- Specialty of the Higher Attestation Commission of the Russian Federation12.00.05
- Number of pages 212
CHAPTER I. Concept, types and content of an employment contract
1. The concept of an employment contract
2. Types of employment contract
CHAPTER II. Conclusion, amendment and termination of an employment contract
Introduction of the dissertation (part of the abstract) on the topic “Employment contract in England”
The purpose of the dissertation research is to reveal the concept of an individual employment contract in England, study the types of employment contracts and the content of its terms, consider the theoretical foundations of the institution of an employment contract, generalize the practice of its conclusion, amendment and termination, study individual provisions and practical problems, including issues of protecting the rights of the parties to the contract and their responsibility for violations of its terms, and determining on this basis the prospects for further improvement of Russian labor legislation.
To achieve the goal of the dissertation research, the author set the following tasks:
1. Define an individual employment contract under English law, show its differences from related civil law contracts and indicate its role in regulating the labor relations of the parties in England.
2. Consider the main types of employment contracts, analyze the content of the employment contract.
3. Consider the procedure for concluding, amending and terminating an employment contract.
4. Give a general description of the legal means of protecting the rights of the parties to an employment contract, consider the procedure for resolving disputes under an employment contract and the types of responsibilities of the parties.
Methodological basis of the dissertation research. When writing the work, both general methods of scientific knowledge (analysis, synthesis and comparison) and special legal research methods were used. A historical, legal and comparative legal analysis of individual aspects of the institution of an individual employment contract was used, as well as a generalization of judicial practice studied by the author based on materials from cases of labor tribunals and courts in England.
The methodological basis for the development of concepts and their definition was the laws of formal logic.
When writing the work, the dissertation candidate used his own experience in drawing up employment contracts and resolving individual labor disputes, including through the courts, acquired while working in England.
The normative basis of the dissertation is made up of ILO documents, legislative acts of the European Union, Great Britain, judicial decisions of the European Court, courts and tribunals for labor disputes of Great Britain, the Constitution of the Russian Federation, laws of the Russian Federation, works of prominent specialists in the field of labor law.
Theoretical basis of the study. The theoretical basis of the dissertation research is the works of legal scholars: Aleksandrova N.G., Glazyrin V.V., Ivanova S.A., Kalensky V.G. Kiseleva I.Ya., Kurennogo A.M., Livshits R.Z., Mavrina S.P., Machulskaya E.E., Orlovsky Yu.P., Smirnova O.V., Snigireva I.O., Syrovatskaya L.A. , Tolkunova V.N., Shelomova B.A., Shkatully V.I., Khokhlova E.B. and etc.
In addition, the author used the works of such foreign legal scholars as: Bowers J., Wellington P., Kavanagh J., Napier B., Osman K., Perrins B., Randall N., Selwyn N., Smith I., Thompson A, Upeke R, Furmston M, Shrubsall W, et al.
The scientific novelty of the work lies in the fact that this is the first comprehensive study in Russia devoted to the legal regulation of individual employment contracts in England.
Although domestic science has previously studied certain issues of legal regulation of labor in England1, the issue of an individual employment contract in England has not been studied comprehensively.
This issue was also not specifically considered at the Soviet-British symposium on labor law, held in 1985 at the USSR Academy of Sciences.
The applicant reveals the topic of his dissertation work through a comprehensive study of the legal relations arising regarding the employment contract according to English law.
The author, making a brief excursion into the history of the development of the institution of the individual labor contract, points out that over time the individual labor contract has become the main source of regulation of the relations of the parties regarding the purchase and sale of labor in England. The dissertation author also notes that an employment contract in England is considered from the same fundamental positions as other commercial contracts, but the principle
1 See, for example, Ivanov S.A. The right to work, Soviet and British approaches. 1989, Kalenisky V.G. Legal regulation of labor in the UK. 1964, Kiselev I.Ya. Comparative and international labor law. 1999. Machulskaya E.E. The concept and content of an employment contract under the laws of Great Britain. 1997, Yablokova I.A. Collective agreement in England. 1995. Freedom of contract is limited by mandatory norms of statutes and implied terms developed by common (judicial) law2. The purpose of such a limitation is to achieve a reasonable balance of interests of the parties to the contract.
Exploring the concept of an employment contract under English law, the author notes that the disclosure of this concept is carried out through a system of judicial precedents. At the same time, the English legislator deliberately left the decision of this issue to the judiciary, deciding that this concept should be “flexible” so that it could evolve over time and changes in the nature and forms of relations regarding the purchase and sale of labor. For this purpose, the characteristic flexibility of the forms of general (judicial) law is more convenient than the specificity and unambiguity of the forms of statutory law issued by Parliament.
The dissertation is the first to provide an overview of judicial decisions of English courts and tribunals in labor disputes, containing the main postulates and tests through which the concept of an employment contract in England is revealed.
Having analyzed the types and contents of employment contracts, the author concludes that in England the parties to an employment contract are free to choose the type and terms of the contract, with the exception of imperative norms included in the employment contract through current legislation. The role of centralized regulation is mainly carried out in the field of protecting workers from discriminatory and unfair actions of the employer.
