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The main institutions of labor law in foreign countries. Labor law systems in foreign countries

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Introduction

IN modern society topics related to labor law are very popular and relevant.

How labor law develops in Russia is known to most citizens, but foreign labor law is the opposite. The purpose of studying this topic is to familiarize with labor law abroad, namely in the countries of the European Union, Asian countries, as well as in the American states.

Migration processes are very developed in Russia, people leave for other countries to work and not only, therefore, knowledge of the labor standards of foreign countries is necessary in this case.

When writing this work, the following tasks were identified:

· Familiarization with the main normative documents EU countries, as well as American states;

· Acquaintance with the peculiarities of labor relations in Asian countries;

· The right to work of preferential categories of citizens.

Thus, in accordance with the goals and objectives set, one can get acquainted with the peculiarities of the organization of labor law in foreign countries.

Characteristicslabor law in EU countries

labor law foreign country

The Council of Europe (CE) is a regional organization of European states, established in 1949. According to the Charter, its members can be countries that are parliamentary democracies and respect the principles of pluralism and fundamental human rights and freedoms.

Today the Council of Europe is the most representative organization on the continent. It includes 41 states, including Russia (since 1996).

Regional European labor standards are enshrined mainly in two acts: the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and the European Social Charter (1961, as amended in 1996).

Let's take a closer look at these two regulations.

Labor standards in the European Convention on Human Rights. The European Convention for the Protection of Human Rights and Fundamental Freedoms has now been ratified by almost all CE member states, including the Russian Federation.

In this Convention, two articles are devoted to labor rights. Article 4 prohibits forced or compulsory labor. However, the following are excluded from the concept of forced labor:

any work that would ordinarily be done while incarcerated by law or on parole from such imprisonment;

any service of a military nature, and in countries that recognize the refusal of persons to perform such service for political and religious-ethical reasons, the service, the performance of which is required instead of mandatory military service;

any service obligatory in cases of emergency or calamity threatening the life or well-being of the population;

any work or service that is included in ordinary civic duties.

Article 11 enshrines freedom of association, including the right to form and join trade unions to protect one's interests.

This article allows for the imposition of legal restrictions on the exercise of trade union rights by members of the armed forces, the police and government controlled. Restrictions which are provided by law and which are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of public health or morals, or for the protection of the rights and freedoms of others, are also permitted.

The European Court of Human Rights (Strasbourg), which has jurisdiction over cases related to the implementation and interpretation of the Convention, is called upon to ensure compliance with the European Convention on Human Rights. Judges are elected by the Parliamentary Assembly for 6 years.

The European Social Charter is a code of basic social and labor rights for workers. The main part of the European norms.

Annex to new edition The European Social Charter clarifies the nature of the claims of employees in the event of bankruptcy of an enterprise. These requirements may include at least:

workers' complaints about wages for a period of at least three months under the system of privileges and eight weeks in the presence of guarantee funds until the bankruptcy of the enterprise or termination of employment;

· Claims of employees for vacation pay falling on the year of bankruptcy of the enterprise or termination of labor relations;

· Claims by employees for other types of absence from work of at least three months under the benefit system and eight weeks under the guarantee funds before bankruptcy or termination of employment.

National laws or regulations may limit workers' claims in connection with the bankruptcy of an enterprise to a certain amount, the level of which must be socially acceptable.

Particular attention should be paid to ensuring the interests of employees in case of collective layoffs. Employers are required to inform staff in advance of upcoming collective layoffs, consult with employee representatives in order to limit or mitigate such layoffs, for example, through measures aimed at employment or retraining of laid-off workers. Employees and their representatives have the right to participate in consultations on decisions proposed by employers that may significantly affect the employment situation.

The right to fair working conditions. In order to exercise this right, it is proposed to establish a reasonable maximum working day and working week and to consistently reduce them as economic and other necessary conditions; provide weekly days off, minimum four weeks paid annual leave And additional holidays for workers engaged in hazardous and hazardous work, benefits for workers employed in night shifts; ensure that employees are informed in writing as soon as possible, but in any case not later than two months after the start of work, of the essential aspects of the employment contract or employment relationship. The Annex to the new edition of the European Social Charter notes that national legislation may provide that this duty of information shall not apply to employees who have an employment contract or have entered into labor Relations for a period not exceeding one month and/or work week which does not exceed 8 hours, as well as to employees who have an employment contract (labor relationship) of a random and / or specific nature, provided that non-application this provision justified by objective circumstances.

1. The right to safe and healthy working conditions implies the development and implementation by the state of an internally agreed policy on occupational safety and health, aimed at minimizing production risks, the issuance of rules on safety and industrial sanitation and their enforcement, the formation of industrial hygiene services with advisory and preventive functions.

2. The right to fair remuneration should provide workers and their families with a decent standard of living, recognize the right of men and women to equal pay for work of equal value; there should be limits on deductions from wages.

3. The right to association implies the freedom of workers and entrepreneurs to form local, national and international organizations for the protection of economic and social interests and to join these organizations;

With regard to the universality of the right to association, the European Social Charter goes further than ILO Convention No. 87 and does not allow restrictions on this right in relation to police officers.

As for "forced unionism", this issue is resolved in the Charter in the same way as by the control and supervisory organizations of the ILO (see 478-479 this book). The Appendix to the Charter states that its provisions cannot be interpreted as prohibiting or permitting "forced unionism".

The right of workers' representatives in the undertaking is to enable them to carry out their functions quickly and effectively, taking into account the system of industrial relations in each country and the size, capacity and needs of each undertaking. These rights must include effective protection against actions directed against them by the administration, including dismissal for public activities.

The right to collective bargaining involves the promotion of consultation between workers and employers, the creation of a collective bargaining mechanism to regulate labor through collective agreements, the promotion of conciliation and voluntary arbitration to resolve labor disputes.

The right of workers and entrepreneurs to collective action. In the event of a conflict of interest, the right of workers and employers to collective action, including the right to strike, should be recognized, unless this right is limited by a social peace obligation included in a collective agreement. Thus,

The protection of youth labor involves the inclusion in national legislation of provisions for a minimum age of admission to work at 15 years, with the exception of children employed in specifically named light work in national laws that cannot harm their health, morals or education. According to the Annex to the new edition of the European Social Charter, it is possible to provide in national legislation that young people who have not reached the minimum age for admission to work may work to the extent that it is absolutely necessary for them

The minimum age for admission to hazardous and hazardous work is 18 years; reduced hours of work, prohibition of night work (with the exception of certain types of work in accordance with national legislation), regular medical examinations, special protection against physical and moral dangers arising from labor activity.

The rights of pregnant women and mothers include at least 14 weeks of maternity leave from social security or public funds, prohibition of engaging in dangerous, harmful, hard work, regulation of night work, prohibition layoffs of pregnant women and mothers until the end of maternity leave; additional breaks for women with infants to feed them.

The right to vocational guidance implies the creation of a free public service designed to help youth and adults solve problems professional choice and professional career.

The right to vocational training presupposes the formation by the state of a system of technical and vocational education, encouragement and support of industrial apprenticeships and other ways of teaching boys and girls, the creation of special educational institutions for the retraining of workers, necessary in connection with technological development or new trends in the field of employment;

Support for apprenticeships and other ways of systematic training for boys and girls; inclusion in normal work time time of additional training of the employee at the initiative of the entrepreneur.

The rights of persons with disabilities imply the obligation of the state to actively promote the employment of persons with disabilities.

The right of migrant workers to assistance and protection implies, in particular, the establishment of wages and other working conditions for them no less favorable than for local workers; granting migrant workers the right to join trade unions and enjoy the benefits of collective bargaining regulation of labor on an equal basis with local workers; allow, within the limits specified by law, the transfer to the homeland of a certain part of the wages and other incomes of migrant workers; prevent the expulsion of migrant workers lawfully present in the host country unless they threaten national security, public interest or public morals.

The right of workers to information and consultation implies the right of workers and their representatives to be regularly and fully informed about the economic and financial position enterprises, to participate in consultations on decisions proposed by the administration that may significantly affect the interests of employees.

The right of employees to participate in determining and improving working conditions and the working environment implies the participation of employees and their representatives in determining and improving working conditions and organization, in ensuring occupational safety and health, and in organizing social and welfare services for employees.

The right of workers to protect their dignity at work. This new right of workers in the world practice implies the obligation of the state to contribute to the cessation of sexual harassment, as well as bullying, insulting, aggressive actions against individual workers in the workplace or in connection with work, and to take the necessary measures to protect workers from such actions.

