The Russian Federation is a member of a number international organizations. This circumstance makes a certain range of documents binding on our country. In turn, these organizations, being interested in the implementation of the standards established by them, develop a set of measures to control and supervise compliance with the norms of international legal acts.
Usage foreign experience requires taking into account not only legal norms, models, but also the conditions of the legal systems in which they exist and are implemented. It is necessary to understand how these conditions legal systems are comparable to a particular state and are suitable for the use of borrowed designs.
In the labor legislation of many countries, as well as acts of international organizations, the main common features in the legislative regulation of labor protection in Russian Federation:
a) is carried out in order to preserve the life and health of employees in the course of production activities;
b) contains international, federal and regional regulations;
c) includes legislative acts of general validity and laws relating to certain areas and categories of employees;
d) provides for the provision of control (supervision) over the observance of labor protection by a specially created system of bodies.
The structural basis for OSH in a particular country is usually described in its legislation. In this case, two options are possible. The first is represented by the United States and Great Britain, where in legislative order only standards are set to be met. To achieve this goal, employers go different ways, relying, if necessary, on information and technical support from the side of the state. It is the responsibility of the authorities to ensure compliance with established standards.
The second option is represented by French legislation, which not only sets goals, but also prescribes a certain procedure for achieving them. Legislation requires employers to provide specialized labor protection services with the involvement of specialists who have received special training, and labor protection units are required to provide such services.
In the legislation on labor protection in the Russian Federation, the following main features are distinguished that distinguish it from the legislation of the United States and a number of other countries:
The presence of constitutionally fixed provisions on the implementation by the state of labor protection and on the right to work in conditions that meet the requirements of safety and hygiene;
Steady increase in the number of ratified international acts relating to labor protection;
Inclusion of the main legal regulation of labor protection in a codified legislative act - Labor Code the Russian Federation as one of its sections;
Adoption in most subjects of the Russian Federation of comprehensive regional laws on labor protection;
Continuous improvement of federal and regional legislation and the mechanism for its implementation, which includes the norms of other regulatory legal acts, as well as a multi-level system of social partnership acts and an extensive set of local acts.
In the USA, unlike the Russian Federation legislative regulation labor protection takes place within the framework of a single act on labor protection general sphere actions, as well as a set of special acts on labor protection for special categories of workers and in certain industries, adopted at the federal and regional levels, supplemented by the implementation mechanism inherent in the Anglo-Saxon system of law. The Russian Federation is actively ratifying the ILO conventions on labor protection, in contrast to the United States, where only one convention in this area, dedicated to labor protection in mines, has been ratified.
One of the disagreements between the Russian labor legislation and the legislation of a number of countries is the scope of the norms on the labor protection service. Article 217 of the Labor Code of the Russian Federation prescribes the creation of such services only in organizations engaged in production activities. AT legal science there is different approaches to the interpretation of this term, however, in any case, part of the enterprises is outside the scope of this rule: in one case, these will be structures that do not involve material production, i.e. financial, scientific, cultural and other institutions, and in the other - organizations whose activities do not generate income (certain types of non-profit enterprises, state institutions etc.). Part 1 Art. 3 of Convention No. 161 of the ILO prescribes the development of "health services at work" for all workers without exception, specifically emphasizing that this includes even public sector workers and members of production cooperatives. However, in accordance with the current Russian legislation, the latter are not subjects of labor law at all. Meanwhile, the Convention not only requires the creation of such services at all enterprises without exception, but also instructs the state to regularly report on further plans for their creation in cases where the immediate creation of such services everywhere and immediately for any reason is impossible.
Many countries provide for the creation of special safety services at enterprises or the appointment of appropriate specialists - safety engineers (in Germany, Austria, Japan - mandatory; in the UK, Canada, Australia - by decision of the employer), and the legislation also provides for the creation of services on industrial sanitation, the appointment of factory doctors. French legislation provides for the creation at enterprises employing more than 250 people of a special social service on labor problems, the goals of which are to provide advice to employees in solving problems of a psychological nature, to coordinate the activities of the employer and the trade union in solving social issues, prevention of production stresses, creation of a favorable psychological climate in the organization.
