Labor relations arising on the basis of an employment contract. Labor relations arising on the basis of a contract as a result of their recognition as labor relations. Basic rights and obligations of the employee and employer

Full text of Art. 16 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice on Article 16 of the Labor Code of the Russian Federation.

Labor relations arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with this Code.
In cases and in the manner established by labor legislation and other regulatory legal acts containing labor law norms, or the charter (regulations) of an organization, labor relations arise on the basis of an employment contract as a result of:
election to office;
election by competition to fill the relevant position;
appointment to a position or confirmation in a position;
assignments to work by bodies authorized in accordance with federal law against the established quota;
court decision on concluding an employment contract;
the paragraph became invalid on October 6, 2006 - Federal Law of June 30, 2006 N 90-FZ;
recognition of relations associated with the use of personal labor and arising on the basis of a civil contract as labor relations.

Labor relations between an employee and an employer also arise on the basis of the employee’s actual admission to work with the knowledge or on behalf of the employer or his authorized representative in the case where the employment contract was not properly drawn up.

The actual admission of an employee to work without the knowledge or instructions of the employer or his authorized representative is prohibited.

Commentary on Article 16 of the Labor Code of the Russian Federation

1. The commented article is devoted to the legal facts with which the Labor Code of the Russian Federation connects the emergence of labor relations.

The main and mandatory legal fact is the conclusion of an employment contract. It is the employment contract that is the form of existence of the labor legal relationship and a distinctive feature that allows one to distinguish the labor relationship from another relationship related to the personal labor of a citizen.

In accordance with this, the employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties.

The written form of the contract was not always mandatory. The Soviet Codes of 1918, 1922 and 1971 did not indicate that an employment contract should be in writing. Only in 1992 in Art. 18 of the Labor Code of 1971, amendments were made, after which the employment contract had to be drawn up in writing (Law of the Russian Federation of September 25, 1992 N 3543-1 “On Amendments and Additions to the Labor Code of the RSFSR”, currently no longer in force) .

However, both in Soviet codes and in the Labor Code of the Russian Federation of 2001, an employment contract is understood, first of all, not as a document, but as an agreement between the employee and the employer. In this regard, the achievement of an agreement between the employee and the employer, regardless of its form, is the basis for the emergence of an employment relationship.

This is confirmed by the ruling of the Moscow City Court dated July 18, 2011 in case No. 33-20167. The court noted that the written form of the employment contract in accordance with Part 1 of Art. 67 of the Labor Code of the Russian Federation is mandatory, however, the employee is not responsible for the fact that the employment contract with him was drawn up by the employer in an improper manner, and failure to include in the employment contract any of the provided rights and (or) obligations of the employee and employer cannot be considered as a refusal to implement these rights or fulfillment of these obligations.

2. Part 2 of the commented article indicates cases where an employment relationship arises on the basis of the actual composition, including an employment contract and any other legal fact specified in the article.

These grounds for the emergence of labor relations are implemented in cases and in the manner established by labor legislation and other regulatory legal acts containing labor law norms, or the charter (regulations) of the organization.

Separate articles are devoted to such grounds for the emergence of labor relations as election to a position, election through a competition to fill a corresponding position, appointment to a position or confirmation in a position, recognition of relations associated with the use of personal labor and arising on the basis of a civil law contract. Labor Code of the Russian Federation, therefore, these grounds will be discussed in more detail later (see commentary to Articles 17, 18, 19, 19.1 of the Labor Code of the Russian Federation).

Paragraph 5 of Part 2 of the commented article records as the basis for the emergence of labor relations the assignment to work by bodies authorized in accordance with federal law against the established quota.

So, in accordance with Art. 21 of the Federal Law “On Social Protection of Disabled Persons in the Russian Federation”, for organizations with more than 100 employees, the legislation of the constituent entity of the Russian Federation establishes a quota for hiring disabled people as a percentage of the average number of employees (but not less than 2 and not more than 4 percent). Also Art. 11 of the Federal Law of June 24, 1998 N 124-FZ “On the Basic Guarantees of the Rights of the Child in the Russian Federation” provides for the possibility of quotas for jobs for minors.

Moscow Law No. 90 of December 22, 2004 “On Job Quotas” can be cited as an example of the implementation of the above laws in the legislation of the constituent entities of the Russian Federation.

Labor relations can be established on the basis of a court decision to conclude an employment contract.

Paragraph 2 part 3 art. 391 of the Labor Code of the Russian Federation and the resolution of the Plenum of the Supreme Court of the Russian Federation on the application by courts of the Labor Code of the Russian Federation indicate the existence of a special category of labor disputes - refusal to hire.

Accordingly, if the court decides that the refusal to hire is unfounded, the conclusion of an employment contract is mandatory for the employer and can be enforced.

3. In the original version of Art. 16 of the Labor Code of the Russian Federation, the emergence of labor relations on the basis of the actual admission of an employee to work with the knowledge or on behalf of the employer or his representative in the case where the employment contract was not properly drawn up, was indicated in Part 2 along with other grounds additional to the employment contract.

In 2006, the actual admission to work was separated into a separate part 3.

Part 2 Art. 67 of the Labor Code of the Russian Federation draws attention to the fact that an employment contract that is not drawn up in writing is considered concluded if the employee began work with the knowledge or on behalf of the employer or his representative. When an 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 is actually admitted to work. Thus, actual admission to work is, rather, not an independent basis for the emergence of an employment relationship, but a way of concluding an employment contract that does not relieve the employer of the obligation to formalize it in writing.

As noted in paragraph 12 of the resolution of the Plenum of the Armed Forces of the Russian Federation on the application by the courts of the Labor Code of the Russian Federation, if the employment contract was not properly drawn up, but the employee began work with the knowledge or on behalf of the employer or his authorized representative, then the employment contract is considered concluded, and the employer or his authorized representative is obliged, no later than three working days from the date of actual admission to work, to draw up an employment contract in writing (Part 2 of Article 67 of the Labor Code of the Russian Federation).

The ruling of the Perm Regional Court dated May 30, 2011 in case No. 33-5191 draws attention to the fact that the representative of the employer in this case is a person who, in accordance with the law, other regulatory legal acts, constituent documents of a legal entity (organization) or local regulations or by virtue of an employment contract concluded with this person is vested with the authority to hire workers, since it is in this case that when an employee is actually allowed to work with the knowledge or on behalf of such a person, labor relations arise (Article 16 of the Labor Code of the Russian Federation), and the employer may be entrusted with the obligation to formalize the employment contract with this employee properly. Thus, the legislator provides certain conditions, the presence of which would allow us to draw a conclusion about the actually existing labor relations.

