Labor relations and employment contract. Occupational Safety and Health

OCCUPATIONAL SAFETY AND HEALTH
Free library / Occupational Safety and Health

Labor relations and employment contract. Occupational Safety and Health

Occupational Safety and Health

Occupational Safety and Health / Legislative basis for labor protection

Labor Relations - relations based on an agreement between the employee and the employer on the personal performance by the employee of a labor function (work in a certain specialty, qualification or position) for a fee, the employee's subordination to the internal labor regulations while the employer ensures the working conditions provided for by labor legislation, collective agreement, agreements, labor contract.

Labor relations arise between the employee and the employer on the basis of an employment contract, voluntarily concluded by them in accordance with the Labor Code.

The parties to labor relations and the employment contract inextricably linked with them are the employee and the employer.

Employee - an individual who has entered into an employment relationship with an employer, i.e. concluded an employment contract with the employer.

Employer - an individual or a legal entity (organization) or another subject of law established by federal laws that has concluded an employment contract with an employee and thereby entered into labor relations with him.

Thus, the law links the concepts of "labor relations", "labor contract", "employee" and "employer" into a single highly interconnected system.

Employment contract - an agreement between the employer and the employee, according to which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and data by agreement, timely and in full to pay the employee wages, and the employee undertakes to personally perform the labor function defined by this agreement, to comply with the employer’s internal labor regulations (Article 56 of the Labor Code of the Russian Federation)

The parties to an employment contract are the employer and the employee.

The employment contract shall specify:

1) last name, first name, patronymic of the employee and the name of the employer (last name, first name, patronymic of the employer - an individual) who have entered into an employment contract;

2) information about the documents proving the identity of the employee and the employer - an individual;

3) taxpayer identification number (for employers, with the exception of employers - individuals who are not individual entrepreneurs);

4) information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is endowed with the relevant powers;

5) the place and date of conclusion of the employment contract.

The following conditions are mandatory for inclusion in the employment contract:

place of work,
labor function (work according to the position in accordance with the staff list, profession, specialty, indicating qualifications; specific type of work assigned to the employee);
date of commencement of work;
terms of remuneration (including the size of the wage rate or salary (official salary) of the employee, additional payments, allowances and incentive payments);
working hours and rest hours (if for this employee it differs from the general rules in force for this employer);
compensation for hard work and work with harmful and (or) dangerous working conditions, if the employee is employed in the appropriate conditions, indicating the characteristics of working conditions in the workplace;
conditions that determine, if necessary, the nature of work (mobile, traveling, on the road, other nature of work);
a condition on compulsory social insurance of an employee in accordance with the Labor Code and other federal laws;
other conditions in cases stipulated by the labor legislation and other normative legal acts containing the norms of the labor law.

By agreement of the parties, the employment contract may also include the rights and obligations of the employee and the employer.

Already from this list follows the exceptional importance correctness and completeness of the employment contract.

If, in accordance with federal laws, the provision of benefits or restrictions is associated with the performance of work in certain positions, specialties or professions, then the names of these positions, specialties or professions and the qualification requirements for them must correspond to the names and requirements specified in the qualification reference books approved in accordance with the procedure established by the Government of the Russian Federation.

The employment contract may provide for conditions on probation, on non-disclosure of legally protected secrets (state, official, commercial and other), on the obligation of the employee to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer, as well as other conditions not worsening the position of an employee in comparison with the Labor Code, laws and other regulatory legal acts, a collective agreement, agreements.

Terms of the employment contract can be changed only by agreement of the parties and in writing.

If a fixed-term employment contract is concluded, it shall indicate the period of its validity and the circumstance (reason) that served as the basis for concluding a fixed-term employment contract (but only in accordance with the Labor Code of the Russian Federation and other federal laws).

Labor contracts can be concluded:

1) for an indefinite period;
2) for a fixed period of not more than five years (fixed-term employment contract), unless a different period is established by the Labor Code of the Russian Federation and other federal laws.

A fixed-term employment contract is concluded in cases where labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its performance, unless otherwise provided by the Labor Code of the Russian Federation and other federal laws.

If the employment contract does not specify the term of its validity, then the contract is considered concluded for an indefinite period. If none of the parties demanded the termination of a fixed-term employment contract due to the expiration of its term, and the employee continues to work after the expiration of the employment contract, the employment contract is considered concluded for an indefinite period.

An employment contract concluded for a fixed period in the absence of sufficient grounds established by the court is considered to be concluded for an indefinite period.

The importance of an employment contract is also reinforced by the fact that it is prohibited by law to require an employee to perform work not stipulated by an employment contract, with the exception of cases provided for by law.

An employment contract enters into force from the day it is signed by the employee and the employer, unless otherwise provided by federal laws, other regulatory legal acts of the Russian Federation or the employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative.

The employee is obliged to start performing labor duties from the day specified in the employment contract. If the employment contract does not stipulate the day of commencement of work, the employee must start work on the next working day after the entry into force of the contract. If the employee does not start work within the prescribed period, the employer has the right to cancel the employment contract.

Upon a written application of the employee, the employer is obliged, no later than three working days from the date of submission of this application, to issue to the employee duly certified copies of documents related to work.

Upon termination of the employment contract, the employer is obliged to issue to the employee on the day of dismissal (the last day of work) a work book and, at the employee’s written request, duly certified copies of documents related to work.

It is important to note that in the case of "actual admission to work with the knowledge or on behalf of the employer or his representative, regardless of whether the employment contract was properly executed," labor relations also arise with all the ensuing consequences of this fact. This very important provision is designed to protect the rights of an employee who has not drawn up an employment contract in writing. However, the general requirement of the law states that these relations require the execution (conclusion) of an employment contract "backdated".

When the employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than three working days from the date the employee was actually admitted to work. Thus, the employment contract is the most important and in fact the only basis for the emergence of labor relations, and, consequently, labor protection measures.

It should be remembered that if, in accordance with federal laws, the performance of work in certain positions, specialties or professions is associated with the provision of benefits or the presence of restrictions, then the names of these positions, specialties or professions and qualification requirements for them must correspond to the names and requirements specified in the qualification reference books approved in the manner established by the Government of the Russian Federation.

Authors: Fainburg G.Z., Ovsyankin A.D., Potemkin V.I.

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