There is no agreement between the Russian and international norms of labor law in the development of national policy in relation to labor protection services, and in the principles of equal participation of employers, employees and their representatives in the implementation of organizational and other measures related to labor protection services. The Russian legislator prescribes that most of these issues be resolved at all levels without the involvement of employees and their representatives. In turn, the subordination of labor protection services to the head of the organization or his deputy, enshrined in Art. 2 Recommendations on the organization of the work of the labor protection service in the organization, approved. Decree of the Ministry of Labor of Russia dated February 8, 2000 No. 14, completely contradicts the principle of complete professional independence of personnel providing health services at work (Article 10 of ILO Convention No. 161).
At present, the discrepancies between Russian and international legislation are quite serious and even fundamental to some extent. current Russian legislation on labor protection services quite actively supports the authoritarianism of the employer to the detriment of industrial democracy, enshrined in international standards. All this is exacerbated by the lack of a single public policy in this area, as well as serious shortcomings in terms of monitoring compliance with labor protection legislation. Unfortunately, in this area go to international standards even the most progressive enterprises will not succeed, since the categorical norms of the Labor Code of the Russian Federation and the Recommendations of the Ministry of Labor of Russia leave no room for the personal initiative of the employer.
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. labor force. 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- eighteen.
Chapter 1. general characteristics branches 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, and the diversity 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
voluntarily and of their own choice to 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 this gives the person the right to hire workers and therefore enter into employment contracts. In Finland, a person under guardianship due to a mental disorder has the right to engage in entrepreneurial activity, unless prohibited by a court order, which is issued at the initiative of the guardian, taking into account the state 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 outlets abroad, it 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 company)
§ 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 workers at these enterprises is now gaining practical interest for our country, taking into account the influx into Russia foreign investment and the need for legal regulation of the activities of foreign and joint ventures, in particular the use of hired labor on them.
See: OECD. Structure and organization of multinational enterprises. Paris,
The experience of industrialized countries shows that without state regulation of labor relations, the scope of which is determined by law, the normal functioning of the economy is impossible.
The functions of regulatory bodies include studying the problems of the labor force, professional training of labor resources. All this activity is carried out on the basis of an analysis of the prospective demand for workers of various specialties. In this regard, in most Western countries, among others, government organizations there is an institute of labor relations, in the structure of which the ministries of labor play a leading role.
At the current stage of development and functioning of foreign labor law, a combination of two methods of legal regulation is characteristic: centralized (authoritarian) and decentralized (autonomous).
The decentralized (autonomous) method is represented by local sources of law, individual agreements between the employee and the employer, and a collective agreement.
In the literary sources of Western jurists, the centralized method is often called the legislative method, and the decentralized method is collectively contractual.
In the labor law of developed countries market economy It is possible to single out such models of the mechanism for the implementation of labor standards: European and Anglo-Saxon.
France can be called a representative of the European model, in the labor legislation of which there is a significant number of legal norms providing for material, administrative and even criminal liability for violating labor laws.
The representatives of the Anglo-Saxon model of the implementation of labor law include the United States and England. Thus, in the United States, special administrative bodies function, appointed by the president with the consent of the Senate, to oversee compliance with labor laws. Each of them consists of 3-5 people, and no more than 2-3 people can be members of one political party, respectively. There are also such bodies as the National Labor Relations Administration (NLR), the National Mediation Administration, the Commission for Equal Employment Opportunities. Their functions include reviewing employee complaints and interpreting relevant laws (and the employer does not have the right to discipline or dismiss employees who have filed complaints with one of these bodies about violations of their rights). Moreover, if such a dismissal nevertheless took place, then the employer is obliged not only to reinstate the employee to work, but also to pay him wages for the entire period of forced absence.
In England, special administrative bodies are also being created, the specificity of which is in the tripartite basis of creation. The Advisory Service for the Conciliation of Arbitration with the Central Arbitration Commission, the Commission for labor resources and the Equal Employment Opportunity Commission, with a subcommittee on racial equality. These bodies are relatively independent from the public administration, in particular from the Ministry of Labour, which in many countries is responsible for the implementation of certain norms and provisions of labor legislation.
The Anglo-Saxon model also provides for the use of court orders as instruments of norms and regulations of labor law, which can be sent to both the employer and the individual worker or the trade union as a whole.
The priority sources of labor law in all countries with a developed market economy, as a rule, are laws and other acts government agencies establishing an inviolable minimum of labor rights.