Federal Law No. 421-FZ of December 28, 2013 supplemented the commented article with Part 4, according to which the actual admission of an employee to work without the knowledge or instructions of the employer or his authorized representative is prohibited. In this regard, it should be noted that, according to Part 2 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, actual admission to work by a person not authorized to do so by the employer, in the event that the employer or his authorized representative refuses to recognize the relationship that has arisen between the person actually admitted to work and this employer as an employment relationship (does not conclude with the person actually admitted to work, employment contract), entails the imposition of an administrative fine on citizens in the amount of three thousand to five thousand rubles; for officials - from ten thousand to twenty thousand rubles.

Another comment to Art. 16 Labor Code of the Russian Federation

1. Due to the principles of freedom of labor (Part 1 of Article 37 of the Constitution of the Russian Federation) and the prohibition of forced labor (see Article 4 of the Labor Code and the commentary thereto), labor relations between an employee and an employer can arise in our country only on the basis of a voluntarily concluded labor agreement agreement with the free will of its parties. In this sense, an employment contract is a universal basis for the emergence of labor relations of any kind. In practical terms, this means that the work of each employee, applied within the framework of legal relations that have the characteristics of labor (see Article 15 of the Labor Code and the commentary thereto), not only can, but must be accompanied by the conclusion of a written employment contract (see Article 67 TK and commentary to it). The absence of such an agreement usually means a violation by the employer of the requirements of labor legislation with all the ensuing negative consequences for him (see Article 419 of the Labor Code and the commentary thereto).

2. An employment contract is a legal fact with which the law connects the emergence of labor relations filled with the rights and obligations of its parties (see Articles 21, 22 of the Labor Code and comments thereto). In this capacity, an employment contract is, as a rule, a self-sufficient basis for the emergence of various labor relations.

At the same time, a law, other normative act or charter (regulation) of an organization may complicate the employment procedure in relation to certain categories of employees and employers and establish procedures preceding or accompanying the conclusion of an employment contract that involve the performance of certain actions that have the properties of legally significant facts. They, together with the employment contract, form the so-called complex factual composition as a set of individual legal facts occurring in a certain sequence. The last in the chain of these facts is usually an employment contract, with the conclusion of which the formation of a complex factual composition is completed, giving rise to the corresponding employment relationship. The Labor Code establishes seven such complex compositions: 1) election to a position; 2) election by competition; 3) appointment or confirmation in a position; 4) assignment to work by bodies authorized by law against the established quota; 5) making a court decision on concluding an employment contract; 6) recognition of relations arising on the basis of a civil contract as labor relations; 7) actual admission of a person to work. Some of them are covered in separate articles of the Labor Code (see Articles 17 - 19.1 of the Labor Code and comments to them).

3. Part 2 of the commented article provides for the emergence of labor relations on the basis of a complex factual composition, including the act of sending to work against the established quota, and is usually used to ensure the employment of persons who have a deliberately reduced competitiveness in the labor market. This employment option to a certain extent contradicts the interests of the employer, since it limits his freedom in choosing the employee he needs. However, in this case, priority is consciously given to the interests of workers and, to a certain extent, society as a whole. The number of persons employed in this way, federal and regional legislation includes: disabled people; orphans; children left without parental care; graduates of educational organizations; citizens discharged from military service due to conscription; persons under 18 years of age and other categories of citizens who have difficulty finding work and therefore need increased social protection (see, for example, Article 21 of the Federal Law of November 24, 1995 N 181-FZ "On social protection of disabled people in the Russian Federation ").

4. Part 2 of the commented article provides for the emergence of labor relations on the basis of a complex factual composition, which includes a court decision on the conclusion of an employment contract. Such a decision is possible if the following conditions are met: a) an unreasonable refusal to hire a person (see Article 64 of the Labor Code and the commentary thereto); b) an appeal by this person against the fact of refusal to conclude an employment contract in court (see Article 391 of the Labor Code and the commentary thereto); c) the court makes a decision to force the employer to conclude an employment contract with the relevant person. After the relevant court decision is made, the employer must conclude an employment contract with the person whom he previously refused to hire.

When making this decision, the court does not determine the specific content of the relevant employment contract, therefore it can be determined differently in different cases. When an unjustified refusal to hire was accompanied by a preliminary announcement by the employer of the specific terms of the employment contract, it is these conditions that should constitute the content of the contract concluded on the basis of a court decision. This situation does not always occur; more often you have to deal with the fact that the person applying for a job has only the most general information about the work required by the employer and the amount of payment. For this reason, the parties, in complying with the court decision, must re-agree on all, except those known at the time of the initial attempt at employment, the terms of the employment contract. The minimum set of these conditions is specified in Art. 57 of the Labor Code, and the starting points defining the limits of the employee’s claims and the minimum corresponding obligations of the employer should be the standard working conditions of employees performing similar labor functions for a given employer. In the case where the employer does not have such employees, one should focus on the standard working conditions characteristic of employment contracts for employees of a similar category who work in the same area.

This statement is based on the provisions of Art. 3 of the Labor Code, which prohibits discrimination against an employee in comparison with other workers, and Part 5 of Art. 2 of the Labor Code, which secures the employee’s right to fair working conditions, which in this situation must be recognized as the terms of employment contracts that are most common with a given employer or in a given area for workers of the corresponding professional category.

Particular attention should be paid to the fact that in the absence of an agreement to the contrary, the date of entry into force of such an agreement must be considered the day the employer refuses to conclude an employment contract with this employee.

5. The conclusion of an employment contract, as a rule, must precede the use of labor of any employee (see Articles 63 - 71 of the Labor Code and comments thereto). However, Part 3 of Art. 16 of the Labor Code made one exception to this rule, due to which the act of admission to work, included in a complex factual composition that gives rise to labor legal relations with a specific person, always precedes the conclusion of a contract. But to recognize this fact as an element of such a complex factual composition, certain conditions are also necessary. First of all, it is required that admission to work be carried out by entities authorized to perform this type of action (see paragraph 12 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”). These subjects include: the employer himself in the case when he is represented by an individual; persons performing the functions of sole or collegial bodies of the employer-organization, whose competence includes the authority to hire; other persons, although not authorized to hire, were acting at the time the person was actually admitted to work on direct instructions or with the knowledge of the employer or his authorized representative. All these persons, in most cases, belong to the management personnel of the employer, who are directly entrusted with the function of staffing the latter’s activities. Employees who are not such personnel should generally not be considered as persons who officially represent the employer and are therefore capable of performing any legally significant actions for him. The actual admission of an employee to work by such persons without the knowledge or instructions of the employer or his authorized representative is prohibited.

At the same time, in practice, there are common cases of a person being allowed to work as a representative of the management personnel of an organization, who formally did not have the necessary powers for this and therefore acted in excess of his powers without the knowledge or without a special order from the employer. However, due to specific circumstances, the employee allowed to work may have good reason to perceive the corresponding manager in this situation as an official representative of the employer who has the necessary authority to carry out such actions.

When resolving this type of case, it is necessary to proceed from the following considerations. Labor organization and labor management are the functions of the employer, which arise from his economic position as the sole owner and user of all factors of his economic activity, therefore the employer must perform all these functions at his own risk. The consequence of this is that it places the burden on it to bear all the consequences for the negative results of its business, including responsibility for the actions (inaction) of its employees during the performance of their labor duties in relation to third parties.

