor Code of the Russian Federation.
As follows from Part 8 and Part 9 of Art.
Unity and differentiation of legal regulation of labor relations
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The unity and differentiation of legal regulation of labor relations are interrelated categories, they are revealed in the science of labor law without opposing them to each other, and are reflected in many institutions of labor law. The scientific literature emphasizes that “differentiation contributes to the unity of labor law, and unity creates conditions for the differentiation of legal regulation of labor” 5, and, as noted by S.L.
Rabinovich - Zakharin, - “the main factors of unity and differentiation of legal regulation of labor did not remain unchanged, 6 that is, over time (with a change in relations in the world of work, with the development of legislation), their ratio changes.7 Factors of differentiation. Differentiation in the legal regulation of labor occurs in certain directions, factors. Factors of differentiation can be divided into two groups: objective and subjective.
Unity and differentiation of legal regulation of labor
Such norms provide differentiation in the regulation of relations included in the subject of labor law. There are three types of norms designed to ensure differentiation in the legal regulation of labor.
First, it is possible to single out the norms that provide additional benefits in comparison with general labor legislation. Such norms may appear at various levels of legal regulation of labor: federal, inter-sectoral, sectoral, regional, local, and local.
The provision of additional benefits does not contradict the legislation of higher legal force, since the rights and freedoms of man and citizen are declared the highest value, which is the essence of the activities of state authorities and local self-government and must be ensured by justice.
Of the Constitution of the Russian Federation.2All special norms of differentiation may be contained in general acts (for example, Section XII "Features of the regulation of labor of certain categories of workers" of the Labor Code of the Russian Federation -Art.
251-351, i.e. one hundred articles or almost a fourth of the entire Code is devoted to them). Special norms may constitute a separate special act (for example, the Law of the Russian Federation "On the Status of Judges in the Russian Federation" dated June 26, 1992 as amended by the Federal Law dated June 21, 1995, the federal law "On the fundamentals of public service in the Russian Federation" dated July 31, 1995) .3 In the science of labor law, the basic conceptual provisions on the unity and differentiation of legal regulation of labor relations were developed by S.L. Rabinovich - Zakharin, whose ideas were further developed in the works of many outstanding scientists.
It is impossible to apply uniform norms regardless of the physiological characteristics of the human body (minors, women), the nature of work, its various conditions (harmful, dangerous conditions) and other specifics of work. Differentiation of legal regulation is expressed through the establishment of special rules that take into account this specificity. The phenomena of differentiation in labor law are numerous and varied. Differentiation in a broad sense is commonly understood as any difference in norms that depends on certain conditions. The task of differentiation includes the individualization of the general legal norm in relation to certain categories of workers with different physiological characteristics or working in different conditions and even regions, etc.
Therefore, for many sectors of the national economy, it is necessary to take into account the specifics of labor activity. Differentiation based on taking into account the sectoral characteristics of labor is carried out using special norms adopted in a centralized manner, at the level of industries and at the local level.
Differentiation is expressed through special norms and allows, from our point of view, different categories of workers on an equal basis with all others to exercise their labor rights and obligations, i.e. contribute to the improvement of the labor process and increase the efficiency of legal regulation of labor relations. Since the differentiation of legal regulation is manifested most strongly in the creation of special norms, the issues of their classification acquire special relevance.
Reflecting the level of social development, the type of democracy, achievements of legal science and practice, the trends show the directions of changes in labor legislation, which makes it possible to improve it and the practice of applying labor law norms. 11 Analysis of the system of Russian labor legislation allows us to highlight the following trends in the development of labor law in the Russian Federation. public policy in the field of employment. This tendency finds expression in the fact that with the transition to market relations such a social phenomenon as unemployment has appeared in the country, and its growth has caused the adoption of measures to ensure employment. This was enshrined in the Law of the Russian Federation "On Employment of the Population in the Russian Federation". Democratization of labor legislation.