2 Common law refers to a system of case law developed by the courts by rendering decisions in certain cases that serve as binding precedent for lower courts. The other branch of UK law that takes precedence over the common law is called statutory law, which consists of statutes passed by Parliament.
Having studied the issues of concluding, amending and terminating an employment contract, the dissertation draws attention to the fact that English law does not establish any restrictions on the form in which an employment contract can be concluded or the procedure for concluding it. Under the principle of the inadmissibility of unilateral changes to an employment contract, English judicial practice, realizing that an employment contract, due to its nature, cannot remain static, recognizes the employer’s right in certain situations to make reasonable changes to it, dictated by production needs, but at the same time he is obliged to respect the interests of the employee. Likewise, the right of the parties to terminate the contract at any time during its validity is recognized. If such termination is made without legal grounds or in violation of the terms of the contract, the contract will still be terminated, and the injured party will have the right to receive damages arising from such unlawful termination of the contract. From this it is concluded that in England, if the terms of an employment contract are violated, the “status quo” is restored by compensating the injured party for its losses, and not by compulsory measures of a different nature.
Considering the issues of protecting the rights of the parties to an employment contract and their liability for violations of its terms, the dissertation reveals the nature of the interaction of methods of protecting rights through common (judicial) law and methods of protection provided for in the statutes. The conclusion is made about the multiplicity of methods of protection and responsibility of the parties under an employment contract.
Describing the structure and powers of bodies considering disputes under employment contracts and the procedure for their consideration, the author notes the advantages of specialized bodies for resolving labor disputes.
Thus, the dissertation reveals for the first time the concept, role and significance of an individual employment contract in England as the main source-regulator of relations between the parties on issues of hiring and labor, analyzes the types of employment contracts, details the main types and individual conditions of employment contracts, examines issues of conclusion, amendment and termination of the contract, protection of the rights of the parties to the employment contract and their liability for violations of its terms.
In the work, the applicant highlights the following main provisions for defense.
1. In English, as in Russian labor legislation, the regulation of labor relations is carried out at various levels - individual, collective, local and centralized. However, in
In England, the parties to the employment contract are given greater freedom to determine the terms of the employment contract, and the role of centralized regulation is mainly carried out in the field of protecting workers from discriminatory and unfair actions of the employer. An individual employment contract in England is the main source of regulation of relations between the parties regarding employment and labor, and, with the exception of mandatory provisions of law, the parties are free to establish any conditions in the contract.
2. Contract law is a separate branch of English law, which establishes general provisions on contracts applicable to any type of contract, regardless of the object. It follows from this that although there are certain specific provisions inherent only to an employment contract, basically English law approaches the consideration of an employment contract from the same fundamental positions as when considering other types of contracts.
3. Due to the specificity of the sources of the English legal system, in which judicial precedent plays a large role, a characteristic feature of the employment contract in England is the constant adjustment of the interpretation of standard provisions through court decisions in certain cases. Initially, issues of labor and hiring were completely regulated by judicial law. Only since the beginning of the 70s has labor legislation been actively developed through the law-making activities of Parliament. The last two decades have been characterized by the active influence of the legislative activities of the European Union on labor legislation in England. Differences in the legal systems of the UK and continental EU member states often cause disagreements in the interpretation of EU directives and regulations. The European Court of Justice plays a leading role in ensuring uniform interpretation and application of European law.
From this it is concluded that modern labor law in England is characterized by a variety of sources, which sometimes leads to conflicts of rules.
4. Although the Employment Rights Act contains a definition of an employment contract, this concept in England is revealed through a system of judicial precedents. Courts apply a number of criteria and tests when deciding the existence of an employment contract and distinguishing it from related civil law contracts.
5. Expanding the concepts of fixed-term and open-ended employment contracts, the author points out the absence in English legislation of any restrictions on concluding a fixed-term employment contract. At the same time, legislation is steadily developing towards equalizing the rights of workers under fixed-term and open-ended employment contracts, including the right not to be unfairly dismissed at the end of the contract. Thus, English law provides protection for workers hired under fixed-term employment contracts, not by prohibiting the conclusion of such contracts (except for certain conditions), but by equalizing the rights of workers on fixed-term contracts with the rights of workers hired on a permanent basis.
6. Considering the content of the employment contract, the dissertation author notes the presence of four main types of conditions of the employment contract: conditions expressed explicitly; included in the contract through current legislation; implied terms; incorporated conditions. The principle of freedom of contract, which is the cornerstone of English contract law, also applies to employment contracts. However, due to the existence of mandatory labor law provisions and implied terms, the scope of this principle in an employment contract is limited. A characteristic implied term inherent in all employment contracts is the condition of mutual respect and trust between employee and employer. This condition “qualifies” other provisions of the employment contract, including provisions that are expressly expressed. This means that a party to a contract must not exercise its rights under the contract in violation of the provision of mutual respect and trust. Moreover, this condition is considered an essential condition of the contract, the violation of which gives the injured party the right to terminate the employment contract and demand compensation. Actions by the employer that violate this condition will be regarded as dismissal of the employee, which gives the latter the right to claim protection under unfair dismissal legislation.