The right of workers with family responsibilities implies the prohibition of discrimination against such workers and the obligation of the state to provide them with the opportunity to enter and remain employed, as well as to resume work after a break caused by the need to fulfill family responsibilities; take into account the specific needs of these workers when determining working conditions; provide that family responsibilities as such cannot be considered as a valid reason for dismissal.

The Annex to the new edition of the European Social Charter states that this right applies to workers, men and women who have family responsibilities in relation to their dependent children, as well as other immediate family members who clearly need their help and care, when these responsibilities limit their ability to participate and succeed in economic and productive activities.

In the field of labor and labor relations in the 15 countries that make up the European Union (EU), not only national labor law applies, but also relatively numerous and diverse norms adopted at the EU level by its bodies.

EU labor standards were created gradually, as Western European integration developed.

The 1957 Treaty of Rome on the Establishment of the European Economic Community (EEC) defined the framework for the law-making activities of the EEC in the field of labor and labor relations and established labor standards that became the foundation of European labor law.

The EEC regulations concerned labor migration and the provisions of migrant workers (Art. 7, 48-51), equal pay for men and women for equal work (Art. 119), safety and industrial sanitation (Art. 118), paid holidays (Art. 120).

The Treaty of Rome recorded the consent of the EEC member states to take measures to improve the living and working conditions of workers, to harmonize the relevant national legislation (Article 117) and singled out social issues of paramount importance for European integration. These include employment, labor law and working conditions, prevention of accidents and occupational diseases, industrial sanitation, the right to association and collective agreements (art. 118).

Among the most important goals, the Treaty of Rome proclaimed the convergence of the legislation of the EEC member states (Articles 100, 235).

The Single European Act (1987), which amended and supplemented the Treaty of Rome, expanded the competence of the EU in the field of labor law.

Labor Law KChina and Vietnam Labor Code

The development of labor law in China and Vietnam in the 1990s was marked by "socialist modernization" aimed at forming a "socialist market economy".

In both countries, many features of the previously established economic, political and legal system(the predominance of state ownership; the leading role of communist parties; the monopoly position of united trade unions that perform a number of functions characteristic of trade unions in socialist countries; the absence or serious restrictions on the right to strike). But at the same time, in the new labor laws and especially in the new codification acts: the Labor Law of the People's Republic of China (hereinafter LTA) and the Labor Code of the Socialist Republic of Vietnam, adopted almost simultaneously in 1994 and entered into force on January 1, 1995, trends appeared testifying to the desire to form national systems of labor law modern type, corresponding to the universally recognized principles and norms of international labor law, UN and ILO standards1 and taking into account the imperatives of the emerging market economy in these countries.

By the beginning of 1998, China had ratified 18 and Vietnam ratified 12 ILO conventions.

In the structure and content of the new codification acts on labor in China and Vietnam, one can find similarities with the Soviet codes of labor laws. At the same time, socialist components are most present in collective labor law, as well as in separate formulations that reflect the ideology prevailing in these countries (“remuneration according to work”, “labor competition”, “needs of a socialist market economy”, “stimulation of exemplary work”, "participation of workers in social voluntary work").

In the regulation of individual labor relations, borrowing is noticeable Western experience. This is especially true for Vietnam.

In 1986, four Provisional Rules for the regulation of labor relations in the public sector were issued: on labor contracts; about employment; about dismissals in connection with violations of labor discipline; about unemployment insurance.

A continuation of legislative reforms in the 1990s in China was the adoption of the Law on Trade Unions of 1992, the Law on Occupational Safety in Mines of 1992, the Law on Safety and Industrial Sanitation of 1993, and a number of other regulations related to individual labor institutions. law (for example, the Rules for establishing the state minimum wage 1993, the Rules on the procedure for resolving labor disputes 1994).

The Labor Law of 1994 summed up the results of the first stage of labor law reforms and at the same time created the basis for further development labor legislation. Over the next few years, China is expected to adopt a package of new laws to supplement and detail the Labor Law. Among the acts being developed are laws on labor contracts, employment facilitation, labor protection, working conditions, wages, working hours, labor disputes about social insurance.

The Labor Law (LL) of the PRC consists of 107 articles grouped into 13 chapters: general provisions; promotion of employment; labor and collective agreements; working time and rest time; wage; safety precautions and industrial sanitation; special labor protection for women and youth; professional education; social insurance and welfare; labor disputes; supervision and control over compliance with the law; liability for violation of the law; transitional provisions.

Labor Code Vietnam consists of 198 articles grouped into 17 chapters: general provisions; employment; professional education; employment contract; collective agreement; wage; working time and rest time; labor discipline and responsibility of employees for damage caused to the property of the enterprise; safety precautions and industrial sanitation; women's labor; youth labor and the peculiarities of labor regulation of some other categories of workers;

The objectives of labor law are most clearly stated in the Chinese Labor Law: "Protect the legitimate rights and interests of workers, shape labor relations in accordance with the needs of the socialist market economy, promote economic development and social progress."

Employment contract for FDI must be in writing. All FDI employment contracts must be submitted to the labor department of the local government for approval within one month of signing.

The collective agreement must be registered with the local administration. It enters into force if, within 15 days after receipt of this agreement, the local administration does not raise objections to it.

Employment contracts in China and Vietnam are concluded in writing.

In Viet Nam, verbal agreements are allowed for temporary work of less than three months and for domestic work. The legislation of both countries determines the mandatory content of the employment contract.

According to the Labor Code of the People's Republic of China, an employment contract must necessarily fix the following elements: term, content of labor activity; safety and working conditions; wages; labor discipline; termination conditions; responsibility for non-compliance with the terms of the contract. The parties to an employment contract may include provisions regarding the protection of trade secrets.

In the People's Republic of China and Vietnam, employment contracts are concluded for a fixed period (in Vietnam, up to three years), for an indefinite period, and for the period of performance of a specific job. In the PRC, if an employee has worked at a particular enterprise for ten years, having a contract for a fixed period, the enterprise is obliged, at the request of this employee, to conclude an agreement with him for an indefinite period.

In China, employees have the right to terminate an employment contract by notifying the administration in writing 30 days in advance. Employees have the right to terminate the employment contract immediately in the following cases: during the probationary period; if the enterprise forces the employee to work by resorting to violence, intimidation or unlawful restriction of personal freedom; in case of non-payment of wages to the employee and failure to provide him with working conditions in accordance with the employment contract.

Dismissals of employees at the initiative of entrepreneurs are allowed in both countries with a warning (in the PRC - 30 days in advance, in Vietnam - 30-45 days in advance) or without warning and only upon good reasons listed in the law.

The Vietnamese Labor Code states that if an employee is illegally fired, he must be reinstated with compensation for the entire period of forced absenteeism. If the employee does not want to continue working, the employment contract with him can be terminated, but he has the right to receive additional compensation in the amount of half a month's wages for each year of work at this enterprise.

Labor discipline is regulated in particular detail in the Labor Code of the Socialist Republic of Vietnam. The labor schedule is determined by the rules of the internal work schedule. They must be valid at all enterprises with more than 10 employees and cannot contradict the law.

The internal labor regulations should regulate the following issues: working hours and rest breaks; organization of work at the enterprise; occupational safety and health; protection of property, technological and business secrets of enterprises; disciplinary offenses and types of responsibility for them; kinds liability employees for damage to company property.

In Viet Nam, a lunch break of at least 30 minutes has been established. (on night shifts - 45 minutes) is included in working hours and paid. An inter-shift rest break cannot be less than 12 consecutive hours, and a weekly rest break cannot be less than 24 hours. In special cases, when it is not possible to provide an employee with weekly rest breaks, the employer is obliged to provide employees with at least 4 rest days per month. The basic annual paid leave in Vietnam is 12 working days (14-16 working days for hard and harmful conditions labor).

The Vietnamese Labor Code regulates strike action by workers. The decision to strike can be taken by the trade union body, provided that the strike is approved by the majority labor collective by secret ballot. Strikes are prohibited in certain enterprises related to defense complex and to public services, according to the list approved by the government.

Strikes that do not arise from collective labor disputes and go beyond the scope of labor relations, as well as strikes involving employees of more than one enterprise, are recognized as illegal. If a strike poses a serious threat to the national economy or public safety, the head of government may decide to stop or suspend it. Decisions on the recognition of strikes as illegal fall within the competence of the people's court.