An employer can perform its functions effectively or ineffectively. When their effective implementation takes place, the employer adopts all the necessary local regulations, including internal labor regulations, giving everyone who is hired a clear idea of the hiring procedure, the rights and responsibilities of employees, the competence of managers, etc. In such conditions, it is practically impossible to accidentally involve in employment relationships those persons who do not have the necessary authority to do so.

A different situation arises when the employer performs the relevant functions ineffectively. In this case, there may be no local regulations at all regulating the competence of specific managers and the hiring procedure. Then any person coming to work for this employer is initially deprived of the opportunity to obtain a clear understanding of the real powers of the person who negotiated with him about applying for a job and allowed him to work. Taking into account the fact that the employer must bear economic and legal responsibility for the negative consequences of the ineffective organization of labor of its employees, the actual admission to work of a specific person in such a situation entails at a minimum the employer’s obligation to pay him for the time actually worked (work performed), and with the consent of the employer or his authorized representative - the emergence of an employment relationship (see Article 67.1 of the Labor Code and commentary thereto).

Consultations and comments from lawyers on Article 16 of the Labor Code of the Russian Federation

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As a general rule, labor relations arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with the rules established by the Labor Code. But besides this method, labor legislation provides for other grounds for the emergence of such relations. We will tell you what these reasons are in this article.

In accordance with Art. 15 of the Labor Code of the Russian Federation, labor relations are understood as relations based on an agreement between the employer and the employee on the latter’s personal performance for payment of a labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; the specific type of work entrusted to the employee), subordination of the employee rules of internal labor regulations when the employer provides working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations, employment contracts.

The parties to the labor relationship are the employee (an individual who has entered into an employment relationship with the employer) and the employer (an individual or legal entity (organization) that has entered into an employment relationship with the employee. In cases provided for by federal laws, another entity may act as an employer, entitled to enter into employment contracts).

Labor relations always arise on the basis of an employment contract, which can be concluded on the basis of various circumstances. Most often, an employment contract is concluded by agreement of the parties. However, it can also be concluded as a result (Article 16 of the Labor Code of the Russian Federation):

- election to office;

— appointment to a position or confirmation in a position;

— election by competition to fill the relevant position;

- assignments to work by bodies authorized in accordance with federal law against the established quota;

— a court decision on concluding an employment contract;

- actual admission of an employee to work with the knowledge or on behalf of the employer or his representative in the case where the employment contract was not properly drawn up.

Let us recall that an employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work for a specified labor function, to provide working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and this agreement, pay the employee wages in a timely manner and in full, and the employee undertakes to personally perform the labor function defined by this agreement, to comply with the internal labor regulations in force for this employer (Article 56 of the Labor Code of the Russian Federation).

Let us consider in more detail the above-mentioned reasons for concluding an employment contract, and consequently, the emergence of labor relations.

Labor relations as a result of election to office

Labor relations on the basis of an employment contract as a result of election to a position arise if election to a position requires the employee to perform a certain labor function (Article 17 of the Labor Code of the Russian Federation). Therefore, election to a position can become the basis for the emergence of labor relations both in institutions financed from budgets of various levels and in commercial enterprises.

Note.Labor function - work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; the specific type of work entrusted to the employee (Article 57 of the Labor Code of the Russian Federation).

Election to a position does not always entail the conclusion of an employment contract. For example, labor relations do not arise in the case of citizens being elected as deputies of the State Duma of the Federal Assembly of the Russian Federation, since a citizen, being elected as a representative of the population of the country, performs duties in a deputy position not in the interests and not under the direction of any employer (which in this case no), but in the interests of the whole society.

Since Art. itself 17 does not establish a list of positions with a specific labor function for which an election procedure is necessary; one should refer to laws or other regulations defining the elective procedure for filling certain positions. Let us name some laws that define this basis for entering into labor relations for managers of legal entities of various forms of ownership, since the performance of labor duties involves the exercise of the functions of the sole executive body of a legal entity.

1. Federal Law of December 26, 1995 N 208-FZ “On Joint-Stock Companies” - the sole executive body of a joint-stock company is usually elected at a general meeting of shareholders, and in cases provided for by the charter, the resolution of this issue may be included in the competence of the board of directors or the supervisory board of the company.

2. Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies” - the director is elected by the general meeting of the company’s participants (Article 40).

3. Federal Law of July 19, 1998 N 115-FZ “On the peculiarities of the legal status of joint-stock companies of employees (national enterprises)” - the head of the enterprise is elected by the general meeting of shareholders of the company.

4. Federal Law of 05/08/1996 N 41-FZ “On Production Cooperatives” - the chairman of the board of the cooperative is elected by the general meeting of members of the cooperative.

5. Federal Law of August 22, 1996 N 125-FZ “On Higher and Postgraduate Professional Education” - rectors of a state or municipal higher educational institution are elected in the manner established by the charter of such a higher educational institution.

Let us note that the emergence of labor relations as a result of election to a position may be provided for not only by laws, but also by the charters or local regulations of the employer, since labor legislation does not contain any restrictions on the categories of employees in respect of whom such a procedure for the emergence of labor relations may be applied. .

Election by competition

Article 18 of the Labor Code of the Russian Federation establishes that labor relations on the basis of an employment contract as a result of election through competition to fill the corresponding position arise if labor legislation and other regulatory legal acts containing labor law norms, or the charter (regulations) of the organization determine the list of positions to be filled by competition, and the procedure for competitive election to these positions.

The cases and procedure for the emergence of labor relations on the basis of an employment contract as a result of election to a position through competition may be established by law or other regulatory legal acts. However, there are cases when holding a competition necessarily precedes the conclusion of an employment contract.

So, in accordance with the requirements of Art. 332 of the Labor Code of the Russian Federation, the conclusion of an employment contract to fill the position of a scientific and pedagogical worker in a higher educational institution, as well as transfer to such a position, is preceded by election through a competition to fill the corresponding position. If an open-ended employment contract has been concluded with a scientific and pedagogical worker, the competition must still be held at least once every five years.

In addition, the competition should be held to fill positions of scientific workers and heads of scientific institutions and scientific workers of scientific centers subordinate to the Russian Academy of Sciences. The regulations on holding a competition to fill these positions were approved by Order of the Ministry of Education and Science of the Russian Federation, the Ministry of Health and Social Development of the Russian Federation and the Russian Academy of Sciences dated May 23, 2007 N 145/353/34.

Research and teaching staff also enter into employment contracts based on the results of a competition, the regulations for which are approved by Order of the Ministry of Education of the Russian Federation dated November 26, 2002 N 4114.

For employees of certain categories, the procedure for holding a competition to fill a vacant position is established by decrees of the Government of the Russian Federation or decrees of the President of the Russian Federation. These are the heads of federal state unitary enterprises and state civil servants.