7. English law does not contain any instructions on the form or procedure for concluding employment contracts, however, it obliges the employer to provide the employee with the terms of his employment in writing within 2 months from the start of work. In practice, employment contracts are concluded in writing and contain detailed conditions governing issues of labor, pay, vacations, medical and pension services, etc. When hiring, the employer is obliged to comply with the legislation prohibiting direct or indirect discrimination in the field of hiring and labor based on grounds gender, marriage, race, disability and union membership.
8. When the enterprise is transferred to a new owner, the employment relationship is maintained. The concept of enterprise transition includes the transfer of the assets of the enterprise without transfer of legal personality to the new owner, as well as the transfer of any single operating function of the enterprise to a third party. The concept of “enterprise” is interpreted very broadly; it can even include just any single labor function, for example, cleaning premises, cooking, transportation, etc.
9. English legislation does not contain a unified list of grounds for termination of an employment contract. The concept of “termination” of an employment contract is revealed through a system of judicial precedents. Statutory law contains the concept of “dismissal” of an employee, and not every termination of an employment contract will constitute a “dismissal”. The dismissal of an employee is of particular importance because only if there is a fact of dismissal can the employee have recourse to the protections of unfair dismissal laws.
10. A characteristic feature of the protection of the labor rights of the parties under English law is the multiplicity of ways to protect rights, based both on the principles of common law and on the provisions of statutes. English legislation does not provide for a single control and supervisory body in the field of protection of labor rights. The functions of control and supervision over compliance and protection of the rights of the parties to an employment contract are carried out by state judicial and executive authorities, quasi-state commissions on discrimination, and the Service for Consultation, Mediation and Arbitration Dispute Resolution. Protection of the labor rights of parties in certain areas can also be carried out through mechanisms provided for in collective agreements and through self-defense.
11. England has a system of employment tribunals through which the vast majority of labor and employment disputes are resolved. This system is a fast and effective mechanism for resolving labor disputes.
12. Issues of liability under an employment contract in England are considered using the general principles of contractual liability. However, since labor relations are personal in nature, the employee may be subject to a special type of liability that does not occur in civil law relations - disciplinary liability. The parties to an employment contract have the right to establish, at their discretion, specific measures of liability for violation of certain terms of the contract, including fines. The parties also have the right to establish provisions that exclude or limit the liability of the parties under the employment contract. However, such provisions must not contradict current legislation and the principle of reasonableness.
The scientific and practical significance of the work is as follows:
The analysis of the law enforcement practice of English courts, given by the author in the work, can be additional theoretical material when improving the relevant provisions of Russian legislation on employment contracts.
A number of the considered conditions of an employment contract in England can be used in domestic practice when drawing up employment contracts.
The work can be used in teaching courses and special courses on labor law in law schools and other educational institutions.
Conclusion of the dissertation on the topic “Labor Law; social security law", Klimov, Pavel Valentinovich
CONCLUSION
In conclusion, I would like to highlight the following main theoretical provisions, studied in the dissertation and submitted by the author for defense, and also to note those practical provisions that, in the author’s opinion, seem to be the most interesting from the point of view of possible application in improving domestic legislation on employment contracts:
268 Provided that they comply with the provisions of the Employment Rights Act and the Unfair Contract Terms Act referred to above.
1) In English, as in Russian labor legislation, the regulation of labor relations is carried out at various levels - individual, collective, local and centralized. However, in England, the parties to an employment contract are given greater freedom to determine the terms of the employment contract, and the role of centralized regulation is mainly carried out in the field of protecting workers from discriminatory and unfair actions of the employer. An individual employment contract in England is the main source of regulation of relations between the parties regarding employment and labor, and, with the exception of mandatory provisions of law, the parties are free to establish any conditions in the contract.
2) Contract law is a separate branch of English law, which establishes general provisions on contracts applicable to any type of contract, regardless of the object. It follows from this that although there are certain specific provisions inherent only to an employment contract, basically English law approaches the consideration of an employment contract from the same fundamental positions as when considering other types of contracts. For example, there is no difference in resolving the issue of the method or moment of concluding an employment contract or a civil law contract. Also, many conditions incorporated by default (implied terms) in a civil contract will operate similarly by default in an employment contract. In this sense, in English law there is no question of the applicability of provisions relating to civil contracts to employment contracts. Although, of course, there are certain features inherent only in employment contracts, for example, issues of liability of the parties for violations of the terms of the contract, implied terms of trust and confidentiality, etc. The author believes that certain fundamental provisions of Russian civil law can also be successfully applied to the relations of the parties under employment contract, and the regulatory framework governing legal relations arising under an employment contract should not be limited only to the norms enshrined in labor laws.
