ГлавнаяКаталог работЭкономика → Labour сode and employment contract in Russia

Не забывайте помогать другим, кто возможно помог Вам! Это просто, достаточно добавить одну из своих работ на сайт!

Список категорий Поиск по работам Добавить работу
Подробности закачки

Labour сode and employment contract in Russia


The development of the Labour Code of the Russian Federation
Shortcomings of the Labour Code
The employment contract


The development of the Russian Labour legislation testifies to the perception of the progressive concepts of the social labour protection. The current period of the social development of Russia is characterized by the exacerbation of the contradictions between the interests of employers and employees.
On 1 February 2002 the Russian Federation's new Labour Code entered into force. This process began in the early 1990s with the collapse of the USSR. Though the new Labour Code reflects a radical departure from the structure and, even more so, the spirit of the KZoT, it stops short of making a clean break with the past. Indeed, numerous provisions originally enacted under the Soviet regime have found their way back into the new Code although many of them seem out of date or, at the very least, out of place in the light of the legal and economic framework established by the 1993 Constitution .
Since Russia is a so-called transition country, it makes sense that it should adopt transitional labour legislation. At any event, this outcome was no doubt based on careful consideration: in the process of drafting the new Labour Code, numerous Russian and foreign experts were consulted, many opinions were sought and given (including by the ILO), and many provisions were drafted, discussed and amended, to be maintained in some cases and rejected in others .
Employment contract, in its own turn, plays a significant role in the structure of the Labour Code. Four chapters are devoted to it, which stipulates a significant renovation of this central source of the Labour law.
The aim of the essay is to review the major provisions of the Labour Code of the Russian Federation, to estimate their effectiveness and actuality.
The development of the Labour Code of the Russian Federation
The creation of the Labour Code was a long and tortuous process, to say the least. It took over seven years, in the course of which numerous drafts and counter-drafts gave rise to intense discussion and negotiation between Russia's successive governments since 1991, on the one hand, and a variety of other parties, on the other. Among the latter were not only the major trade union organizations and the recently established Coordinating Council of Employers' Unions of Russia, but also various political groups represented at the Duma, including the former Communists who submitted counterproposals. The international financial institutions also had their say, while the ILO was called upon to provide technical advice even prior to the collapse of the USSR. Within the Government itself there were occasional clashes between the ministries of labour and finance as to the type of Labour Code that the country should adopt - the former being more closely aligned on workers' interests, while the latter was more responsive to the tenets of liberal economics .
As early as 1994, the Government had submitted to the Duma a draft based on very liberal principles, whereupon the trade unions had countered with a draft of their own. However, neither of these initiatives got beyond that stage. At least seven subsequent drafts met the same fate until, after concessions were made, a new draft was submitted by the Government in 1999 and approved on first reading on 15 July 2001. Thousands of amendments were submitted with a view to a second reading. This cleared the way for the draft's eventual approval by the Duma on 21 December 2001, and by the Council of the Federation (the upper house) on 26 December. Signed into law by the Head of State on 30 December, the Code entered into force on 1 February 2002 .
Compared with the former Soviet Code, the new Labour Code introduced a fair amount of flexibility, though its underlying logic is still firmly on the side of workers' protection. On the whole, it is unquestionably a new labour code, but one which incorporates a number of provisions derived from the KZoT. Its novelty lies first of all in its length: it has 424 articles as against its predecessor's 256. Its structure is also novel: it is organized into six parts, divided into 14 sections which are, in turn, subdivided into 62 chapters, whereas the KZoT was simply divided into 18 chapters . Innovation is, of course, also reflected in the topics the new Code takes up. In particular, it regulates collective labour disputes and strikes (Part V, Section VIII, Chapter 51), which were not addressed in the KZoT, and social partnership (Section II). On this last point, the aim of the Code is to organize relationships in various areas, namely, collective bargaining, consultation, participation in management, and participation of employers' and workers' representatives in pre-judicial dispute settlement procedures (article 27).