Appointment or confirmation to a position

Labor relations arise on the basis of an employment contract as a result of appointment to a position or confirmation in a position in cases provided for by labor legislation and other regulatory legal acts containing labor law norms, or the charter (regulations) of the organization (Article 19 of the Labor Code of the Russian Federation).

In practice, workers are mainly appointed to positions in government bodies, for example, in the prosecutor's office or state-owned enterprises. In accordance with Art. 128 of the Constitution of the Russian Federation, judges of the Constitutional Court, the Supreme Court, and the Supreme Arbitration Court are appointed by the Federation Council on the proposal of the President of the Russian Federation, and judges of other federal courts are appointed by the President of the Russian Federation in the manner established by federal law.

But the act of appointment is required not only in government agencies. For example, according to Art. 55 of the Civil Code of the Russian Federation, heads of representative offices and branches are appointed by a legal entity and act on the basis of its power of attorney. Procedures for appointment to a position are determined by the constituent documents and other local regulations.

Referral to work by bodies authorized in accordance with federal law against the established quota

By virtue of Art. 13 of the Law of the Russian Federation of April 19, 1998 N 124-FZ “On Employment of the Population in the Russian Federation,” the state provides additional guarantees to citizens experiencing difficulties in finding work. Some federal laws oblige the employer to enter into an employment contract with employees sent by local governments to meet the established quota. Thus, on the basis of the Federal Law of November 24, 1995 N 181-FZ “On the social protection of disabled people in the Russian Federation”, quotas were established for hiring disabled people and a minimum number of special jobs for disabled people in organizations, regardless of organizational and legal forms and forms of ownership. Such a quota by virtue of Art. 21 of this law is established as a percentage of the average number of employees by the legislation of the constituent entity of the Russian Federation and cannot be less than 2 and more than 4%. For example, Law of the Nizhny Novgorod Region dated December 26, 2007 N 191-Z “On job quotas” for disabled people who have work recommendations in accordance with an individual rehabilitation program, and workers under 18 years of age, including orphans and children in difficult life situations , a quota is set at 3% of the organization’s headcount.

Note.The quota for the employment of disabled people is established in organizations with more than 100 employees.

Employers, in accordance with the established quota for hiring disabled people, are obliged to create or allocate jobs for their employment, create working conditions for disabled people in accordance with their individual rehabilitation program and the requirements of the legislation of the Russian Federation.

Let us note that public associations of disabled people and organizations formed by them are exempt from quotas, including business partnerships and societies whose authorized (share) capital consists of the contribution of a public association of disabled people.

Pay attention!For refusal to hire a disabled person against the established quota, an administrative fine in the amount of 2,000 to 3,000 rubles may be imposed on the employer. (Article 5.42 of the Code of Administrative Offenses of the Russian Federation).

The employer is also obliged to employ:

— persons suffering from mental disorders (Article 16 of the Law of the Russian Federation of July 2, 1992 N 3185-1 “On psychiatric care and guarantees of the rights of citizens during its provision”);

- workers under 18 years of age when they combine work with training (Article 11 of the Federal Law of July 24, 1998 N 124-FZ “On Basic Guarantees of the Rights of the Child in the Russian Federation”);

Court decision on concluding an employment contract

According to the norms of Art. 64 of the Labor Code of the Russian Federation prohibits unreasonable refusal to conclude an employment contract. At the request of a person who is refused to conclude an employment contract, the employer is obliged to inform in writing the reason for the refusal. Refusal to conclude an employment contract can be appealed in court.

In accordance with Art. 391 of the Labor Code of the Russian Federation, an individual labor dispute about a refusal to hire falls within the competence of justices of the peace and is considered directly in the courts. The result of consideration of such a dispute may be a judge’s decision to conclude an employment contract.

Actual permission of the employee to perform work

According to Art. 61 of the Labor Code of the Russian Federation, an employment contract comes into force from the day it is signed by the employee and the employer, unless otherwise established 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.

Paragraph 12 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” states: if the employment contract was not properly drawn up, but the employee began work with the knowledge or on behalf of the employer or his authorized representative , then the employment contract is considered concluded and the employer or his authorized representative is obliged no later than three working days from the date of actual admission to work to draw up the employment contract in writing (Article 67 of the Labor Code of the Russian Federation). It should be borne in mind that the representative of the employer in this case is a person who, in accordance with the law, other regulatory legal acts, constituent documents of a legal entity (organization) or local regulations, or by virtue of an employment contract concluded with this person, is empowered to hiring workers, since it is in this case that when an employee is actually allowed to work with the knowledge or on behalf of such a person, an employment relationship arises (Article 16 of the Labor Code of the Russian Federation) and the employer may be obligated to formalize an employment contract with this employee in a proper manner.

Labor relations between an employee and an employer can arise only by virtue of their voluntary agreement, based on the free will of each party. By virtue of this Art. 16 of the Labor Code speaks of an employment contract as a universal basis for the emergence of all labor relations. From a legal point of view, an employment contract is a law-forming legal fact - a mutual (employee and employer) expression of will, with which the law connects the emergence of labor rights and obligations of its parties.

In cases and in the manner established by law, other normative acts or the charter (regulations) of the organization, labor relations arise on the basis of an employment contract as a result of:

Election(s) to a position;

Elections by competition to fill the relevant position;

Appointments to or confirmation of positions;

Referrals to work by bodies authorized by law against the established quota;

Court decision on concluding an employment contract;

Actual admission to work with the knowledge or on behalf of the employer or his representative, regardless of whether the employment contract was properly drawn up.

Let us consider in more detail the grounds for the emergence of labor relations.

Labor relations arising as a result of election(s) to a position.

In accordance with Art. 17 of the Labor Code of the Russian Federation, labor relations on the basis of an employment contract as a result of election (elections) to a position arise if the election (elections) to a position involves the employee performing a certain labor function, for example, during elections to representative, legislative and executive bodies of state and local authorities, to the governing bodies of joint stock companies.

Federal legislation provides for such a procedure primarily for filling the positions of managers of legal entities of various forms of ownership and management. In particular, it is established for those positions, the performance of labor duties for which involves the exercise by the corresponding manager of the functions of the sole executive body of a legal entity. In this order, positions of managers of the following types of legal entities are filled:

a) a joint-stock company (the sole executive body of this company, as a rule, is elected at a general meeting of shareholders, and in cases provided for by the company’s charter, the resolution of this issue may be included in the competence of the board of directors or the supervisory board of the company - Article 48 of the Federal Law of 26 December 1995 N 208-FZ "On Joint-Stock Companies");

b) limited liability company (the head of this company is elected by the general meeting of the company's participants - Article 40 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies");

c) a national enterprise (the head of the enterprise is elected by the general meeting of shareholders of the company - Article 10 of the Federal Law of July 19, 1998 N 115-FZ “On the peculiarities of the legal status of joint-stock companies of workers (national enterprises)”);

d) a production cooperative (the chairman of the board is elected by the general meeting of the cooperative from members of the cooperative - Article 17 of the Federal Law of May 8, 1996 N 41-FZ “On Production Cooperatives”).