In conclusion, I would like to note a peculiarity of the labor legislation of the PRC - the great attention paid to the responsibility of entrepreneurs for violating the labor rights of workers, and the specific nature of this responsibility. Yes, ch. 12 of the Labor Law of the People's Republic of China contains detailed rules (17 articles) on liability for violation of certain provisions of this Law. Provided different kinds liability, including criminal liability.

labor standards orgthe downgrading of the American states

Labor standards of the Organization of American States (OAS) are enshrined in a special Protocol of 1988 to the American Convention on Human Rights of November 22, 1969. The Protocol obliges states to take the necessary measures, taking into account their real capabilities and level economic development for the gradual realization of the following social and labor rights: the right to work; the right to just and satisfactory working conditions; trade union rights; the right to strike; rights and interests of older workers and disabled people.

Labor standards of the Organization of African Unity. The Organization of African Unity (OAU) adopted in 1981 the African Charter on the Rights and Freedoms of Man and Peoples. It enshrined the right to association, the right to fair and favorable conditions labour, the right to equal pay for equal work; forced unionism is prohibited.

A commission has been set up to implement the Charter, which considers complaints about its violations, including individual ones.

Labor standards of the Arab Labor Organization. The Arab Labor Organization (ALO) has existed since 1965 as a specialized institution of the League of Arab Countries and unites 13 states.

AOT adopted Arab Labor Charter (1965), Arab Labor Standards Convention 1966 (revised 1976)

The Organization for Economic Co-operation and Development (OECD) brings together 29 of the most industrialized countries on various continents.

According to the agreement on the formation of the OECD of December 14, 1960, the main task of this Organization is to unite the efforts of various states to achieve the highest possible level of economic growth and employment, to ensure an increase in the living standards of the population of the OECD member states while maintaining financial stability and thus promoting development of the world economy.

The Guidelines are addressed to multinational enterprises (transnational corporations) operating in OECD member countries and to relevant governments. However, this act already has practical value for our country, given the ever-increasing number of foreign enterprises - branches of TNCs operating in the territory of the Russian Federation.

The special chapter "Employment and industrial relations" establishes rules relating to labor and industrial relations. According to these rules, transnational corporations (TNCs) are required to fulfill the following obligations within the framework of the law, regulations and prevailing practice in the field.

Conclusion

This work gives a general description of labor law in the EU, Asia and the American states.

It can be concluded that, in general, the labor law of these countries is largely similar and has the same legal framework.

However, each country has its own characteristics that should be taken into account when applying for a job in a foreign organization.

I would also like to note that, thanks to the material studied, it is possible to compare labor law with Russian law and draw parallels.

Literature

1. Kiselev I.Ya. Foreign labor law// Textbook for universities. - M: Publishing group NORMA-INFRA. M, 1998. - 263s.

2. International protection of human rights and freedoms: Sat. documents. M., 1990

3. social rights rights: Documents and materials of the Council of Europe. Ch. I and II. M., 1996

5. Program "Consultant plus" http://www.consultant.ru

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Introduction

The uniqueness of the history of labor law in Russia lies in the fact that during the 19th and 20th centuries the type of legal regulation of labor changed several times. Here we can distinguish four stages in the development of domestic labor law, one of which is divided into several periods.

I. Stage One Factory Legislation (1861 1917)

II. Stage Two Legislation of the Revolutionary Period (1917)

III. Stage three Soviet legislation (November 1917 1991)

IV. Stage Four Transition to a market economy (from 1991 to the present)

Of particular interest for the purposes of this study is the fourth stage in the development of labor relations, here it should be noted that after the adoption of the Declaration on State Sovereignty of the RSFSR (June 12, 1990) and the collapse of the USSR, a course was taken towards the formation of a market-type economy.

Considering the main points of the formation and development of the labor legislation of the transitional period, it is possible to note that the end of XX, -beginning of XXI centuries marked by a surge in legislative activity due to the steady and growing importance of the principles of democracy in the world and Russian legal theory and practice, and the reform of labor legislation began to be carried out through the adoption of separate federal laws"On Collective Labor Contracts and Agreements" (1992) with subsequent amendments and additions; "On the procedure for resolving collective labor disputes" (1995); “On trade unions, their rights and guarantees of activity” (1996); "On the basics of labor protection in the Russian Federation" (1999), etc.

The purpose of this work is to study the historical aspects of the right to work in the Russian Federation and in foreign countries.

Chapter 1. History of labor law in Russia

The modern process of updating labor legislation in our country includes the development new concept labor law, taking into account ongoing changes in the economy. In turn, an understanding of the present is hardly possible in isolation from the already existing historical experience of state-legal regulation of relations in the sphere of labor in Russia before 1917, i.e. in the conditions of the existence of a variety of forms of ownership. A comparative analysis of the normative provisions of the past era and the present allows us to show both advantages and disadvantages modern development labor legislation, primarily in connection with the adoption of the Labor Code of the Russian Federation.

The first attempts to regulate the relationship between an employee and an employer in Rus' appear already in the 11th-12th centuries, while sections in laws and special acts on labor begin to appear in the 17th 18th centuries. It was during this period that the first large textile manufactories, iron-smelting, iron-making factories and plants operated. As M.F. Zlotnikov, from the 30s of the XVII century. the construction of mining plants begins in the interior regions of Russia. 1

The emergence of factory legislation was facilitated by the construction of factories and factories in the Urals and the Kama region, mainly the Izhevsk and Votkinsk plants, which were also called Kama plants. In other words, economic prerequisites are being created for the legal regulation of relations in the sphere of labor.

The researched G.I. Mankovsky periodization of mining in Russia, proposed by A.F. Deryabin (1770-1820), the beginning of which dates back to 1550, when mining Various parts of the Ambassadorial Order, the Order of the Great Treasury, the Armory, the Cannon Yard were engaged in, and in 1660 the management of mining was entrusted to the Order of the Grand Palace. Until 1700, there were no local mining authorities in the Urals, and therefore the one who found the ore deposits built the mine and managed it, and the dependence was mainly on the governors. After the establishment in 1700 of the Mining Order, almost nothing changed in the localities, and only from 1719, when the Berg Collegium was established and several factories were built, did they begin to think about their local management. Thus, at the earliest stage of formation of large industrial enterprises in Russia there is no state intervention in labor relations. 2

To regulate the internal life of industrial enterprises and, in particular, working conditions, there was not enough reason, just because before the beginning of the 19th century. more than half of the workers were serfs. One can only partly agree with this statement, since the absence of a wide use of free hired labor did not exclude the use of “cheap” serf labor, which was quite effective for that time. It was thanks to the use of "forced labor" that it became possible to build private factories and factories along with state-owned ones. During the period from 1733 to 1743, 11 private enterprises were built, from 1743 to 1753, 27 factories already appeared, and from 1753 to 1763, 68 factories. Thus, the use of serf labor, financial and legal support from the state at that time rather contributed to the rapid pace of construction of large industrial enterprises, since free employment involved much more significant monetary costs.

According to V.A. Posse, the appearance of the law of 1785, which limited the duration of the work of artisans to 10 hours a day, established Sunday and holiday rest for them, was the first hint of labor legislation in Russia, although the Charter on Factory and Factory Industry can act as a kind of starting point. Over time, the name has changed somewhat with a significant update in the content of legal provisions. The existence of serf labor did not exclude the use of free employment. So, according to Art. 100 (the first edition refers to March 29, 1762) of the Charter on the Factory and Factory Industry, it was possible to hire free people, both from Russian citizens and from foreigners, to send work to factories in the factory industry. 3

Among modern legal scholars there is no unity in understanding from what time special labor laws begin to take shape. According to R.Z. Livshits, in Russia the Laws of 1882 and 1885 belong to the first acts on labor. on the work of minors and women in textile enterprises and the Law of 1886 on the activities of the factory labor inspection. A somewhat different position is taken by E.B. Khokhlov, who covers the history of the legal regulation of labor in Russia from the 9th-11th to the 19th centuries, but the formation of factory legislation Russian Empire refers to the second half of the 19th century. In turn, I.Ya. Kiselev, most likely relying on the work of L.S. Tal, the characterization of factory legislation begins with the Regulations of May 24, 1835 on the relationship between the owners of factory establishments and working people entering these for hire. A compromise position is defended by A.M. Lushnikov. According to this scientist, most researchers date the first factory law to 1835, but only the abolition of serfdom made free labor mass, and A.M. Lushnikov names the Law of June 1, 1882. How wide the palette of judgments is, the point of view of E.M. Akopova, according to which legislation specifically regulating labor relations began to take shape in Russia in the 18th and first half of the 19th centuries. 4

Thus, the time span of understanding the history of the formation of legislation in Russia sometimes reaches 100 years. And this is not the limit, if we understand the term "factory labor legislation" not only laws as such, but also other sources of legal regulation of labor.