3) Due to the specificity of the sources of the English legal system, in which judicial precedent plays a large role, a characteristic feature of the employment contract in England is the constant adjustment of the interpretation of standard provisions through court decisions in certain cases. Initially, issues of labor and hiring were completely regulated by judicial law. Only since the beginning of the 70s, labor legislation has been actively developed through the law-making activities of Parliament. The last two decades have been characterized by the active influence of the legislative activities of the European Union on labor legislation in England. Differences in the legal systems of the UK and continental EU member states often cause disagreements in the interpretation of EU directives and regulations. The European Court of Justice plays a leading role in ensuring uniform interpretation and application of European law. Modern labor law in England is characterized by a variety of sources, which sometimes leads to conflicts of rules.
4) Although the Employment Rights Act contains a definition of an employment contract, this concept in England is revealed through a system of judicial precedents. Courts apply a number of criteria and tests when deciding the existence of an employment contract and distinguishing it from related civil law contracts. It seems that a number of such features developed by English courts can be successfully borrowed for use in domestic practice.
5) In English law there are no restrictions on concluding a fixed-term employment contract. At the same time, legislation is steadily developing towards equalizing the rights of workers under fixed-term and open-ended employment contracts, including the right not to be unfairly dismissed at the end of the contract. Thus, English law provides protection for workers hired under fixed-term employment contracts, not by prohibiting the conclusion of such contracts (with some exceptions under certain conditions), but by equalizing the rights of workers on fixed-term contracts with the rights of workers hired on a permanent basis. It seems that this approach meets both the interests of employers, who are not limited in the freedom to conclude fixed-term contracts, and the interests of employees, whose rights are not infringed due to the fact that their contract is of a fixed-term nature.
6) English law identifies four main types of terms of an employment contract: express terms; included in the contract through current legislation; implied terms; incorporated conditions. The principle of freedom of contract, which is the cornerstone of English contract law, also applies to employment contracts. However, due to the existence of mandatory labor law provisions and implied terms, the scope of this principle in an employment contract is limited. A characteristic implied term inherent in all employment contracts is the condition of mutual respect and trust between employee and employer. This condition “qualifies” other provisions of the employment contract, including provisions that are expressly expressed. This means that a party to a contract must not exercise its rights under the contract in violation of the provision of mutual respect and trust. Moreover, this condition is considered an essential condition of the contract, the violation of which gives the injured party the right to terminate the employment contract and demand compensation. Actions by the employer that violate this condition will be regarded as dismissal of the employee, which gives the latter the right to claim protection under unfair dismissal legislation. Since judicial precedent is not a source of law under Russian law, the author believes that it would be justified to introduce a legislative provision requiring parties to an employment contract to act in a fair manner (without violating the relationship of mutual trust and respect) in fulfilling their obligations under the employment contract.
7) English law does not contain any instructions on the form or procedure for concluding employment contracts, however, it obliges the employer to provide the employee with the terms of his employment in writing within 2 months from the start of work. In practice, employment contracts are concluded in writing and contain detailed conditions governing issues of labor, pay, vacations, medical and pension services, etc. When hiring, the employer is obliged to comply with the legislation prohibiting direct or indirect discrimination in the field of hiring and labor based on grounds gender, marriage, race, disability and union membership.
8) As in Russian labor legislation (Article 75 of the Labor Code of the Russian Federation), in England, when an enterprise is transferred to a new owner, labor relations are preserved. However, the concept of enterprise transition includes the transfer of the assets of the enterprise without transfer of legal personality to the new owner, as well as the transfer of any single operating function of the enterprise to a third party. The concept of “enterprise” is interpreted very broadly, so that it can even include just any single labor function, for example, cleaning premises, cooking, transportation, etc. The experience accumulated in England and other EU countries on this issue can be successfully borrowed in domestic practice when resolving disputes under Art. 75 Labor Code of the Russian Federation.
9) English legislation does not contain a unified list of grounds for termination of an employment contract. The concept of “termination” of an employment contract is revealed through a system of judicial precedents. Statutory law contains the concept of “dismissal” of an employee, and not every termination of an employment contract will constitute a “dismissal”. The dismissal of an employee is of particular importance because only if there is a fact of dismissal can the employee have recourse to the protections of unfair dismissal laws. Dismissals made by the employer, except in rare cases, will be valid even if the dismissal procedure was violated or there was no proper reason for it. The employer, of course, bears responsibility for such unfair actions, which most often comes down to limited monetary compensation. It is very rare that an employee can count on reinstatement at work, although such a measure is provided for by law. It appears that the position of the English employment tribunals, which prefer to award monetary compensation for unfair dismissal rather than reinstate the employee, is very reasonable. Such a measure, on the one hand, compensates the employee for his losses due to the loss of his job, and on the other, resolves the labor conflict that caused the employee’s dismissal, without “imposing” an unwanted employee on the employer.
10) A characteristic feature of the protection of the labor rights of the parties under English law is the multiplicity of ways to protect rights, based both on the principles of common law and on the provisions of statutes. English legislation does not provide for a single control and supervisory body in the field of protection of labor rights. The functions of control and supervision over compliance and protection of the rights of the parties to an employment contract are carried out by state judicial and executive authorities, quasi-state commissions on discrimination, and the Service for Consultation, Mediation and Arbitration Dispute Resolution. Also, the protection of the labor rights of parties in certain areas can be carried out through mechanisms provided for in collective agreements and through self-defense.