In addition, the election procedure is used to fill the positions of dean of the faculty and head of the department of an educational institution of higher professional education - Art. 20 of the Federal Law of August 22, 1996 N 125-FZ "On Higher and Postgraduate Professional Education". The positions of the rector of a university can be filled in the same procedure, in the case where such a procedure is established by the charter of the relevant institution of higher professional education.

Based on the results of the election (elections) to the position, an order (instruction) must be issued to hire the applicant, which is signed by an authorized official. It is from the date of hiring specified in the order, or from the date of actual admission to work, that the employee has the right to receive wages, guarantees and compensation provided for by current legislation.

Article 275 of the Labor Code of the Russian Federation determines that the constituent documents of an organization may establish procedures preceding the conclusion of an employment contract with the head of the organization (holding a competition, election or appointment to a position, etc.).

Labor relations arising as a result of election by competition.

In accordance with Art. 18 of the Labor Code of the Russian Federation, labor relations on the basis of an employment contract as a result of election through competition to fill the corresponding position arise if the law, other regulatory legal act or charter (regulations) of the organization determines the list of positions to be filled through competition and the procedure for competitive election to these positions.

An employment contract with employees hired through a competition is concluded, in particular, with persons hired for certain positions in the state civil service, which is regulated by Federal Law No. 79-FZ of July 27, 2004 “On the State Civil Service of the Russian Federation.” The competition consists of assessing the professional level of applicants for civil service positions and their compliance with the qualification requirements for civil service positions.

The competition is not held in the following cases:

When appointed to positions in the civil service of the categories “managers” and “assistants (advisers)” filled for a certain term of office;

When appointed to civil service positions in the “managers” category, appointment to and dismissal from which are carried out by the President of the Russian Federation or the Government of the Russian Federation;

When concluding a fixed-term service contract;

When appointing a civil servant to another position in the civil service in cases provided for in Part 2 of Art. 28 and parts 1, 2 and 3 of Art. 31 of the Law on State Civil Service;

When appointing a civil servant (citizen) to a civil service position who is part of a personnel reserve formed on a competitive basis.

A competition may not be held for appointments to certain positions in the civil service, the performance of official duties for which involves the use of information constituting state secrets, according to the list of positions approved by decree of the President of the Russian Federation.

By decision of the employer's representative, a competition may not be held for appointments to civil service positions belonging to the group of junior civil service positions.

An applicant for a civil service position may be denied admission to participate in the competition due to non-compliance with the qualification requirements for a vacant civil service position, as well as due to the restrictions established by law for entry into the civil service and its passage.

According to paragraph 2 of Art. 20 of the Law “On Higher and Postgraduate Professional Education”, the filling of all positions of scientific and pedagogical workers in a higher educational institution is carried out under an employment contract concluded for a period of up to 5 years. When filling positions of scientific and pedagogical workers, with the exception of the positions of dean of the faculty and head of the department, the conclusion of an employment contract is preceded by a competitive selection. The regulation on the procedure for filling positions of scientific and pedagogical workers in a higher educational institution of the Russian Federation was approved by Order of the Ministry of Education of Russia dated November 26, 2002 N 4114.

Employment contracts with heads of federal state unitary enterprises in accordance with Decree of the Government of the Russian Federation of March 16, 2000 N 234 “On the procedure for concluding employment contracts and certification of heads of federal state unitary enterprises” are also concluded on a competitive basis.

Election to a position must be formalized (confirmed) by an order (instruction) on hiring. It is from the date specified in this order (instruction) that the employee must be paid wages, provided with guarantees and compensation provided for by labor legislation.

Election by competition is mandatory in accordance with the list of positions to be filled by competition, as well as the procedure for competitive election to these positions.

Labor relations arising as a result of appointment to a position or confirmation in a position.

In accordance with Art. 19 of the Labor Code of the Russian Federation, labor relations may arise on the basis of an employment contract as a result of appointment to a position or confirmation in a position in cases directly provided for by law, other regulatory legal act or charter (regulations) of the organization.

It should be taken into account that appointment to a position or confirmation in a position is formalized by order (instruction) of an official who has the appropriate authority. This order (instruction) must indicate the date from which the employee is appointed to the position or confirmed in the position. It is from this date that the employee has the right to receive wages in the appropriate amount, as well as guarantees and compensation provided by labor legislation.

Article 55 of the Civil Code of the Russian Federation stipulates that heads of representative offices and branches are also appointed to the position.

Article 20 of the Federal Law of November 14, 2002 N 161-FZ “On State and Municipal Unitary Enterprises” provides for the right of the owner of the property of a unitary enterprise to appoint the head of the enterprise.

A basis such as appointment or confirmation in a position may occur if it is directly provided for by the provisions of regulatory legal acts or the charter (regulations) of the organization. Labor relations arise after signing an order for appointment to a position (confirmation in a position) only from the date specified in such an order, and only if the order is issued by an authorized person. It is from the date specified in the order of appointment to a position (confirmation in a position) that the employee must begin to perform his job duties, and the employer, in turn, is obliged to pay wages, provide all benefits and guarantees provided for by current legislation. In other cases, an agreement within the framework of labor relations may be considered concluded from the day the employee is actually admitted to work.

Labor relations arising as a result of a court decision on the conclusion of an employment contract.

Sometimes the occurrence of the next legal fact is due to the presence of the previous one. For example, if an employment relationship arises on the basis of a court decision, then the latter is a mandatory prerequisite for concluding an employment contract when reinstated at work in court.

This actual composition is formed under the following conditions:

a) unjustified refusal to hire a specific person (Article 64 of the Labor Code of the Russian Federation);

b) this person appeals in court the fact of refusal to conclude an employment contract;

c) a court decision on the conclusion by a specific employer of an employment contract with the relevant person.

Based on a court decision, the employer must enter into an employment contract with a person whom they previously refused to hire. At the same time, it must be borne in mind that the court, when making an appropriate decision, does not determine the specific content of this agreement. In this regard, the question arises: on what terms should such an employment contract be concluded? There is no clear answer to this for the reason that the situation preceding an unreasonable refusal to hire a person can be completely different in each specific case.

There are at least two possible starting positions that determine the content of an employment contract concluded on the basis of a court decision. Thus, if an unjustified refusal to hire took place when the employer had previously announced all the essential conditions of the employment contract, then these conditions should form the content of the contract concluded on the basis of a court decision.