Comparative analysis of the history of the factory legislation of the Russian Empire and labor legislation modern Russia shows that despite all the differences, there are a number of common features of a fundamental nature. Let us turn to the work of I.Ya. Kiselev, according to whom the acts on the employment of workers were initially scattered in various parts of the Code, in various charters, mainly in the Charter on Industry, the Mining Charter, the Charter of Communications, and also in the Regulations on Employment for Rural Work. In turn, in the edition of the Code of 1913, the legal provisions relating to the regulation of the labor of workers in industry, including mining, were separated from various charters and combined into a separate act, called the Charter on Industrial Labor. This Charter, notes I.Ya. Kiselev, is a specialized act of incorporation, in which the laws that made it up underwent a certain, very minimal processing and editing. For comparison, the Labor Code of the Russian Federation, which entered into force on February 1, 2002, is a codified act. According to Art. 5 of the Labor Code of the Russian Federation, in cases where a newly adopted federal law contradicts the Labor Code of the Russian Federation, this federal law is applied only if appropriate amendments and additions are made to the Labor Code of the Russian Federation. 5

Russian codification of the XXI century. does not resemble any of the previously existing when the Labor Code of 1918, 1922, 1971 was adopted. At the same time, it is impossible not to see a rather rapid convergence of the institution of an employment contract with civil law contracts, which hardly fits into the concept of labor law that developed after 1917. Having somewhat changed the statement of L.S. Tal from the beginning of the last century, it can be applied to modern Russia, when, with the adoption of the new Labor Code of the Russian Federation, we will still have the sad results of the system of contractual freedom in the field of labor law, which “legitimized” the actual inequality of the parties to the employment relationship, primarily the unlimited power of the employer (owner owner of the organization).

Various historical periods, with which scientists associate the emergence of labor or industrial law, can be explained by ignoring the coverage of the formation of the actual factory and factory industry in our country. Recently, one can note the ever-increasing interest of scientists in rethinking the factory legislation of Russia before 1917 from the position modern science labor law, which emerged in the 90s of the twentieth century. 6

When studying historical acts on labor, one should pay attention to another rather significant problem, which receives only partial resolution in modern research by scientists. When labor acts are cited as one of the first in the formation of Russian labor legislation, their systemic inclusion in various Charters and Regulations is sometimes overlooked. The volume of the Mining Charter, which in the 1857 edition contained 2653 articles, is also impressive. Along with the Charter of the Mining, it is necessary to note the Charter on the Factory and Factory Industry, which in the edition of the Code of Laws of the Russian Empire in 1857 was also called the Code of Decrees on the Factory and Factory Industry. In the edition of the Code of 1887, the name and content are somewhat changed, and this act is already called the Charter of Industry, and only at the beginning of the 20th century. it became known as the Charter of Industrial Labor.

Modern research is mainly reduced to the coverage of the Charter on industrial labor in the edition of 1913, which significantly impoverishes the history of the formation of this most important act on labor in Russia. A somewhat different approach can be noted from E.M. Akopova, who believes that on the basis of the adopted laws in 1893, the Charter on Industry was created, which regulated in detail the hiring of workers in factories, factories and manufactories. However, there is no general description of the Charter. 7

It should be recognized that the coverage of the Charter is sometimes descriptive and given in isolation from civil legislation, an integral part of which at that time was a personal employment contract. In this sense, the work of L.V. Sannikova, who studied the history of the development of legislation on hiring labor from the standpoint of the science of both labor and civil law. One can argue and disagree with the individual conclusions of this scientist, but one should support her in the fact that there is a clear underestimation of foreign scientists of the level of development of Russian law. In full, this reproach can also be addressed to domestic scientists, since in the general mass of its educational literature on labor law, the history of labor law, at best, is associated with the adoption of the Labor Codes of 1918, 1922, 1971. 8

There is no need to deny that in Russia until 1917 the general provisions of personal hiring were enshrined in civil law and later became the subject of study of the science of civil law. But no less important role in the development of labor law was played by administrative and state law.

As E.B. Khokhlov, labor law arose as a special branch as a result of two counter processes: on the one hand, this is the process of separating and separating an employment contract as a completely specific private law transaction from civil law regulation, on the other hand, it is separating it as a special subject of legal regulation on the part of the state (both by means of normative and administrative regulation) of the relationship between labor and capital from the sphere of administrative (police) law. 9

Before the adoption of the Labor Code of the Russian Federation, which meets the needs of practice, there was a problem of intrusion of various branches of law into the regulation of labor relations. The work of state and municipal employees began to be regulated by special federal laws (for example, “On the Fundamentals of the Civil Service of the Russian Federation” of 1995 and “On the Fundamentals of Municipal Service in the Russian Federation” of 1998), which extended the effect of labor legislation with special features to these employees provided by these laws.

Thus, the adoption of the new Labor Code of the Russian Federation necessitates a more accurate, detailed, in-depth study and study of the problems that arise in the process of applying specific rules of law that regulate the specifics of the work of certain categories of workers, conflict issues that arise in practice, contradictions that take place in a huge array legal documents not only in the field of labor, but also in other branches of law

Chapter 2. History of labor law in foreign countries

From the methods of regulation inherent in labor law, it follows that the prevailing place among its sources is occupied by laws and collective agreements. The ratio between them largely depends on the national specifics of labor law. If in the countries of continental Europe (France, Germany, Italy, Belgium) traditionally the leading role was played by legislation, then in the UK until the 60s, and in the USA until the 30s of the 20th century, collective agreements prevailed among the sources of labor law.

In recent decades, there has been an increase in the role of labor legislation in the Anglo-Saxon countries and collective agreements in most European continental countries. In some, such as France, the role of collective agreements has moved closer to labor law, and in Denmark and Switzerland, the role of collective agreements has taken precedence over that of labor law. The situation is specific in the Scandinavian countries, where collective agreements play an important role (especially the main agreements between national organizations of trade unions and employers), but in most of them there is a developed labor legislation.

The general historical trend in the development of two methods of legal regulation of labor relations, as follows from the data presented, is as follows: in those countries where collective agreements traditionally prevailed, labor legislation began to actively develop, which in some areas supplanted collective agreements. And where previously labor legislation prevailed, collective-contractual regulation of labor has become significantly more active. 10

Another feature: not only a certain ratio, combination, but also a close interweaving of laws and collective agreements. It has reached such a degree that in some countries (France, Italy, the Federal Republic of Germany) laws are in some cases reproduced almost without changing the provisions of collective agreements; Collective agreements are used as acts of application of laws. Often, this or that innovation is initially fixed in collective agreements, and then becomes universal in a legislative act (the so-called contract law).

The trend towards convergence of legislation and collective agreements is evidenced by the conclusion of tripartite agreements with the participation of the state, entrepreneurs and trade unions. Such agreements usually formalize nationwide political decisions of a global nature, in particular in the field of wages, hours of work, employment.

In most Western countries, constitutions either do not contain norms directly related to labor at all (for example, in the USA), or include only separate norms of this kind (in Germany, Denmark, Norway). At the same time, in the constitutions adopted after the Second World War on the crest of a revolutionary upsurge and influenced by the ideological positions of the labor and trade union movement, there is a wide range of socio-economic rights, including in the field of labor (for example, in Italy, France, Spain, Portugal ). Germany and Spain are declared in their constitutions to be welfare states. 11

It should be noted the important role of the executive bodies of the state in law-establishing and law enforcement activities in the field of labor, as well as the presence in this area in some countries (France, Italy) of delegated legislation, i.e. acts having the force of law adopted by the executive authorities (president, government) on behalf of Parliament. At the same time, the role of parliaments in issuing the most important acts of labor legislation is very significant, and the number of labor laws in most countries is large and tends to grow.

At present, the only country where the main source of labor law belongs to compulsory decisions of arbitration bodies is Australia. In other countries, the role of decisions of arbitration bodies is insignificant.

The role of labor customs and internal labor regulations has decreased everywhere, and at the same time the importance of ratified international labor conventions has increased. In some countries they take precedence over domestic legislation.