11) England has a system of employment tribunals through which the vast majority of labor and employment disputes are resolved. This system is a fast and effective mechanism for resolving labor disputes. The author supports the idea of creating specialized courts (tribunals) in Russia to resolve disputes arising from labor relations.
12) Issues of liability under an employment contract in England are considered using the general principles of contractual liability. However, since labor relations are personal in nature, the employee may be subject to a special type of liability that does not occur in civil law relations - disciplinary liability. The parties to an employment contract have the right to establish, at their discretion, specific measures of liability for violation of certain terms of the contract, including fines. The parties also have the right to establish provisions that exclude or limit the liability of the parties under the employment contract. However, such provisions must not contradict current legislation and the principle of reasonableness.
The experience gained in England on the issues of labor law discussed in the dissertation can be of great theoretical and practical value for Russian labor law specialists working to improve Russian labor legislation. Further study of English labor law, in the author’s opinion, is a necessary element of the ongoing work to modernize Russian labor law.
List of references for dissertation research Candidate of Legal Sciences Klimov, Pavel Valentinovich, 2002
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Once a person's employment contract is classified, the courts have specific rules for determining, beyond the statutory minimum charter of rights, what its terms are. Similar rules for inclusion terms and terms of implication exist as in a regular contract. However, in Gisda CYF on Barratt, Lord Kerr emphasized that, if it affects statutory rights, the construction process is one which must be "intellectually segregated" from the general law of contract, because of the employee dependency relationship. In this case, Mrs Barratt was informed that her employment had been terminated in a letter which she opened 3 days after his arrival. When, 3 months and 2 days after her arrival, she made an unfair dismissal claim, the employer argued that the period by which in an ordinary contract one would be bound by notice had passed when a reasonable person would have read the notice. The Supreme Court ruled that Ms Barratt had time to bring her claim because she was only bound by the notice when she actually read it. In the case of employment it was different, given the purpose of labor laws to protect the employee. From formation to termination, employment contracts must be interpreted in the context of statutory protections for dependent workers.
Every employee has the right, based on the written statement of their employment contract, which usually includes a workplace collective agreement, and must follow, or be better than, the minimum statutory rights.
Conditions of employment are whatever the employee is promised when work begins, as long as they do not conflict with statutory minimum rights. Additionally, the terms may be included by reasonable notice, such as by referring to the personnel manual in a written employment agreement or even in a document in the filing cabinet next to the personnel handbook. Although without express language they are considered non-binding between the union and the employer, a collective agreement can give rise to individual rights. The test applied by the courts is to freely ask whether its terms are "prone" to inclusion, rather than statements of "policy" or "desire". Where the words of the collective agreement are clear, the "last in first" rule was carried out in one case to potentially qualify, but in another case a clause purporting to condemn forced dismissals was held to be binding only "in honor".
In addition to statutory rights, expressly agreed terms and embedded terms, the contractual feature of an employment relationship is the series of standardized implied terms (or statutory terms) that accompany it. First and foremost, and in addition to the individualized TERMS that courts have interpreted to reflect the reasonable expectations of the parties, courts have long held that employees are owed additional and beneficial obligations, such as a safe work system, [60] and wage payments, even if the employer does not have work. . Reflecting more recent priorities, employers are required by the House of Lords to inform their employees about their workplace pension rights, although the lower court has stopped requiring employers to provide advice on obtaining disability benefits in the workplace. The key term implied is the duty of good faith or "mutual trust and confidence". It is a flexible concept applicable to a wide range of circumstances giving rise to damages or injunctions. Examples include requiring employers not to act authoritarianly, not to name employees behind their backs, not to treat employees unequally when raising wages, not to run the company as a front for international crime, or to be discreet in order to multiply a bonus. There was disagreement between the judges as to the extent to which the core implied term of mutual trust and confidence could be "inferred from the contract", and the House of Lords held that the parties may, when they are "free" to do so, while others approach the issue as one of the construction of an agreement that is within the exclusive jurisdiction of the court to determine.
The second and older hallmark of an employment contract is that employees are required to follow the instructions of their employers while working, unless this is contrary to the law or their agreed terms. Every employment relationship leaves the employer with a discretionary balance, historically expressed as a master-servant relationship. Today, in practice, this leaves the employer the opportunity to change the way things are done to suit the needs of the business. The courts have allowed this to continue as long as it does not conflict with the urgent terms of the contract, which always require the employee's consent or a renegotiation of the collective agreement. The status of "flexibility clauses", which suggest that employers have discretion to vary any contractual term, is disputed as it will often allow for the abuse of power that the common law controls. The limits to the courts' tolerance of such practices are clear where they relate to access to justice procedures or potentially where they would conflict with the duty of mutual trust and confidence.
In 1973, a new systematization of labor legislation was implemented on the same basis. 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 State Council; 3) simple decrees adopted by the government. As an appendix, some legal acts that remained outside the codification are given 1.