However, this situation is quite rare. Much more often, a person comes to apply for a job, possessing only the most general information characterizing the work required by the employer and the amount of payment. Finding themselves in such a situation, the parties, in compliance with the court’s decision, must actually come to an additional agreement regarding all, except those known at the time of the initial attempt at employment, the terms of the employment contract. The minimum set of these conditions is determined by Art. 57 Labor Code of the Russian Federation. At the same time, the starting points that determine in this case the maximum limits of the employee’s claims and the corresponding level of the employer’s responsibilities should be the standard working conditions of employees performing similar labor functions for a given employer. In the event that the employer does not have such employees, it is necessary to focus on the usual working conditions characteristic of employment contracts for employees of the same specialty, qualification or position in the same area.

This follows from the content of Art. 3 of the Labor Code of the Russian Federation, which prohibits discrimination against an employee in comparison with other workers. In addition, in Part 7 of Art. 2 of the Labor Code of the Russian Federation establishes the employee’s right to fair working conditions, and as such, in relation to the described case, the most common conditions of employment contracts concluded with employees of the corresponding category should be recognized by the employer or in a given area.

Labor relations arising as a result of the employee’s actual admission to work.

In accordance with Art. 61 of the Labor Code of the Russian Federation, the actual admission of an employee to work with the knowledge or on behalf of the employer or his representative means the obligation to formalize labor relations with such an employee.

If the employee was actually admitted to the workplace for which he was intended, and this happened with the knowledge of an authorized official who has the right to hire in the organization, then the employer or his corresponding representative is obliged to draw up a written employment contract with such employee.

As noted in paragraph 12 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as the Resolution of the Plenum of the RF Armed Forces N 2), the representative of the employer in this case may be a person who, in accordance with by law, other regulatory legal acts, constituent documents of a legal entity (organization) or local regulations or by virtue of an employment contract concluded with this person, is vested with the authority to hire workers, since it is in this case that when the employee is actually admitted to work with the knowledge or on behalf of such persons, an employment relationship arises and the employer may be obligated to formalize an employment contract with this employee in a proper manner.

If there are facts of authorized actual admission to work, the employer is obliged to conclude an employment contract with the employee within three days on the basis of Art. 67 Labor Code of the Russian Federation.

Labor relations arising on the basis of being sent to work by bodies authorized by law on account of the established quota.

Referral to work against the established quota is made by authorized government bodies. Such a referral is the basis for the employer to conclude an employment contract with the referred employee.

For failure to conclude an employment contract with persons sent by authorized bodies to account for the established quota, organizations may be required to pay compensation.

At the same time, it should be taken into account that, based on the specifics of the organization’s activities, an agreement may not be concluded with some of the persons sent (for example, for work that requires appropriate education, qualifications, access to information constituting state secrets, etc.) .

Quotas are introduced in order to comply with the guarantees provided for in Art. 37 of the Constitution of the Russian Federation, according to which everyone has the right to work, as well as to remuneration for work without any discrimination and the right to protection from unemployment.

Thus, in accordance with the Law of the Russian Federation of April 19, 1991 N 1032-1 “On Employment of the Population in the Russian Federation”, persons with disabilities are classified as having difficulty finding work; citizens who support persons who need constant care, assistance or supervision; persons released from prison; young people under the age of 18 looking for work for the first time.

Article 21 of the Federal Law of November 24, 1995 N 181-FZ “On the social protection of disabled people in the Russian Federation” determines that organizations, regardless of ownership and organizational and legal forms, whose average number of employees is more than 100 people, are set a quota for admission to work of disabled people as a percentage of the average number of employees, but not less than 2% and not more than 4%. Organizations with an average number of 100 people or less, as well as public associations of disabled people and organizations formed by them, including business partnerships and societies, the authorized (share) capital of which consists of the contribution of a public association of disabled people, are exempt from such quotas.

Quotas for hiring disabled people are determined by state authorities of the constituent entities of the Russian Federation.

In case of failure or impossibility of fulfilling the established quota for hiring disabled people, employers are obliged to pay a monthly mandatory fee to the budgets of the constituent entities of the Russian Federation for each unemployed disabled person within the established quota. The amount and procedure for employers to pay this fee are determined by government bodies of the constituent entities of the Russian Federation.

Federal Law of July 24, 1998 N 124-FZ “On Basic Guarantees of the Rights of the Child in the Russian Federation” provides for quotas of jobs for the employment of workers under 18 years of age who are especially in need of social protection (orphans, graduates of orphanages, as well as children left without care parents).

Quotas are established on the basis of agreements concluded between employers and local governments. When determining a quota, its size is set for each category of citizens and the specific organizations for which it is established.

The area of labor relations seems quite controversial, regardless of its regulation at the legislative level. First of all, the question of whether labor relations arise on the basis of an employment contract alone, or can develop without any formal procedures, is controversial.

What is labor relations?

Based on the provisions of Article 15 of the Labor Code of the Russian Federation, labor relations are any relationship that results in the employee performing certain actions for an appropriate remuneration. A special feature of labor relations is the employment contract.

Example: the Zelenstroy enterprise (headed by N.I. Potapova) employed 2 employees as janitors. The company refused official employment, which did not cause any complaints from employees.

The absence of an employment contract did not become a reason for refusal to perform the requested work, and therefore, a reason for interrupting the existing labor relationship. The parties entered into an oral agreement, confirmed by facts and actions; this is quite enough to recognize them as legal.

Basis for the emergence of labor relations

An employment contract and labor interaction begin due to the presence of the following grounds:

election to office;
appointment to a position based on the results of a competition;
confirmation in position;
labor activity (performing assigned work);
providing employees with quotas.

Appointment occurs through elections.

According to Art. 17 of the Labor Code of the Russian Federation, labor relations resulting from the election of a citizen to a specific position presuppose the assignment to him of a specific work function - representation, protection of the interests of a certain category of citizens, a social stratum.

The legislation defines the following series of positions for which elections are held:

the post of President of the country, the post of deputy of Parliament, deputy of local, district, regional government structures (any position related to work in representative, legislative and executive authorities);
head of a legal entity (OJSC, LLC, People's Enterprise and production cooperative).

To obtain a government position, an applicant must win a general election.

To take the post of General Director of an OJSC, an applicant only needs to be elected to it by decision of a staff meeting. In the same way, the head of the LLC, the head of the People's Enterprise and the head of the production cooperative are determined.

The dean of a higher educational institution, the head of the department, and the rector of the university are selected from the candidates submitted for consideration. The teaching staff and students have the right to vote.

The employment relationship begins after the production order is issued. The selected person is assigned a salary, a work schedule is established, and safety instructions are given.

The election of a position is legal, unless otherwise stated in the Charter. The employer has the right to insist on the next elections (Article 275 of the Labor Code of the Russian Federation).

Labor relations on a competitive basis

The employer selects an employee from several applicants.

In Art. 18 of the Labor Code of the Russian Federation notes that labor relations become a consequence of participation in a competition for a position. The law or the charter of a particular enterprise may insist on a competition. At the same time, the rules for conducting it and the list of positions presented for occupation are determined in advance.

During the competition, the level of professional training of the applicant is determined, as well as his ability to occupy a specific position.