An employment contract is considered as a source of labor law in those countries (for example, in Denmark) where labor legislation plays a relatively small role, and many aspects of labor relations and working conditions are established by agreement of the parties to labor contracts, including in individual labor contracts. 12

The role of the courts is especially great in the Anglo-Saxon countries, where judicial precedent is the most important source of labor law (and law in general), as well as in Germany, where the decisions of the Federal Labor Court significantly supplement insufficiently precisely and completely formulated legislative norms, especially in the field of collective labor relations. Significant role judicial practice in France, Sweden, the Netherlands.

As a rule, laws and other acts of state bodies are considered as priority sources of labor law. They establish an inviolable minimum of labor rights.

Labor agreements (collective agreements, individual labor agreements), according to the traditional, generally accepted interpretation, cannot worsen the position of an employee in comparison with the law, but they can improve it. This principle applies not only to the correlation of labor contracts with legislation. It has a universal meaning and operates in determining the relationship of all sources of labor law. Any normative act that is at a lower level in the hierarchy of sources of labor law can, as a rule, only improve the position of an employee in comparison with normative acts of a higher rank. 13

With regard to the application of labor law in time, the principle “the law does not have retroactive effect” usually applies. Thus, adopted law acts on the future. Employment and collective agreements are subject to the laws that were in force at the time of the conclusion of these agreements. Only laws of an explanatory nature and certain acts relating to the protection of public order, which apply to labor contracts concluded before the adoption of these acts, have retroactive effect.

A feature of the form of labor law is the lack of codes of labor laws in most Western countries. An exception is France, where even before the Second World War (in 19101927), a commission of experts systematized labor legislation relating only to private enterprises, on the basis of which the Labor Code was created and approved by Parliament. True, the term "code" in this case is not accurate. It is not codification in the traditional sense, but rather the incorporation and partial consolidation of legislation. It has not undergone any significant changes and processing; only collection, compilation and grouping by certain system normative material scattered over numerous legal acts, and by no means all of it.

In 1973, on the same basis, a new codification of labor legislation was carried out. It is envisaged that the necessary corrections and additions will be made to the Code annually. The new form of the Labor Code has the following structure. It is divided into three main parts: 1) laws, i.e. acts of parliament; 2) decisions adopted by the government, taking into account the opinion State Council; 3) simple decrees adopted by the government.

Laws define the fundamental principles of labor law. Ordinances are acts of application of laws that supplement them. Decrees clarify and detail the provisions contained in the named acts.

Each part of the Labor Code consists of nine books: labor contracts, labor regulation; employment and employment;
professional associations, representation, participation in the management of employees, forms of their interest in the activities of enterprises; labor conflicts; control over the application of labor legislation; special provisions relating to individual professions; special provisions relating to overseas departments; professional education. The book is divided into titles, chapters and articles. At the end of most books there is a special title containing rules on liability for violation of labor standards. 14

In Canada, since 1972, the federal Labor Code has been in force, which applies to enterprises of federal significance, that is, those that are within the scope of federal laws. The Code is a consolidation of labor legislation.

New Zealand passed the Labor Contracts Act 1991, which partially codified labor laws. The main sections of this vast piece of legislation are codified: freedom of association, collective agreement and individual labor contract, individual labor disputes, strikes and lockouts, employment court activities.

In countries such as the United States, Great Britain, Italy, Japan, Belgium, and the Netherlands, the issue of codifying labor legislation was not raised at all, either in theory or in practice, and in Germany, an attempt to create a labor code was unsuccessful.

So, in Western countries, the codification of labor legislation, as a rule, has not been implemented. The absence of such codification enhances the flexibility and lability of labor law, its dynamism and responsiveness to the needs and requirements of production, which is in the interests of economic profitability, greater efficiency of entrepreneurship, but at the same time weakens the security employees, complicates the perception of labor legislation, makes it difficult for individual workers who are unfamiliar with the intricacies of jurisprudence to apply labor standards in their own interests and in their favor.

The codification of labor legislation is a traditional requirement of trade unions and left-wing political parties. But it has not been fully implemented in the West. At the same time, most recently (90s), some countries (Great Britain, Ireland) adopted consolidated acts of parliament that systematized the basic laws that make up collective labor law. For example, in the UK in 1992, the Consolidated Law on Trade Unions and Labor Relations was adopted - an act of a codification type, which is a systematization of the norms related to trade unions, employers' organizations, collective agreements, strikes, administrative institutions operating in the field of collective labor relations. In 1996, another consolidated act was adopted The Law on Labor Rights. In 1980, a partial codification of labor legislation was carried out in Spain.

Thus, in some countries there are tendencies towards partial codification of labor legislation, mostly in the form of consolidated acts.

Conclusion

Recently, the historical method has been especially actively used in the science of labor law in Russia, but at the same time, the conclusions of scientists do not coincide on a number of issues. In addition, the coverage of historical experience occurs, as a rule, without regard to the present. The time span of understanding the history of the formation of legislation in Russia sometimes reaches 100 years. And this is not the limit, if we understand the term "factory labor legislation" not only laws as such, but also other sources of legal regulation of labor.

A comparative analysis of the history of the factory legislation of the Russian Empire and the labor legislation of modern Russia shows that, despite all the differences, there are a number of common features of a fundamental nature. The adoption of the new Labor Code of the Russian Federation necessitates a more accurate, detailed, in-depth study and study of problems that arise in the process of applying specific rules of law that regulate the characteristics of the work of certain categories of workers, conflict issues that arise in practice, contradictions that occur in a huge array of legal documents. only in the field of labor, but also in other branches of law.

The study of labor relations in industrial developed countries Europe, Asia, the USA shows their lack of labor codes, with enough high level social and labor guarantees to citizens in the sphere of labor. Time-tested achievements of foreign countries and no less valuable own historical experience will allow us to develop the most optimal legal mechanism in regulating relations in the sphere of labor between an employee (a team of workers), an employer (associations of employers), the state, and civil society in our country.

List of used literature

Akopova E.M. Legal mediation of employment relations in Russia // State and Law. 2014. No. 9. P.23-36.
Geyts I.V. Labor and social guarantees, benefits, compensations. M.: NORMA, 2013. - 256s.
Zhdanova A. Employment contract at the present stage of development of labor relations. // Lawyer. 2015. No. 7. P.40-53.
Kiselev I.Ya. Comparative and international labor law. M.: NORMA, 2013. 263p.
Kiselev I.Ya. Labor law of Russia. Historical and legal research. M.: UNITI, 2015. 310p.
Lushnikov A.M. Formation and development of the science of labor law and science of law social security in Russia (second half of the 19th beginning of the 20th century). Yaroslavl: Volga, 2015. 84p.
Sannikova L.V. Employment contract in Russia. M.: Yurist, 2015. 124p.
Sokolova L.A. Labor disputes and the procedure for their resolution. M.: MSU, 2014. - 132p.
Labor law of Russia. / Ed. R.Z. Livshits. - M.: Zertsalo, 2014. 452p.
Khokhlov E.B. Essays on the history of legal regulation of labor in Russia. Part 1. Legal regulation of labor in the Russian Empire. St. Petersburg: Lan, 2015. 240p.

1 Labor law of Russia. / Ed. R.Z. Livshits. - M., 2014. P.14

2 Labor law of Russia. / Ed. R.Z. Livshits. - M., 2014. P.18.

3 Lushnikov A.M. Formation and development of the science of labor law and the science of social security law in Russia (second half of the 19th beginning of the 20th century). Yaroslavl, 2015. P.34.

4 Lushnikov A.M. Formation and development of the science of labor law and the science of social security law in Russia (second half of the 19th beginning of the 20th century). Yaroslavl, 2015. P.36.

5 Kiselev I.Ya. Labor law of Russia. Historical and legal research. M., 2015. P.103.

6 Sokolova L.A. Labor disputes and the procedure for their resolution. M., 2014. P.76.

7 Akopova E.M. Legal mediation of employment relations in Russia // State and Law. 2014. No. 9. P.27.

8 Sannikova L.V. Employment contract in Russia. M., 2015. P.89.

9 Khokhlov E.B. Essays on the history of legal regulation of labor in Russia. SPb., 2015. P.178.

10 Kiselev I.Ya. Comparative and international labor law. M., 2013. P.16.

11 Kiselev I.Ya. Comparative and international labor law. M., 2013. P.18.

12 Zhdanova A. Employment contract at the present stage of development of labor relations. // Lawyer. 2015. No. 7. P.41.

13 Zhdanova A. Employment contract at the present stage of development of labor relations. // Lawyer. 2015. No. 7. P.43.

14 Kiselev I.Ya. Comparative and international labor law. M., 2013. P.19.

In some Western countries, national systems of labor law have been formed (England, France, Germany, USA), which have become models for many other countries. The theory of labor law, its conceptual base, that is, theoretical concepts and constructions related to the legal regulation of labor, was born and actively developed and is developing there.