The collective agreement in many Western countries, due to the shift in emphasis in legal regulation towards local regulation, acts as an equal legislative source of labor law. The normative part of the collective agreement contains provisions on:
wages (tariff rates, allowances, additional payments);
working time;
rest time;
pension provision;
social services;
regulation and organization of labor;
mode of operation;
structure and employment;
distribution of labor force;
occupational health and safety;
disciplinary rules;
trade union rights at the enterprise;
industrial training and professional training of personnel;
terms of employment and dismissal; procedure for handling labor disputes.
In such countries as France, Japan, Greece, Italy, Spain, Portugal, the right to collective agreements is expressly enshrined in the constitution, while in Germany, Austria, Denmark, Luxembourg the right to collective agreements is interpreted as a right derived from the right to association; in the United States, the Netherlands, Belgium, Sweden, Canada and New Zealand, this right is regulated by statute.
In countries with a market economy, the entrepreneur has the right to freely hire the labor force he needs. But this right is not absolute, it is in many respects limited by legislation, which provides for the observance of a number of conditions. The most important of them is the prohibition of discrimination against those who wish to go to work on the basis of their race, skin color, nationality, gender, religious beliefs, and age.
However, the existence of a labor market where the demand for jobs exceeds the supply gives employers the opportunity to choose applicants with better characteristics, and rightly so.
The study of the labor market, the organization of recruitment on a competitive basis are the functions of the personnel departments of firms. The number and professional composition of those hired depend on the volume and types of work. In other words, the hiring process starts with identifying the firm's talent needs and then matching the requirements for each position with candidate data.
Employers use a variety of methods to determine if an applicant is eligible for the job. The experience of Western firms made it possible to identify five main tools for testing the knowledge and personal qualities of candidates:
one). Analysis of personal data, which allows to identify the level and quality of education, the availability of practical experience, etc.
2). Obtaining information about the applicant educational institution or at a previous job.
3). Tests in the broadest sense: psychological, knowledge tests, propensity determinations, etc. Since the application of the test method requires complex and lengthy preparation, candidates can obtain standard tests in any library.
four). Skills testing in assessment centers - applies only to highly qualified workers.
5). Job interview or interview. This is a mandatory and final stage of verification.
There is evidence that, for example, in the United States more than 150 million recruitment interviews are conducted each year, and less than 10 million people are hired.
In the process of evaluation during hiring, not only the collection of information about the candidate takes place, but also the provision of a certain set of information to him: the content of the proposed work, opportunities for advancement and advanced training, issues of remuneration and services.
Thus, the characteristics of the candidate correlate with the awareness of the desire to work and develop precisely for this enterprise or in a firm. Subsequent labor relations between the employer and employees are divided into collective and individual. Collective - implemented through collective labor agreements concluded between the trade union of workers and the entrepreneur. They contain articles relating to the prescription, content and performance of an employment contract, as well as other articles defining the mutual rights and obligations of the parties.
In labor law Western countries the main and additional duties of employees are defined.
The main responsibilities are:
fidelity (non-competition pact);
devotion;
diligence;
cooperation.
In addition, the employee must:
inform the employer on issues related to employment;
show respect to the employer;
actually provide the employer with labor;
work personally for the employer.
The main element of the duty of "loyalty" is the non-disclosure by the employee of trade secrets and production secrets. In the West, trade secrets are protected not only by labor law, but also by criminal law. As a rule, a non-competition pact is concluded between the employer and the employee upon hiring or upon termination of the employment contract, which is drawn up only in writing. The non-competition pact binds the employee with certain obligations not only for the duration of the employment contract, but also after its termination. These obligations are much broader than non-disclosure of trade secrets and include the following prohibitions:
prohibition for a certain time after dismissal (depending on the country - from 1 to 5 years) to be hired by a similar enterprise;
a ban on the creation of a similar enterprise;
a ban on business relations with clients of the former employer;
a ban on the disclosure of any information regarding the former work.
The employer's responsibilities include:
the actual provision of work;
ensuring labor safety;
taking care of the safety of the employee's belongings during his stay at the enterprise;
compensation for harm caused in the course of work by an employee to third parties.
The variety of varieties (types) of employment contracts in Western countries is due to significant differentiation, taking into account the diversity and specifics of the work of various categories of workers, forms of employment.