The very spirit of the Code is also new for it contains none of the ideological references that permeated the old Code. Its stated objective is simply to secure state protection of citizens' rights and freedoms at work by establishing favourable conditions for work and by safeguarding the rights and interests of workers and employers (article 1). The new Code also reflects efforts to accommodate the special interests of small enterprises - with the introduction of ad hoc rules on contracts of specified duration (article 59) - and those of non-corporate employers (i.e. natural persons), who are allowed to conclude contracts of employment on more flexible terms as regards modification and termination of contract (articles 306 and 307). Also worth noting is the introduction of new rules governing the protection of workers' personal data (articles 85-90) and a broader definition of prohibited grounds of discrimination (article 3). To complete this overview, mention must also be made of the prohibition of forced labour. Indeed, the Code's definition of forced labour is probably unique from the perspective of comparative law: while seeking to conform to ILO Conventions Nos. 29 and 105, it also includes non-payment or incomplete payment of wages by an employer and any request that a worker perform a job without being provided with appropriate protective equipment or a task jeopardizing her/his life or health (article 4) .
The most significant innovations, however, are those relating to the contract of employment, collective bargaining and the right to strike.
Shortcomings of the Labour Code
There is no way that seven decades of history can be wiped away with a single stroke. With the market economy still in its infancy, Russia's lawmakers deemed it wiser to adopt a Labour Code that would present a "reassuring support" to millions of workers whose cultural and psychological environment was thrown into disarray by the collapse of the Soviet system. Thus, although the Labour Code is a forward-looking instrument, it also incorporates numerous provisions reminiscent of the past, reflecting the lawmakers' endeavours to ease the transition.
A typical example of the Code's links to the past occurs in its article 28. This “lists the duties and obligations of employers in what appears to be a somewhat didactic spirit which would come across as naive in any country with a well-established market economy” . The Code also spells out some rather odd requirements pertaining to probation: an employer who decides not to keep a worker on probation is expected to give reasons for that decision (article 71), whereas the whole point of probation is precisely to waive such requirements. Elsewhere, conceptual difficulties arise as to the distinction between suspension and termination of the employment relationship (article 78). Also uncomfortable is the fact that the only remedy that the Code provides for in the event of unjustified dismissal is reinstatement which, in practice, “turns out to be the chosen remedy only in a small minority of cases - not to say an exception” . Further on, one finds extremely detailed provisions on wages (articles 183-188) which, in other circumstances, would probably have been left to collective bargaining rather than written into the law. There is also a provision aimed at encouraging workers to apply themselves conscientiously at work (article 189) in a spirit that can readily be traced back to the Stakhanovist ideal. The Code goes on to give a catalogue of disciplinary penalties (article 190) and requires the employer to take disciplinary action against an enterprise manager or deputy managers if the body representing the workers so requests (article 193). This is the sort of provision one might expect to find in civil service regulations, but not in a private law code. Lastly, mention must also be made of the survival of provisions for the protection of women (article 253) and of the employer's obligation to serve free rounds of milk to workers employed in hazardous conditions (article 222).
As regards the further shortcomings of the new Code, the first relates to its scope, which is not specified. Yet, at a time when the liberalization of the Russian economy can be expected to lead to substantial inward and outward migratory flows of expatriates and other workers employed on temporary projects in Russia or recruited there for assignment abroad, it would have been helpful to specify the law applicable to their contracts of employment. Then, while the Code reflects innovative thinking on the cutting-edge issue of protection of workers' personal data (articles 85-90), it displays no such creativity in establishing an effective mechanism for upholding the equally important principle of equal pay for work of equal value. The same goes for equality of opportunity: aside from its somewhat laconically worded article 3, the Code is short of provisions that might help to give effect to the principle of non-discrimination although the market economy is known to entertain an unfortunate tendency to discriminate against women. In this respect, the Russian Code is out of step with the legislation of the many other countries which have followed the authoritative lead of European Community law. In a more practical spirit, at a time when Russia has been (and probably still is) confronted with recurrent instances of delays in the payment of wages, Russia's lawmakers also abstained from following the example of the many European countries that have legislated means of protecting wages in the event of the employer's insolvency .
The employment contract