Currently, labor law in the West is undergoing major changes: its regulatory framework is being updated and enriched; the angle of analysis, accents are shifted; there are new directions of legal regulation; the structure, the ratio of various institutions and sub-institutions are being modified, traditional concepts and constructions are being rethought. All this is the result of the ongoing radical changes in the social environment in these countries, which have already entered or are gradually entering the post-capitalist (post-industrial) era.

Within this type of labor law, subtypes (families) or varieties of labor law can be distinguished.

Family of labor law of the countries of continental Europe;

Anglo-Saxon family of labor law;

Australian variety of labor law;

Japanese version of labor law;

Israeli version of labor law;

Emerging labor law of the united Europe (supranational labor law of the European Union).

The labor law of continental Europe includes most Western European countries (with the exception of the UK). Within this family, smaller groups (subfamilies) can be distinguished:

Romanesque subfamily (France, Italy, Belgium, Luxembourg);

Germanic subfamily (Germany, Austria, Switzerland, Netherlands);

Scandinavian subfamily (Sweden, Finland, Norway, Denmark).

The labor law of the countries of continental Europe is distinguished by a significant role of legislation and a developed system of collective bargaining regulation on a national and sectoral scale and within enterprises. Laws and collective agreements constitute the main sources of labor law. Although the role of jurisprudence in individual countries is quite large, it is not generally considered a source of labor law, and court decisions in specific cases do not have the force of precedents. Trade unions enjoy rights nationwide and in enterprises, and this is usually set out in legislation. Organizations have bodies representing labor collectives, whose powers are in most cases defined in legislation, which also establishes certain forms of participation of workers and trade unions in the activities of private corporations or only nationalized economic complexes. Most aspects of an employment contract are regulated by law. In particular, legislation places significant limits on employers' discretion in hiring and firing workers.

Legislation fixes the minimum standards of working conditions, but does not, as a rule, define a detailed procedure for establishing normative provisions in collective agreements. The collective bargaining procedure is largely regulated by the agreement of the parties.

The Anglo-Saxon family of labor law is characterized by the significant role of collective agreements in regulating the most important aspects of labor relations, working conditions, the special role of the courts, whose decisions in specific cases have the force of precedents. The role of legislation is also great, but mainly in such areas as the position of trade unions, the regulation of strikes, the procedure for collective labor regulation.

Legislation establishes not so much minimum labor standards as the procedure for the relationship of the parties to collective agreements, the procedure for the formation of labor standards by them. To implement this procedure, special administrative and judicial bodies are created. Collective bargaining agreements are the main instruments for regulating such issues as working hours, holidays, labor discipline. In the regulation of the employment contract, the role of judicial practice is significant ( common law), which applies, on a casuistic basis, specific criteria (degree of subordination, controllability, integration of an employee in an enterprise), according to which an employment contract differs from civil law contracts (contracts, assignments). Entrepreneurial powers to terminate an employment contract, as a rule, are wider than in the labor law of European continental countries.

The legislation does not provide for the formation within the framework of the employer's organization of bodies of representation of labor collectives, any institutional forms of participation of workers and trade unions in the management of corporations; such participation is carried out mainly through collective agreements and the activities of trade unions. The position of trade unions in enterprises is mostly determined in collective agreements. This is especially true for the US and Canada, and to a lesser extent for the UK, where these issues are partially regulated by law.

The main feature of Australian labor law is the decisive role of compulsory arbitration in establishing minimum conditions labor and in the resolution of labor conflicts. At the same time, in a number of respects (for example, the operation of common law of English origin, the widespread use of the collective bargaining method), Australian labor law is close to Anglo-Saxon.

With regard to Japanese labor law, although Japanese labor law has significant similarities with US law, Japanese labor law cannot be classified as an Anglo-Saxon family primarily because legislation plays a decisive role in it, and collective agreements and common law are less important than in Anglo-Saxon labor law. Unlike the last decision of the courts in specific cases are not precedents in Japan. Specific to Japanese labor law is the special role of labor relations commissions, consisting of an equal number of representatives of employers, workers and government officials, appointed by the Minister of Labor. These commissions have a serious impact on the establishment and application of labor standards, on the resolution of labor disputes.

The Israeli variety of labor law combines features of the Anglo-Saxon (mainly British labor law) and continental European families of labor law. The features of Israel include traditionally significant influence on the development of labor law trade union association Histadrut and the role of labor courts, primarily decisions of the National Labor Court. The Israeli labor courts have formed a system of "common law" within their area of competence, ensured the unity of interpretation and application of labor laws, and clarified many issues of legal regulation of labor.

In relation to countries that are members of the European Union (EU), not only national labor law applies, but also the relatively numerous and diverse rules adopted at the EU level by its bodies. These rules are part of the autonomous legal order of the European Union, a kind of emerging European labor law. In general, in regulations The EU contains a rather impressive array of labor standards. In terms of their content and legal characteristics, they approach the acts of the federal authorities in a federal state, in which the central authorities offer the subjects of the federation the samples necessary for normal functioning. common market labor, which is impossible without a certain degree of convergence, harmonization and even unification of labor legislation. At the same time, it is also a set of minimum social standards, the deterioration of which is considered unacceptable in national labor legislation. Thus, the basis for the formation of supranational European labor law has been created, which reflects the gradual transformation of the European Union into an organization of a federal type and the emergence of such a new legal formation as European law, in the system of which social and labor law has occupied an important place.

In many countries, there is no official systematization of labor legislation, and labor legislation is a collection of various laws that are not summarized in any single act (code). This is typical for almost all countries of a developed market economy, except for France and Canada (in the latter - in relation to federal labor legislation). Of the former socialist countries, Estonia refused to codify labor legislation. Many developing countries in Asia and Africa do not have labor codes.

A feature of the form of labor law is the lack of codes of labor laws in most Western countries.

The exception is France, where even before the Second World War (in 1910 - 1927), a commission of experts systematized labor legislation relating only to private enterprises, on the basis of which the Labor Code (Code du travail) was created and approved by Parliament. True, this is not codification in the traditional sense, but rather the incorporation and partial consolidation of legislation. It has not undergone any significant changes and processing; only the collection, compilation and grouping according to a certain system of normative material scattered over numerous legal acts was carried out, and by no means all of it.

In 1973, on the same basis, a new codification of labor legislation was carried out. It is envisaged that the necessary corrections and additions will be made to the Code annually. The new form of the Labor Code has the following structure. It is divided into three main parts: 1) laws, i.e. acts of parliament; 2) resolutions adopted by the government, taking into account the opinion of the Council of State; 3) simple decrees adopted by the government.

As an appendix, some legal acts that remained outside the codification, as well as the texts of the ILO conventions ratified by France, are given.

While stating the absence of nationwide comprehensive labor codes in these countries, it should be noted that some of the Western countries have taken the path of partial consolidation of labor legislation, i.e., the creation of a kind of “mini-codes” for individual institutions or for a combination of institutions.

For example, in Great Britain - the consolidated law on trade unions and labor relations of 1992; Employment Rights Act 1996; in Italy, the 1970 Workers' Rights Statute; in Spain, the Workers' Rights Statute of 1980; in New Zealand, the Labor Relations Act 2000; in Ireland, the Industrial Relations Act 1990

In some Western countries, there are specialized labor codes, that is, codified acts relating to certain categories of workers (for example, the Industrial Charter in Germany, the Code of Labor for Merchant Marines in France).

The lack of comprehensive labor codes in many countries is not accidental and reflects the prevailing opposition in these countries to the codification of labor laws. Entrepreneurial and government circles, as well as a part of legal professionals, are especially actively opposed to it. It is argued that the codification of labor legislation makes it too rigid, clumsy, incapable of taking into account the diversity and movement of life, the requirements of a changeable market conditions, globalizing economy.

Usually in this connection the English legal dictum "codified law is tough law" is referred to. It is believed that the lack of a comprehensive codification of labor legislation enhances its lability, dynamism, response to the needs and requirements of developing production. And this is in the interests of economic profitability, greater efficiency of entrepreneurship. It is argued that poorly thought-out and populist-oriented labor law codification can exacerbate economic hardship, especially in countries experiencing a decline in production or its stagnation. In this case, the codification of labor legislation may be counterproductive.