The main types of employment contracts in Western countries include:
an employment contract for an indefinite period;
an employment contract for a fixed period;
employment contract for part-time work;
employment contract with "borrowed" workers;
an employment contract with a group of employees (group employment contract);
employment contract with sales agents (traveling salesmen);
employment contract with professional athletes;
employment contract with homeworkers;
employment contract with domestic workers;
maritime lease agreement;
employment contracts with employees of religious institutions;
an employment contract with managers (leading employees of the enterprise);
contract with a migrant worker;
part-time employment contract;
apprenticeship agreement.
As a rule, legislation in Western countries establishes a free form of an employment contract (at the discretion of the parties). However, in the last decade there has been a tendency to conclude an employment contract in writing. The law establishes a mandatory written form for the following types of employment contracts:
contract for a fixed period;
part-time contract;
maritime lease agreement;
contract with homeworkers;
agreement with managers.
It should be noted that a special certificate of the type of labor passport (work book) is provided for by law in France, Italy and Portugal (for certain categories of workers). In other Western countries, work books, as a rule, are not available, but there are certain documents that the employee is obliged to transfer to the employer upon employment.
the nature of the work provided;
normal working hours (typically 40 hours a week);
basic salary, allowances, allowances, bonuses or profit sharing, etc.;
the duration of the probationary period;
any exceptions or additional articles agreed between the parties.
Legislative provisions determine the minimum age for admission to work - 15-16 years, for dangerous and hazardous work - 18-19 years.
In many countries, the legislation introduces additional norms for labor protection of children and adolescents, namely:
prohibition of work in heavy, hazardous, dangerous and underground work;
a ban on bringing to work at night;
a ban on work with lump-sum pay.
At the same time, protecting the work of children and adolescents, the legislation establishes for them:
extended holidays;
half-holiday;
mandatory medical examinations (at the time of employment, and then regularly until the age of 18-21). In Western countries, there is a contractual procedure regarding the test period. The contractual basis may be stipulated either in a collective agreement or directly in an individual employment contract. As a rule, the duration of the probationary period is 1–6 months, depending on the categories of employees.
Labor law authorizes employers to impose the following disciplinary sanctions on an employee who has committed a disciplinary offense:
comment;
demotion;
suspension from work with loss (sometimes with preservation) of wages;
fine (except UK and France);
disciplinary dismissal, i.e. dismissal without notice and without payment of severance pay. Non-compliance by one or another party with its obligations may lead to labor disputes or conflicts, both individual and collective.
In the West, it is generally accepted to divide labor disputes according to the subject composition and the subject of the dispute into four main types:
collective;
individual;
economic (conflicts of interest);
legal (conflicts of law).
This division of conflicts is tied to the nature and extent of the impact of the conflict on the interests of workers, on working conditions and their legal regulation, and, most importantly, on whether this labor conflict relates to the establishment, change or application of legal norms.
Ways to resolve labor conflicts in Western countries are as follows:
consideration of the dispute in administrative or judicial bodies;
conciliation proceedings.
In the labor law of Western countries, the grounds for termination of an employment contract are:
death of an employee and other circumstances having the nature of legal events;
agreement of the parties;
the initiative of one of the parties;
liquidation of the enterprise;
expiration of the contract;
completion of certain work;
circumstances having the nature of "force majeure" (force majeure);
court decision to terminate the employment contract.
The principle of freedom of labor in Western countries determines the absolute right of an employee to dismiss on his own initiative.
The term for warning the employer about the upcoming dismissal is usually limited to one week; an application for resignation from work is made orally or in writing, which is determined by the terms of the collective agreement or the agreement of the parties.
With regard to individual layoffs at the initiative of the employer in most Western countries, the following rules apply:
mandatory justification for dismissal (for example, the presence of a good reason);
a warning for most layoffs;
prohibition of discriminatory dismissals;
limiting the layoffs of pregnant women, mothers, and the disabled;
a special procedure for the dismissal of trade union workers and members of the representative bodies of the personnel of the enterprise;
payment of severance pay;
requirement (in selected countries) coordinating certain types of dismissals with a state administrative body or a representative body of employees;
material compensation to the employee in the event that a court or arbitration body recognizes the dismissal as unreasonable, and in some countries, in certain cases, mandatory reinstatement in the previous job in case of illegal dismissal and payment of compensation for forced absenteeism (regardless of its duration).
Upon dismissal due to the expiration of the contract, the employee has the right to:
to an advance warning from the employer about the unwillingness to renew the employment contract;
on the severance pay, the amount of which depends on the amount of wages and duration of work;
for monetary compensation for unused vacation.