The laws define the fundamental principles of labor law. Decrees are acts of application of laws, supplementing them. Decrees clarify and detail the provisions contained in the above-mentioned 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 workers, forms of their interest in the activities of enterprises; labor conflicts; control over the application of labor legislation; special provisions relating to certain professions (miners, transport workers, construction workers, homeworkers, domestic workers, sales agents, journalists, artists, fashion models, concierges); special provisions relating to overseas departments; continuous professional training within the framework of continuing education. The book is divided into titles, chapters and articles. At the end of most books there is a special title containing instructions on liability for violation of labor standards.
In Canada, a federal Labor Code has been in force since 1972, which applies to federal enterprises, i.e. falling within the scope of federal laws. The Code represents the incorporation and partial consolidation of labor legislation.
“It is stipulated that the necessary additions and changes are made to the Code annually, taking into account newly adopted laws. However, some important laws are not included in the Labor Code.
In countries such as the USA, Great Britain, Italy, Japan, Belgium, and the Netherlands, the question of codifying labor legislation as a whole was not raised at all, either theoretically or practically, and in Germany the attempt to create a labor code was not successful.
In Spain, the government's mandate to develop a Labor Code, contained in the Law of March 10, 1980, has not yet been implemented.
So, in Western countries, large-scale codification of labor legislation, as a rule, has not been carried out.
The absence of such codification enhances the flexibility and lability of labor law, its dynamism and response to the needs and requirements of production, which is in the interests of economic profitability and greater business efficiency. At the same time, this weakens the protection of employees, complicates the perception of labor legislation, and makes it difficult for individual workers who are not familiar with the intricacies of jurisprudence to apply labor standards in order to protect their interests.
Codification of labor legislation is a traditional demand of trade unions and political forces on the left spectrum. But it has not yet been fully implemented in the West. However, recently (mainly in the 90s) some countries have adopted consolidated acts that systematize the basic laws that make up collective, and in some cases individual, labor law. For example, in Great Britain in 1992, the Consolidated Law on Trade Unions and Labor Relations was adopted - a codification-type act, which is a systematization of rules relating to trade unions, employers' organizations, collective agreements, strikes, and administrative institutions operating in the field of collective labor relations. In 1996, another consolidated act was adopted - the Employment Rights Act. In 1980, partial codification of labor legislation was carried out in Spain in the form of the Workers' Statute.
In New Zealand, the Employment Contracts Act was passed in 1991. The main sections of this extensive legislative act of a codification nature are: freedom of association, collective agreement and individual labor contract, individual labor disputes, strikes and lockouts, and the activities of the court on employment issues.
Thus, in a number of countries there are tendencies towards partial codification of labor legislation, mostly in a unique form of consolidated acts.
Basic labor regulations of individual countries. The sources of labor law in different countries have significant national specifics, which makes it necessary to cover the regulations of each country separately.
USA. Sources of labor law: Constitution, federal laws, state laws, collective agreements, judicial decisions, internal labor regulations, ratified ILO conventions.
The US Constitution, adopted in 1787, does not contain provisions specifically related to labor. However, according to the traditional interpretation, it is considered the original legal basis for labor regulation. The publication of federal labor laws is based on Art. 1, Section VIII of the Constitution, which gives Congress the power "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."
The US Constitution establishes fundamental civil rights. Among other things, the First Amendment to the Constitution prohibits Congress from making laws restricting freedom of speech, the press, and the right of assembly. The Thirteenth Amendment prohibits slavery or involuntary servitude. These provisions indirectly relate to the sphere of labor relations.
Federal labor legislation regulates mainly the relations between entrepreneurs and trade unions, determines the legal status of trade unions, collective agreements, regulates strikes, pickets, sets minimum wages, contains rules regarding working hours, labor protection, in particular, adolescents and youth. Some federal laws regulate the labor of certain categories of government employees (for example, the Lloyd-La Follette Labor Act for Federal Postal Employees).
The most important federal labor laws include: the Labor-Management Relations Act of 1947 (Taft-Hartley Act); Labor Relations Reporting and Disclosure Act of 1959 (Landrum-Griffin Act); Anti-Union Writs Act of 1932 (Norris-LaGuardia Act); Fair Labor Standards Act of 1938 (Black-Connary Act); Labor Law
in railway transport 1926; Gender Equal Pay Act 1963; Civil Rights Act of 1964 as amended in 1991 (Title 7); Age Discrimination in Employment Act 1967; the Occupational Safety and Health Act of 1970 (Williams-Steiger Act); Vocational Training Act 1984 (Perkins Act); Persons with Disabilities Act 1990; Family Care Leave Act of 1993
According to the US Constitution, states have the authority to make labor laws. Their laws apply to the domestic economy, i.e. to small local enterprises.
The content of state labor laws generally coincides with federal labor laws. Federal laws are consistent with similar state laws. Many of them issued “small laws” of Taft-Hartley, Landr-ma-Griffin, etc. Most states also have laws establishing minimum wages and maximum hours of work for women and, in some states, for adult workers. In some cases, there are rules that are not included in federal labor legislation (for example, on the length of lunch breaks). However, in most states, labor laws cover fewer issues than federal laws.