The main advocates and fighters for the codification of labor legislation are the trade unions and the political left. They believe and argue, not without reason, that the absence of labor codes weakens the protection of employees, complicates the perception of labor legislation by their main users - employees, and makes it difficult for employees who are not familiar with the intricacies of jurisprudence to apply labor standards in their own interests. Finally, the development and adoption of labor codes provide an opportunity to draw the attention of the general public to the needs and problems of wage labor, strengthen the position of the left in the political struggle, attract the sympathy of voters to their side and create certain guarantees of the irreversibility of the social gains of the working masses.

The demand for codification of labor legislation, which strengthens the autonomy of labor law, reflects, among other things, the desire to free the labor relationship from the “fetters of private law”.

Currently, more than 60 countries of the world have labor codes. These are former socialist countries (except Estonia), Latin American countries and many developing countries in Asia and Africa.

Although the structure and content of the labor codes of most countries are similar or close, the codes differ significantly in scope. On this basis, three categories of codes can be distinguished: codes-encyclopedias (“maxi-codes”), a kind of acts of incorporation, codes-constitutions (“mini-codes”) and “midi-codes”, the volume of which is larger than the “mini-codes” , but fewer "maxi-codes".

Of the existing codes, the French labor code belongs to the “maxi codes” (the total volume with applications is 2136 articles). The Labor Code of Vietnam (198 articles) can be considered a "mini-code", the Labor Code of Belarus (468 articles) - a "midi-code".

As for the mechanism for ensuring the implementation of normative acts containing labor law norms, two models can be distinguished here. One of them focuses on the formation of specialized administrative bodies designed to ensure the implementation of labor law. The second model ensures the implementation of regulations mainly by establishing liability for their violation.

The first model is characteristic of the Anglo-Saxon countries.

Most American federal labor laws provide for the creation of specialized administrative bodies designed to monitor the implementation of labor laws, interpret them, consider complaints of their violation, that is, to exercise quasi-judicial functions. These bodies are formed by the President of the United States on the advice and consent of the Senate. Some laws are enforced by the US Department of Labor. The court gives binding effect to the decisions of these bodies and has the right to review them, although questions of facts confirmed by evidence and recorded in the decisions of administrative bodies are not subject to judicial review. Entrepreneurs are prohibited from punishing or dismissing employees who have applied to these bodies with complaints about the violation of their rights. If they are dismissed for such complaints, they are subject to mandatory reinstatement with payment of wages for the entire period of forced absenteeism.

In the UK, the implementation of many labor law provisions is carried out through a system of administrative bodies, most of which operate on a tripartite basis: this is the Conciliation and Arbitration Advisory Service. Central Arbitration Commission, Commission for labor resources, Equal Employment Opportunity Commission, Racial Equality Commission. The specifics of the UK is that the functions that are carried out in other countries by the ministries of labor, in the UK are performed by tripartite bodies of an autonomous nature, relatively independent of the state administration.

It should also be noted that in the Anglo-Saxon countries, court orders, which can be promptly obtained by both entrepreneurs and individual workers and trade unions, are a tool for the quick and unconditional implementation of the norms and regulations of labor law.

The second model is typical for the labor law of Western Europe, China, Vietnam, some developing countries, as well as countries of Central and Eastern Europe.

French labor law contains a significant number of legal provisions providing for liability (financial, administrative and criminal) for violations of labor law provisions, in particular concerning the rights of workers and trade unions. In the French Labor Code, most books include a title consisting entirely of rules on liability for violation of the articles of the relevant book. In Spain, there is a special law on liability for offenses in labor relations.

In China, Chapter 12 of the Labor Law contains 17 articles on liability for violation of certain provisions of this Law. There are various types of liability, including criminal penalties. It threatens, in particular, entrepreneurs who force workers to work through violence, threats, and illegal restrictions on personal freedom.

The Iranian Labor Code has a special chapter that establishes liability for violation of specific articles of the Code. For example, for violating the prohibition of forced labor, the perpetrator faces imprisonment for a period of 91 days to one year and a fine of 50 to 200 minimum dimensions daily wage. In addition to toi o, the person guilty of the use of forced labor is obliged to fairly pay for this labor and pay compensation to the worker for the damage caused to him. An entrepreneur who obstructs the activities of a labor inspector is sentenced to a fine of 100 to 300 times the minimum daily wage, and in case of a repeated violation, is sentenced to imprisonment for a term of 91 to 120 days.

Special attention should be paid to the issue of labor relations as a type of social connection arising as a result of the impact of labor law norms on relations on the use of hired labor. A full consideration of this question is beyond the scope of this book. Here we will touch exclusively on certain points, which are of fundamental importance for characterizing the labor law of Western countries as a whole. This is a question about the content (structure) of the labor relationship, its aspects and the impact on the labor relationship of the appearance on the labor market of many countries of foreign enterprises - branches of foreign transnational corporations. In the West, it is generally accepted that the labor relationship is an organic unity of three types of legal relations: individual, collective and organizational. A collective labor relationship arises in connection with the functioning in the labor market and in the production of trade unions, which conclude on behalf of workers collective

"See - Lord Wcddcrbum. The worker and the law. London, 1986. P. 93, 858, Lcdcrman Ch. Faut-il brdler le Code du travail7 // La pensce. 1987. No. 2(50. P. 16- 18.

Chapter 1. General characteristics of the branch of labor law

bargaining agreements with entrepreneurs or their unions (organizations) on the conditions for the sale of the labor force of hired peak jobs (their groups, categories) or enter into other relations with entrepreneurs (their organizations) Finally, organizational labor relations arise in connection with the intervention of the state in activities of trade unions and its desire to control this activity (registration of the trade union in a state body, the obligation of the trade union to report to the state, etc.) or state activities for mediation in employment. Turning to the question of the parties to collective, individual and organizational labor relations, it should be emphasized that these parties do not coincide in different types of legal relations. The parties to a collective labor legal relationship are trade unions or sometimes other organizations of the working class, for example, the labor collective bodies of an enterprise, and entrepreneurs (organizations of entrepreneurs). These are relations to establish working conditions, consider labor disputes, labor protection, and vocational training. An organizational labor relationship arises, for example, between a trade union and a state body in connection with the registration of a trade union, the establishment of its responsibility to the state, or between an employee (enterprise) and an employment agency that carries out labor mediation, or between the parties to an employment relationship and the state that has established a growth limit wages under the "income policy". Let us study in more detail the question of the parties to the individual labor relationship. As already noted, they are the hired worker and the employer (entrepreneur)". Entrepreneur - ϶ᴛᴏ "a capitalist who invests capital in production, takes on the work of supreme supervision and management, sometimes himself realizes the labor of exploiting hired workers and directly receives the work created by them surplus value. In other words, the entrepreneur is a functioning capitalist "2. From this definition it follows that the owner of the capital will be the party to the individual labor relationship.

""Employer" is a term used in Germany and in a number of other countries, "entrepreneur" is a term used mainly in Anglo-Saxon countries, as well as in conventions and other acts of the ILO. Note that in recent years in acts and documents ILO, translated into Russian, the term "employer" is used. 2 Ussnin V. I. and Or. Modern capitalist enterprise and the master's part. M, 1971. P. 60

§ 6. Employment relationship

tala, the acting capitalist, and not the management (administration) of the enterprise, which traditionally consists of hired managers (managers); for management is subordinated to, and determined by, ownership of the means of production. In labor law, this fact is veiled. Since the function of ownership is in many cases separated from the function of management, the manager externally acts as the subject of an employment relationship, although traditionally it will be exclusively a representative of the actual owner. The figures of the employer (employer, entrepreneur) and the hired (dependent) worker will not be homogeneous. This reflects the complexity of economic and social reality, the national economy, production structures, variety of forms of ownership. Entrepreneurs can be individuals or groups of persons (commercial partnerships, joint-stock companies, production associations, cooperatives, etc.), as well as the state. Thus, individuals or legal entities can be subjects of an employment contract - employers. The legal registration of the figure of an entrepreneur participating in economic and trade turnover is very diverse. The consideration of this issue is not included in the problems of labor law. "It is important to emphasize once again that regardless of the nature and specifics of the ϶ᴛᴏth registration, the employer (an individual or a holder of rights) is the subject of an employment contract. legal entity), which has labor legal personality, i.e., first of all, the nature of hiring and firing. From the point of view of the application of labor law, the division of employers (entrepreneurs) by sectors of the economy, by the size of enterprises (the latter, as already noted, often determines the scope of labor legislation) is of great importance. into any business association, whether the enterprise is national, i.e. owned by national capital, or foreign - a branch (subsidiary, dependent company, representative office) of a foreign corporation or a joint venture. An employee can only be an individual and work personally for his employer. Its replacement is possible only with the consent of the employer. The figure of the hired worker is also very heterogeneous. As part of employees concluding labor agreements

"See more details." Civil and commercial law of capitalist states. M., 1993.S.75-91.