A fixed-term employment contract can be terminated ahead of schedule at the initiative of the employer only in the event of gross fault of the employee or force majeure.
In the 20th century, two main models of legal regulation of such dismissals were formed. The first model allows dismissal both for good reasons and without them (at the discretion of the employer), but with a warning about dismissal.
The second model allows the dismissal of an employee only for good reasons, but in two versions:
the first (normal) - with a warning. The duration of the notice of dismissal is fixed in laws and collective agreements, depending on the length of service, the age of the dismissed person, and the frequency of payment of wages. Typically, this period is: for workers - from one week to three months; for employees - from two weeks to six months; for senior employees - up to 12 months and even more. The employer, who did not warn the employee about the dismissal, is obliged not only to pay him wages for the warning period, but also to compensate for the damage;
the second (emergency, irregular, disciplinary) - without warning.
It should be noted that the first model prevailed before the Second World War and is currently preserved only in a few countries, while the second model is firmly entrenched in almost all countries of the world.
The group of grounds for dismissal caused by the behavior of the employee include:
serious misconduct giving grounds for dismissal without notice;
less serious misdemeanors serving for dismissal with a warning.
Circumstances for dismissal relating to the personality of the employee, but not caused by his fault, are circumstances arising from:
insufficient qualification of the employee;
lack of necessary abilities;
health conditions ( maximum term absence due to illness, during which dismissal is not allowed: in Norway - six months with an experience of up to 10 years, one year - with an experience of more than 10 years; in the Netherlands - two years, regardless of seniority);
reaching the retirement age by the employee (for all categories of employees - only in Switzerland and Luxembourg; for employees - in the Netherlands; in Germany and France - provided that these grounds are specified in the collective agreement. In Japan, the collective agreement or the internal labor regulations determine the age limit for a worker is usually 55-60 years; in Spain, the government sets the maximum age for workers depending on the situation on the labor market, but it cannot exceed 69 years; in the UK and Italy, people who have reached retirement age are subject to laws governing dismissal , does not apply; in the United States, retirement age is not considered a "good cause" for dismissal, but a mandatory retirement age is established for certain categories of workers).
The reason for the dismissal, determined by economic and production factors, is the reduction in the number of personnel for technical and socio-economic (industrial) reasons.
The criteria for selecting persons to be dismissed due to a reduction in the number of personnel are:
seniority;
qualification;
marital status.
It should be specially noted that none of these criteria is given preference in advance, and in each specific case, the employer, in agreement with the representative body of employees, determines the order of priority for each of these criteria.
Severance pay for the dismissal of workers who have entered into an employment contract for an indefinite period is paid in almost all countries. The amount of the severance pay depends on:
wages;
work experience;
the age of the worker.
At the same time, the law guarantees the preservation of labor relations in the event of temporary disability of the employee, provided that the employer is warned about this; when it changes legal status employer (change of head, merger of firms, etc.).
Labor law in the West legalizes and allows collective layoffs for the following reasons:
technical progress;
changes in the organization of production and labor, in the structure of the enterprise;
reduced demand as a result of economic fluctuations; increased foreign competition; measures taken by management to improve production efficiency. Decisions on such dismissals are made by the entrepreneur alone. Evaluation and, moreover, criticism of his decision is not within the competence of not only the courts or other state bodies, but also arbitration.
The duration of the annual paid holiday in Western countries varies for various categories of workers from one to eight weeks, which is determined by the country, industry, belonging to workers or employees, length of service, and in some cases - depends on age and working conditions.
Along with the annual paid vacation for recreation, the legislation and collective agreements of Western countries provide for the following paid and unpaid holidays:
vacations related to events in family life (birth of a child, marriage, death of a family member, etc.);
study holidays;
additional holidays for non-smokers, non-obese people;
leave to create their own enterprise (in France for persons who have at least three years of continuous work experience in this enterprise, its duration is 1-2 years).
"Sebeticle" is a kind of vacation, which is regulated in collective agreements. Its duration can be up to 11 months, this type of vacation is paid and is provided to employees with a long work experience at this enterprise once every 7-10 years. Such leave, as a rule, is received by top managers for complete rest and relaxation; scientific and pedagogical workers for additional research; veteran workers. Thus, the experience of countries with developed market economies shows that the establishment of civilized forms of labor relations contributes to the observance of the interests of both workers, business and society.
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