In some legally defined cases, a competition is not held. Thus, in order to occupy a position through a competition, it is not required to hold one in situations when it comes to:

on temporary replacement with the provision of limited powers;
on appointment to the position of a manager directly by the President of the Russian Federation or the Government of the Russian Federation;
about a fixed-term contract;
about promotion, transfer;
on the appointment of persons from the personnel reserve to the position (the winner of the competition was unable to occupy the post assigned to him).

Employees who possess classified information (state secrets) do not participate in the competition.

The competitive basis is one of the grounds for the emergence of labor relations. By decision of the head of the enterprise, the competition can be canceled (we are talking about occupying a non-managerial position).

Employees of appropriate qualifications who have experience and work experience in a particular field can take part. If an employee does not have sufficient knowledge, he is not allowed to participate in the competition.

Having decided on the candidacy of an employee, the manager issues an Order on his appointment and signs an employment contract.

Appointment (approval) to a position

Appointment to a position occurs by order from the head of the organization.

The simplest and most understandable way to establish labor relations. The basis is an employment contract, which is signed after the employee is approved for the post (Article 19 of the Labor Code of the Russian Federation). An employment contract is preceded by an order giving the right to receive wages, as well as benefits, compensation and payments.

The order contains information about the specific position, the employee who occupied it and the date of his appointment. It is from this date that the countdown of working hours begins. If, after the issuance of the order, the conclusion of an employment contract did not occur, but the employee took his post, then this state of affairs can be considered as the beginning of an employment relationship.

Not only ordinary employees, but also heads of branches and representative offices are approved for positions.

Thus, the owner of the company can independently determine the person he wants to see as its leader (general director).

To obtain a post, a candidate only needs to have education, skills and experience; he is not required to participate in a competition or wait for the decision of a meeting of the labor collective. His appointment depends on the head of the structural unit.

After an unreasonable refusal to hire, an employee may go to court.

Labor legislation provides for situations in which a court order is sufficient to establish an employment relationship.

Such an employment relationship can begin as a result of:

an applicant for a position receives an unreasonable refusal to provide it (a young single mother was not hired because she had a child, the employer refused to work for a pregnant woman);
appealing the received refusal in court;
obtaining a court order to appoint an applicant to a position of interest, bypassing the wishes of the employer.

Citizens who have lost their jobs without legal grounds can also go to court.

For example, an employee was dismissed from his position due to the hiring of a specialist who can perform several duties at the same time, as a result of which the position of the dismissed employee was reduced. In addition, it is considered illegal to deprive employees of the right to work if they suffer from incurable but harmless diseases.

If the termination of the employment contract occurred due to the employer’s personal hostility towards the employee, and was not associated with the latter’s violation of labor standards adopted at the enterprise, then there are no grounds for terminating the employment relationship.

The court will take the side of the injured employee and send an order to the employer to reinstate him in his position.

In Part 1, Art. 3. The Labor Code of the Russian Federation states that all employees are equal before the law in the exercise of their labor rights. Any actions of a discriminatory nature (selection for work according to marital status, race, gender, age, religious preferences and place of residence) are illegal.

The only reason for refusal of employment may be the applicant's lack of qualifications.

The employee has the right to refuse the position.

The presence of an employment contract is not the only basis for starting an employment relationship.

In Art. 61 of the Civil Code of the Russian Federation contains an indication that the performance by an employee of the task assigned to him with the knowledge and approval of the employer is the actual basis for concluding a formal agreement with him and starting an employment relationship.

An employment contract must be concluded with such an employee within the time limits established by law. No more than 3 working days are allotted for processing the relevant papers (Article 67 of the Labor Code of the Russian Federation).

If the employer does not fulfill this condition, the employee may refuse to continue working or remain in his current position.

The decision will not be his fault. When checking the activities of an enterprise, such relationships will be identified, and the employer will suffer administrative punishment.

Assignment to work under quota

The quota does not apply to everyone.

In accordance with the Law of the Russian Federation dated April 19, 1991 N 1032-1 (as amended on December 28, 2016) “On Employment in the Russian Federation,” citizens experiencing problems with employment can be sent to work in organizations that have available jobs and ready to accept such persons.

Quotas apply to:

persons under the age of 18;
disabled people;
persons who have taken on the responsibility of caring for the sick, children, and the disabled;
citizens who have served a sentence in prison.

The responsibility for hiring these categories of citizens rests with the heads of enterprises with more than 100 employees. The number of quota employees employed by a particular enterprise depends on the number of employees of the enterprise. On average, the number of such people in the state does not exceed 2-4%.

Enterprises with fewer than 100 employees, as well as organizations whose activities require secrecy and the presence of highly qualified personnel, are exempt from participation in such a program.

If an enterprise does not want to hire employees under a quota, it is obliged to make monthly payments to the budget of the constituent entities of the Russian Federation. The amount of payments is equal to the salary of an unemployed employee under the quota.

Particular attention is paid to the employment of orphans, as well as socially vulnerable categories of citizens. The number of quota places and the name of enterprises subject to the quota are determined by government authorities. In this case, a corresponding agreement is concluded between a specific organization and government representatives.

Quite often, such agreements are concluded between the management of a university and an organization that could employ its graduates. At the same time, the latter, in the course of their educational activities, may have the opportunity to use the enterprise’s base for internship.

After determining the basis for starting an employment relationship, the employer is responsible for creating acceptable working conditions for the employee that comply with the norms of current legislation.

Regardless of whether an employee was hired by appointment to a position, selected, passed through a competition, was reinstated through a court decision, or passed through a quota, from the moment an employment contract is concluded with him, he acquires not only the right to work, but and responsibilities related to maintaining work routines and following management orders.

The parties must be responsible in fulfilling their responsibilities.

The parties to the labor relationship (employee and employer) are defined in Art. 20 Labor Code of the Russian Federation.

An employee is any individual who carries out labor activities under a written agreement or as a result of an oral agreement. Employees can be persons 16 years of age or older; in rare cases, citizens over 14 years of age can be hired to carry out work.

Employer is an individual or legal entity or other entity that has the right to conclude an employment contract. The employer's age is at least 18 years. A minor over 14 years of age who has been recognized as a capable citizen (has his own income and permission to engage in business from his guardians or parents) can also act in this capacity.

If the employer is an individual, he is required to obtain the status of an Individual Entrepreneur (IP), a license to carry out his chosen activity.

The employer is obliged to respect the rights of employees. Situations in which the employer is not officially registered are no exception.

Basic rights and obligations of the employee and employer

The employer must provide the employee with adequate conditions to perform his duties.

Acting as an employer, an individual or legal entity is obliged to:

monitor compliance with labor laws;
provide work in accordance with the employment contract;
create safe conditions for work at the enterprise;
monitor the technical equipment of the enterprise;
pay for labor in accordance with its value;
make timely payment of wages within the established deadlines;
respond to requests from the workforce, do not avoid communicating with representatives of trade union organizations;
insure the life and health of employees;
compensate for damage caused to the employee in the course of work;
fulfill other obligations assumed.