Chapter_1 General characteristics of the branch of labor law

dialects, there are a large number of categories with a special legal status. Recall that ϶ᴛᴏ homeworkers, domestic workers, temporary workers, part-time workers, government employees, foreign workers. There is a transformation in legal status women (versus men), minors (versus adult workers), private employees versus workers, government officials versus other categories of workers, and workers Agriculture, railway transport, dock workers, sailors, journalists, employees of religious institutions, trade and insurance agents, executives of private enterprises (institutions), professional athletes. The legal regulation of labor relations for each of these categories of workers has more or less specifics. This is the result of the differentiation of labor law, which was discussed above. The condition for an employee to enter into an employment relationship will be his legal capacity and legal capacity. As you know, labor legal capacity is the ability of an individual to become the subject of an employment relationship. Labor capacity - the ability of the subject to directly work and perform legally significant actions in the labor sphere, to be a full-fledged subject of an employment relationship. In the West, employment capacity and legal capacity are usually separated. Labor capacity is acquired with the achievement of the minimum age for employment, which is set from 15-16 years (the year of completion of compulsory schooling). Labor capacity in full comes most often from 18 years, and in a number of countries even from 21 years. Thus, for several years, a young worker has legal capacity, but is deprived of full legal capacity. He can conclude employment contracts only through their parents (guardians, trustees) or with their consent. It is worth noting that they represent him in court. Such a restriction of the labor rights of young people under the age of 18-21 is hardly justified, and a number of Western lawyers ϶ᴛᴏ recognize. Wishing to explain this state of affairs, some authors argue that when a teenager enters into an employment contract through a representative, then there is not representation in the full sense of the word, but a kind of assistance provided to an “insufficiently mature” teenager. Therefore, as some lawyers believe, a minor worker is still essentially endowed with labor capacity. It seems to us that the ϶ᴛᴏ statement is unconvincing. The law in many cases states unambiguously that a young person before the age of majority is not entitled to own

§ 6 Employment relationship

venous will and own choice independently enter into an employment relationship. And ϶ᴛᴏ means that he, but in essence, is deprived of working capacity, which is objected to by many youth organizations, trade unions, which rightly qualify ϶ᴛᴏᴏ as a discriminatory moment against young workers. The pressure of broad social forces led to the abolition in Italy in 1975 of restrictions on the working capacity of minors, with the exception of a maritime employment contract and work in the theater (cinema). Restrictions on the working capacity of minors have been softened or completely abolished in recent decades in a number of other countries. Adult citizens, recognized by the court as incapacitated due to a mental disorder, in most countries are deprived of the right to work for hire, that is, to conclude employment contracts. But at the same time, there are many countries (Spain, Denmark, Finland) where a person under guardianship due to a mental disorder can, in principle, be hired and conclude an employment contract on his behalf. At the same time, the court in each specific case may prohibit the continuation of the labor / activity of such a person, taking into account the state of his psyche, mental abilities. In this case, the guardian must terminate the employment contract of his ward, concluded before the specified court decision. The condition of the labor legal personality of the employer - an individual - the achievement of civil majority and the presence of his legal capacity. A person under guardianship by a court decision is not entitled to act as a party to an employment contract as an employer. But there are exceptions to this rule in a number of countries. Thus, under Danish law, a guardian, with the permission of the state authorities, can allow his ward to do business. Note that in this way this person the right to hire workers and therefore to enter into employment contracts is granted In Finland, a person under guardianship due to a mental disorder is entitled to engage in entrepreneurial activities, unless prohibited by a court order, which is issued at the initiative of the guardian, taking into account the state of health and mentality of his ward. As for persons who are under patronage, in a number of countries (for example, in Denmark) they can work for hire and independently conclude employment contracts, but they can only engage in entrepreneurship together with their trustee (patron)

Chapter 1_0 General characteristics of the branch of labor law

In conclusion, we will touch upon the issue of the impact on the labor legal relationship of the internationalization of the labor market and the activities of transnational corporations (TNCs)1. The appearance in many countries among the participants in legal communication of such a new and vague figure as a foreign enterprise controlled by a foreign company (corporation) changes the usual picture of the employment relationship. First of all, traditional ideas about its subject composition are changing. Before the advent of TNCs, the national firm (its separate part) always acted as the employer-employee side of the labor relationship, the control center of which was within the state borders. The labor relation had no exits abroad, closed within the framework of the national labor market. The entrepreneur was always within reach of workers, trade unions, state bodies. It was precisely ϶ᴛᴏt that the national entrepreneur became the object of pressure during labor conflicts, since the decision-making that affected the social and legal status of the staff, individual and collective rights of workers depended only on him. With the advent of TNCs, the situation has changed, and not so much formally as in essence. Indeed, if we approach this issue formally and legally, then the affiliates2 of TNCs operating in any country do not differ from national firms. It is worth noting that they are under national jurisdiction, endowed with civil legal capacity, the right of legal personality and labor personality.
It is worth noting that, based on this approach, it can be argued that there is nothing specific in the legal status of TNC affiliates and they are no different from national firms, so there is absolute identity between the labor relations of employees of TNC affiliates and national firms. However, this conclusion is objectionable. It is worth noting that it does not take into account the organizational structure, management principles and the real mechanism of functioning.

"Transnational corporations (TNCs) - large firms (industrial and financial complexes) that have numerous production, as well as other (sales, trade, financial) branches abroad - The main feature of TNCs is separation from the national soil, vigorous activity abroad through organizations in foreign branches of the production of goods and services.The number of TNCs is currently approaching 4U thousand.It is worth noting that they control a third of the production of the private sector.The number of branches (subsidiaries) of TNCs scattered around the world is 250 thousand. not less than 15U million workers and employees, 2 Note that the term “4eilial” refers to any 4EIPMU^ that is a national subdivision of a TNC (branch, representative office, subsidiary or dependent economic society)

§ 6. Employment relationship

of an international corporation. In fact, the headquarters of TNCs actively influence labor relations, the subjects of which are their branches. As many researchers rightly point out1, in the activities of foreign affiliates of TNCs there will be a contradiction between legal form and economic and organizational content. The fact is that the divisions of TNCs are for the most part by no means independent organizational units, but are often managed from one center. Since many decisions concerning employees of affiliates are ultimately made in the central office of the international concern, ϶ᴛᴏ leads to the fact that TNC affiliates cannot be fully responsible for obligations arising from an employment relationship. It is worth noting that they act with an eye to the position of the “center”, i.e. the headquarters, which largely determines the very possibility of employment for workers and employees of the branch, many aspects of their labor relations, working conditions. In our opinion, the labor legal personality of a foreign branch as a unit of the international industrial and economic complex can be characterized as limited, since its full implementation is limited by the power of the headquarters of the corporation, which makes fundamental decisions, incl. in the sphere of labor, in the interests of TNCs as a whole, i.e., primarily the parent company. Thus, we believe that a foreign enterprise is a special, specific subject of an employment relationship that differs from a typical national enterprise. This should, in particular, be fully taken into account when developing legislation designed to ensure the rights and interests of workers in the host state employed in enterprises - branches of TNCs or in enterprises with foreign participation. It should be noted that the issue of the legal status of a foreign enterprise as a subject of an employment relationship, the protection of the rights of employees at these enterprises is now gaining practical interest for our country, taking into account the influx of foreign investment into Russia and the need for legal regulation of the activities of foreign and joint ventures, in particular, the use of them hired labor.

See: OECD. Structure and organization of multinational enterprises. Paris,

The main institutions of labor law in foreign countries. Labor law systems in foreign countries

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1. Kiselev I.Ya. Foreign labor law// Textbook for universities. - M: Publishing group NORMA-INFRA. M, 1998. - 263s.

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Introduction

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Chapter 2. History of labor law in foreign countries

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