The Code contains no rules on job placement. Thus, anyone over the age of 16 (or 15, subject to completion of compulsory schooling) is free to apply for employment and to accept or reject an offer of employment; acceptance is to be followed up by the conclusion of a written contract of employment (article 67). A private employer who refuses to hire a worker is required to inform the unsuccessful applicant, in writing, of the grounds for that decision such that the worker may challenge it in court. Reproducing the wording of article 39 of the KZoT almost literally, article 66 of the new Code reaffirms the practice of keeping individual employment records, although this should no longer give rise to the suspicions that used to surround the "employment book" in Soviet times . Save in exceptional circumstances, probation cannot exceed three months and must be expressly agreed upon by the parties to the contract of employment (article 70).
Contracts of employment are generally deemed to have been concluded for an indefinite period. A contract may be concluded for a specified period of less than five years, but only in such cases as are specified by the law (article 59). The general rule is that the conclusion of a contract of specified duration (CSD) must be justified by some objective reason. (In particular, such a contract would be justified where the employer's need for labour is of a temporary nature.) If this requirement cannot be met, the CSD is converted into a contract of unspecified duration (article 58). The new Code allows a few exceptions, however, including for enterprises employing up to 40 workers (25 in the retail trade) and non-corporate employers, both of which are permitted to hire as many workers on CSDs as they wish without having to furnish any objective justification. The same applies where the employer is a religious institution - a special case subject to a number of ad hoc provisions (articles 342-348).
Throughout the duration of a contract of employment, reassignment to a different job within the same enterprise or to a workplace located in another region is subject to the worker's written consent. However, a worker may be assigned to a different job or to a different workplace within the same region provided that such a move does not significantly affect the terms and conditions of employment specified in the contract (article 72). This rule, of great importance for functional mobility, stands in sharp contrast to the extremely restrictive prescriptions of the old KZoT. Provision is also made for temporary and permanent reassignment for technical reasons (article 73 and 74) and for transfers of enterprise ownership, under article 75, whereby the former owner's chief executive and his/her assistants and chief accountant may be dismissed by the new owner, but not the other workers. The latter's employment may be terminated only in the event of workforce downsizing, as was already provided for in the KZoT when an enterprise, establishment or organization was transferred from the authority of one overseeing body to the authority of another (article 29 in fine).
It is also interesting to compare the new Code's disciplinary provisions (articles 191-195) with the corresponding provisions of the Soviet Code (articles 127-138). The new Code is indeed much more concise than its predecessor on this point. Under the KZoT, the employer was, if the trade union so requested, required to terminate the employment of "an executive or member of the supervisory staff or to relieve him of his post, if he has violated labour legislation, if he fails to carry out the obligations under the collective agreement or if he resorts to bureaucratic methods or abusive officialdom" (article 37). Under the new Code, by contrast, the employer is simply required to "consider" the petitions of workers' representatives and, where their allegations turn out to be true, to take disciplinary action which may include termination (article 195).
By far the most interesting development, however, is that pertaining to dismissal. Indeed, the rules on this point follow entirely different logics as between a market economy and a centrally planned economy. In the Soviet system, both employment levels and the assignment of individual workers to particular jobs were determined by the plan, whereas in a market economy it is essentially the market that creates, redesigns or destroys jobs . In other words, while the first system can guarantee the jobs will be there, the second cannot. At best, the law can be expected to protect workers against unjustified dismissal. Aligned as it was on the Soviet system, the KZoT permitted the dismissal of workers only in a very limited number of cases, and even then, subject to clearance by the local trade union committee (article 35). Dismissal was otherwise unlawful and the dismissed worker had to be reinstated (KZoT, article 213).