The most important source of US labor law is collective bargaining agreements. Their particular importance is explained by the fact that labor legislation mainly defines only the rules of the struggle to establish working conditions. The working conditions themselves are regulated in collective agreements. It also contains most of the rules relating to individual employment.
In the USA, the role of the so-called common law, which developed from court decisions, is very important. Of particular importance are the decisions of the Supreme Court, which determine judicial policy regarding the position of trade unions, collective agreements, and strikes.
Most American labor laws provide for the formation of special administrative bodies designed to ensure the implementation of these laws. These include, for example, the National Labor Relations Administration (NLRA), created by the Wagner Act and preserved in a slightly modified form under the Taf Act.
ta-Hartley; the Wage and Hour Administration under the Fair Labor Standards Act; The National Mediation Authority and the National Railway Labor Dispute Administration, established under the Railway Labor Law.
These bodies, formed by the President of the United States with the advice and consent of the Senate, interpret relevant laws and consider labor disputes related to their application. The court makes the decisions of these bodies binding and has the right to review them, although questions of fact supported by evidence and recorded in the decisions of administrative bodies are not subject to judicial review. In American literature, administrative bodies such as NUTO are called quasi-judicial. Their decisions, confirmed by the courts, as well as the administrative acts issued by them, are considered sources of labor law.
The source of American labor law is internal labor regulations, adopted for the most part by the individual entrepreneur. They include rules regarding the behavior of employees at the enterprise, regulate working hours, and establish sanctions for violation of discipline. Collective agreements usually provide for the employer’s obligation to inform employees about the content of internal labor regulations (post them for public viewing, distribute copies of them, etc.).
At the beginning of 1998, the United States had ratified 12 ILO conventions.
Great Britain. Sources of labor law: labor laws (statutory law), by-laws, court decisions (common law), collective agreements, acts of employers (acts of the employer), customs, ratified ILO conventions.
English labor laws 1 regulate trade unions and strikes, occupational health and safety,
1 The main labor legislations are: Conspiracy and Protection of Property Act 1875, Employment Protection Act 1975, Consolidated Employment Protection Act 1978, Employment Acts 1980, 1982, 1988, 1990, Act Equal Pay for Men and Women 1970, Sex Discrimination Act 1975, Race Relations Act 1976, Health and Safety Act 1974, Vocational Training Act 1982, Consolidated Act Trade Union and Labor Relations Act 1992, Trade Union Reform and Labor Rights Act 1993, Employment Rights Act 1996
working hours for teenagers, the procedure for paying wages, some aspects of the employment contract.
In the UK there are several hundred labor regulations issued by government executive bodies. They relate to a variety of labor issues, including regulating child labor, taxes on vocational training, issuing licenses for the operation of labor exchanges, determining the procedures for the operation of industrial courts, or affecting specific industries. The Minister of Civil Service determines the working conditions of officials of central government agencies.
A specific source of British labor law are codes of practice, which, although not considered mandatory (their violation does not entail legal proceedings), are taken into account by the courts and other government bodies and aim to provide explanations regarding the application of certain provisions of the law, guide practice. Codes are issued by various bodies (Secretariat of State for Employment, Advisory Service for Conciliation and Arbitration, Commission for Racial Equality, Equal Employment Opportunity Commission, Occupational Safety and Health Commission) under the express direction of laws and are subject to approval by both houses of Parliament .
There are currently codes of practice covering picketing, the provision of information to trade unions for collective bargaining, the right of trade unionists to use working time for the performance of their duties, disciplinary practice and procedure, measures against discrimination on the grounds of race and sex, and the formation of safety committees. and the functions of trade union labor inspectors, the procedure for voting in connection with a strike.
The source of labor law is the acts of entrepreneurs, in particular the internal labor regulations issued by them alone.
Judicial practice (common law) is of great importance. The UK is a country of case law and applies the principle of stare decis, which obliges lower court judges to follow rules derived from decisions in similar cases previously rendered by higher court judges. If the court makes a decision on any issue, then the courts are equally
higher and lower instances are obliged to be guided by the grounds of the decision made when considering similar cases.
Common law (case law) regulates many aspects of the employment contract, apprenticeship contract and, to a certain extent, the position of trade unions and strikes.
The peculiarity of British labor law is that, as a result of centuries of struggle, the working class achieved legislation in Parliament that repealed certain provisions of the common law, which was generally hostile to workers. For example, the legalization of trade unions and strikes occurred as a result of the passage of laws that abolished or limited the application of common law doctrines and judicial precedents against the rights of association and collective action against trade unions and their activities.
Collective agreements are a unique source of British labor law, which has greater specificity compared to other countries. By their legal nature, they are a kind of gentlemen's agreements that have moral force, rather than a legal contract. Their enforcement through ordinary judicial procedure is impossible. Thus, the implementation of collective agreements is not secured by legal sanctions. In terms of legal characteristics, the resolutions of the so-called Whitley committees - joint bodies of workers and administration in the public service - are close to collective agreements.
Customs as a source of labor law play a significant, albeit auxiliary, role. These are informal rules that are traditional in many industries and are often fixed in collective agreements. They may concern such issues as the number of industrial apprentices, classification of workers, working hours, regulation of overtime, relations between trade unions and their members.