At the same time, the employee is assigned the following responsibilities:

conscientious and timely performance of labor duties;
familiarization with and adherence to internal regulations;
compliance with labor discipline;
fulfillment of labor standards;
compliance with safety regulations;
careful attitude towards the property entrusted to him;
notification to the employer about emergency situations that led to the suspension of work, equipment breakdown, or the inability of the employee to carry out work activities.

The employee must fulfill all requirements according to the terms of the employment contract.

If an employee violates one of the points listed above, the employer has the right:

impose disciplinary and financial penalties;
terminate the employment contract legally;
bring the employee to justice due to his failure to fulfill labor duties and damage to entrusted property;
sue.

In addition, an employer may join with other employers to protect its own interests. He also has the right to negotiate with the team, conclude and change the provisions of a collective agreement, and adopt local regulations.

The employer has the right to reward a specific employee or the entire workforce.

The employee has the right:

refuse to sign an employment contract, insist on changing its content, or termination;
demand the provision of work corresponding to the available qualifications;
demand the creation of favorable working conditions, labor protection and technical safety;
receive wages and other payments provided for by law in a timely manner and in full;
for rest (weekends, shortened working hours, vacation);
obtaining all information relating to his work activity;
apply for professional retraining in order to obtain new knowledge and skills;
become a member of a trade union of workers in order to protect their own rights and interests;
participate in the management of the enterprise in the form provided for this;
enter into negotiations on behalf of the team, be a participant in the collective agreement;
exercise your right to strike;
demand compensation for harm caused to him at work;
demand that he be provided with insurance.

Thus, the basis for labor relations may be not only an employment contract, but also the very fact of labor activity carried out with the knowledge of the employer and with his encouragement. The parties to the labor relationship are the employee and the employer. Each party is assigned certain rights and responsibilities that make interaction within the labor relationship possible.

From this video you can learn about the basics of labor law.

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

In cases and in the manner established by labor legislation and other regulatory legal acts containing labor law norms, or the charter (regulations) of an organization, labor relations arise on the basis of an employment contract as a result of:

election to office;

election by competition to fill the relevant position;

appointment to a position or confirmation in a position;

assignments to work by bodies authorized in accordance with federal law against the established quota;

court decision on concluding an employment contract;

paragraph seven is no longer valid;

recognition of relations associated with the use of personal labor and arising on the basis of a civil contract as labor relations.

The actual admission of an employee to work without the knowledge or instructions of the employer or his authorized representative is prohibited.

Commentary to Art. 16 Labor Code of the Russian Federation

1. The basis for the emergence of an employment relationship between an employee and an employer is a legal fact such as the conclusion of an employment contract in accordance with the Labor Code (see commentary to Section III of the Labor Code).

2. For some employees, the basis for the emergence of an employment relationship is a complex factual composition: in addition to the employment contract, it must be preceded or followed by some other act (for example, an act of election or appointment to a position). But this is possible only in cases and in the manner established by laws and other regulatory legal acts containing labor law norms, or by the charter (regulations) of the organization.

3. Other legal facts, which, along with the employment contract, serve as the basis for the emergence of labor relations, are named in Part 2 of Art. 16 TK. Such of them as election (elections) to a position; election by competition to fill the relevant position; appointment to a position or confirmation in a position are devoted to Art. Art. 17 - 19 Labor Code (see commentary to these articles).

4. Referral to work by bodies authorized in accordance with federal law against the established quota may take place in relation to persons experiencing difficulties in finding a job, for example, disabled people (see Articles 20 and 21 of the Federal Law of November 24, 1995 N 181-FZ “On social protection of disabled people in the Russian Federation” // SZ RF 1995. N 48. Art.

5. When appealing in court an employer’s illegal refusal to conclude an employment contract with an employee (see commentary to Article 64 of the Labor Code), the court may make a decision according to which the employer will be obliged to conclude an employment contract with the employee.

6. Actual admission to work, if the employee began work with the knowledge or on behalf of the employer or his representative, regardless of whether the employment contract was properly executed (for example, there was no mandatory written form), also acts as a legal fact when labor relations (see commentary to Article 67 of the Labor Code).

Second commentary on Article 16 of the Labor Code

1. When considering the grounds for the emergence of labor relations, it is necessary to know the legal facts that give rise to labor relations. The main, leading basis is the employment contract between the employee and the employer. By concluding an employment contract, citizens implement the principle of freedom of labor in accordance with Art. 37 of the Constitution of the Russian Federation. It is a simple composition as the basis for the emergence of an employment relationship. The conclusion of an employment contract is associated with important legal guarantees provided for by labor legislation.

The commented Code assigned an independent section to the employment contract. III, consisting of 5 chapters (see comments to Art. 56 - 90).

2. In some cases, by virtue of Part 2 of Art. 16 of the Code, labor relations may arise as a result of a complex legal structure, when, in addition to the employment contract, other legal facts are necessary.

When elected (elections) to a position, elected through a competition to fill a corresponding position, appointed to a position or confirmed in a position, two legal facts are required (for more details, see Articles 17 - 19 of the Code and comments thereto).

3. When an employment relationship arises, in addition to the employment contract, there may also be such a legal fact as assignment to work by authorized bodies on account of the established quota.

The labor relationship arises from a complex composition in cases where, in accordance with the law, the employer is also obliged to hire a citizen against the established quota. This quota is established for disabled people, persons under 18 years of age, orphans and children without parental care. Thus, in accordance with the Federal Law of November 24, 1995, with subsequent amendments and additions, a quota of 2 to 4% of the average number of employees is established for all organizations, regardless of organizational and legal forms and forms of ownership, the number of employees in which is more than 30 people .

In Moscow, the Law of November 12, 1997 “On quotas for jobs in the city of Moscow” is in force. It was adopted as a development of the Federal Law of December 21, 1996 “On additional guarantees for the social protection of orphans and children left without parental care” (SZ RF. 1996. N 52. Art. 5880; 1998. N 7. Art. 788; 2000. N. 3348; 2002. N. 1975; 2003. N. 160; Consequently, employers are obliged to accept minors (orphans, graduates of orphanages, children left without parental care).

The employer is also obliged to conclude an employment contract with persons who are sent to work by local governments.

4. A complex composition as the basis for the emergence of an employment relationship is necessary in a court decision to conclude an employment contract. Because in addition to the court decision, which is binding on the employer, it is necessary to conclude an employment contract.

5. The Code allows actual admission to work with the knowledge or on behalf of the employer or his representative as the basis for the emergence of an employment relationship, regardless of whether the employment contract was properly drawn up. It should be borne in mind that this legal fact will give rise to labor relations if the employee began to perform a labor function without a written employment contract. In this case, the employer is obliged to draw up an agreement in writing within three days from the date of commencement of work.

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