This highly sensitive issue presumably gave rise to intense debate and some hard bargaining during the drafting of the new Labour Code. The resulting provisions read uneasily, not least because they are scattered across four different sections of the Code. The general rules are set out in articles 81-84: the grounds for dismissal at the initiative of the employer (article 81); consultation with the trade union where dismissal is linked to workforce downsizing (article 82); (49) termination of the employment relationship for reasons beyond the parties' control (article 83); and cases where the employment relationship has to be terminated because the employee is incapacitated on medical grounds or forbidden to engage in a particular occupation (article 84). To find the next batch of provisions on dismissal, one has to jump to Chapter 27. This regulates safeguards and compensation for dismissed workers, including severance pay (article 178), the order of priority of dismissals in the event of downsizing (article 179), and prior notice of two months at least (article 180). The next jump is to Chapter 58, on consultations with the trade union in the event of the individual dismissal of one of its members, which is no longer simply prohibited as used to be the case under the old Soviet law. Then, in Chapter 60, one finds the provisions on the worker's right of appeal. This right must be exercised within three months, before the enterprise's dispute settlement commission where such a procedure is in place (article 386). If necessary, the worker can then lodge a judicial appeal within ten days of the announcement of the commission's decision (article 390). As a general rule, where the dismissal is found to have been unjustified, redress is provided in the form of reinstatement by court order (article 394) with immediate effect (article 396). It is also up to the court to rule on entitlement to back pay (in full or in part) .
The Labour Code of the Russian Federation is an extensive and complex document that regulates not only labour relations, but also other legal relationships, arising in the sphere of the employing of the waged labour, such as procedures of labour organisation and management, social partnership, liability for breakage of the employment contract parties, supervision and control of the labour legislation observation, handling labour disputes and many others. The Russian Labour Code has ensued in the result of a compromise and has therefore both positive and negative features.
The quality and usefulness of a statutory instrument can only be judged from its application over time. It may well be that the best drafted instruments come up against unforeseen difficulties when it comes to applying them or, conversely, that what appear to be clumsily drafted instruments pose no real problems when they are applied. The same goes for shortcomings in legislation. In some cases, they may need to be addressed promptly by further legislation; in others, a few wise judicial decisions or the interaction of the social partners may suffice to fill the gaps much more effectively than legislation ever could.
The Labour Code of the Russian Federation is now seven years old - time for those who have to abide by it to assess it and determine whether it still satisfies their needs and if it does not, to identify such amendments as may be necessary for the Code to provide an equitable institutional framework, and one of sufficient dependability to ensure sound labour market governance.
The Code should represent the display of the politics in the sphere of labour relations (and fortify its major aspects). But can we really suppose that this requirement is actually observed? Unfortunately, it is not. This is why, in my opinion, the further task of the Labour Code reconsideration will be its unification and adaptation to the requirements of the modern economic situation.
1. The Labour Code of the Russian Federation of the 30th of December 2001 (with amendments of the 24th, 25th of July 2002, 30th of June 2003, 27th of April, 22nd of August, 29th of December 2004, 9th of May 2005, 30th of June, 18th,30th of December 2006, 20th of April, 21st of July, 1st, 18th of October, 1st of December 2007, 28th of February 2008).
2. Трудовое право: Учеб. / Под ред. проф. О.В. Смирнова. М., 2006, Изд-во Питер, сс. 115-116.
3. http://www.ilo.org/public/english/dialogue/ifpdial/info/national/rus.htm - official site of the International Labour organisation, “National Labour Law Profile: Russian Federation”
4. “Labour Code of the Russian Federation – the Global amendments”, Zhanna Dobritskaya, http://www.ey.com/Global/Assets.nsf/Russia_E/HRnTax_Jul06/$file/HR&TA_07_06_Eng.pdf - официальный сайт Ernst&Young
5. Усов Артем. Хеллевиг Йон. Avenir Guide to Russian Labor Law and HR Administration. 2007, Helsinki – Russia Advisory Group. pp. 14-19.
6. "КОДЕКС ЗАКОНОВ О ТРУДЕ РОССИЙСКОЙ ФЕДЕРАЦИИ" (КЗоТ РФ), http://www.consultant.ru/popular/kzot/
7. www.ilo.org/dyn/natlex/docs/WEBTEXT/60535/65252/E01RUS01.htm
8. Трудовое и социальное право России / Под ред. проф. Л.Н. Анисимова. М., 2007.,АСТ, сс. 267-268.
9. Вопросы заключения и прекращения трудового договора и судебная практика. Ломакина Л.А. - М., 2007. - 189 c.
10. www.ilo.org/ilolex/english/newcountryframeE.htm
11.Жигулина С.С. К вопросу о содержательной стороне понятий «Трудовое правоотношение» и «Трудовой договор» // Профессионал. Научно-методический информационный журнал. - Алексеевка: Алексеевский филиал БелГУ, 2006, № 2. - С. 87-91.
12. Петров А.Я. Трудовой договор - институт современного российского трудового права // Трудовое право. - М.: Интел-Синтез, 2008, № 1. - С. 53-59.

Данные о файле

Размер 68.5 KB
Скачиваний 31


* Все работы проверены антивирусом и отсортированы. Если работа плохо отображается на сайте, скачивайте архив. Требуется WinZip, WinRar