At the beginning of 1998, the UK had ratified 80 ILO conventions.
France. Sources of labor law: Constitution, Labor Code, laws, decrees-laws, ordinances, regulations of the government and the Ministry of Labor, collective agreements, internal labor regulations, judicial practice, customs, ratified ILO conventions.
The text of the current Constitution of the French Republic of 1958 does not proclaim the rights and freedoms of citizens. Only in
The preamble to the Constitution indicates the commitment of the French people to human rights, as they were defined by the Declaration of the Rights and Freedoms of Man and the Citizen of 1789, confirmed and supplemented in the preamble to the Constitution of 1946. This gives grounds to believe that the Constitution of 1958 left the preamble in force to the Constitution of 1946, which proclaimed the most important socio-economic rights: the right to work (“everyone is obliged to work and has the right to obtain a position”) 1, equality of all citizens in the field of labor (“no one can in his work and in position to be oppressed because of their origin"), equality of women and men ("the law guarantees women equal rights with men in all areas"), the right to organize in a trade union ("every person can defend his rights and his interests through a trade union organization and belong to a trade union of their choice"), the right to strike ("the right to strike is exercised within the framework of the laws that regulate it"), the right of workers to collective agreements and to participate in the management of the enterprise ("every worker, through his delegates, takes part in collective determining working conditions, as well as in managing an enterprise").
The provisions of the preamble of the Constitution are considered norms that have direct force and form an integral part of the French legal system. According to the Constitution, laws can only determine the fundamental principles of labor law. Issues outside the scope of legislation are resolved administratively (Articles 34, 37). Thus, the Constitution leaves parliament the right to develop only general principles of legislation. The implementation of the principles has been transferred to the government. Laws approved before the entry into force of the Constitution can be amended by government decrees (Article 37). The Constitution does not allow the adoption of parliamentary proposals that cause an increase in budget expenditures (Article 40). The government can receive from parliament
1 The proclamation in a number of Western constitutions adopted immediately after the Second World War of the right to work and the obligation to work reflected the influence of socialist ideology and the experience of the USSR. However, in the West, the concept of the right to work and the obligation to work was initially given a different meaning than in our country. Labor was understood as any professional activity, including entrepreneurs, independent workers, and most importantly, the noted concepts completely excluded non-economic coercion. The emphasis was on the right to free labor.
the power to issue by ordinance norms that are usually the subject of legislation (Article 38).
The Labor Code systematizes the most important legislative acts on labor 1 .
Among the newest legislative acts not included in the Labor Code are the Law on Youth of October 16, 1997, the Law on Measures against Illegal Forms of Employment of March 11, 1997.
Some labor standards are contained in specialized codes (the Rural Code, the Merchant Seafarers Labor Code, the Overseas Labor Code). A number of issues of labor law are regulated in the Civil Code (its norms, in particular, are widely applied to employment contracts).
A large place in French labor legislation is occupied by acts issued by the government under the delegation of parliament. These are decrees-laws (during the Third and Fourth Republics) and ordinances (during the Fifth Republic).
Decrees of the government, ministers, and prefects play an important role as a source of labor law. Decrees of ministers, as well as prefects, determine the rules for applying laws to specific industries or regions. The decrees of the Minister of Labor extending the validity of collective agreements are of great importance. Mainly, the decrees set out the rules on safety and industrial sanitation.
Collective agreements are concluded on an industry scale or within enterprises. There are also industry-wide collective agreements (nationwide inter-confederal agreements) and regulating issues such as severance pay, unemployment benefits, vocational training, collective dismissals, vacations, maternity benefits.
Thus, collective agreements are divided into national, sectoral, regional and collective agreements of enterprises. They contain provisions relevant to all categories of workers. Special additions concern workers, craftsmen, engineers, etc.
Internal labor regulations include rules on employee discipline, working hours, safety and industrial sanitation, hiring and dismissal and must be adopted in industry.
1 For the French Labor Code, see p. 38-39.
small enterprises with at least 20 employees. These rules are developed by the head of the enterprise. The latter is only obliged to inform the enterprise committee and staff delegates about their contents, listening to their opinion, which may not be accepted. The rules must be posted for public viewing. One copy of them is transferred for safekeeping to the labor court.
The most important sources of labor law include decisions of the highest court - the Court of Cassation, as well as decisions of the Constitutional Council, which determines which issues relate to the fundamental principles of labor law and are therefore the prerogative of parliament. The Constitutional Council checks the conformity of acts adopted by parliament with the Constitution. A specific source of labor law is decisions of administrative justice bodies, and above all its highest body - the State Council.
The use of arbitration in the field of labor law in France is relatively rare. In terms of legal force, decisions of arbitration bodies are equivalent to collective agreements.
Custom as a source of labor law plays a supporting role. In some cases, the law itself refers to custom (for example, regarding the notice period for dismissal); custom also applies when a particular issue is not regulated by law (for example, a probationary period when hiring). The binding force of a custom is based on the will of the parties who adhere to this custom for a more or less long time.
The role of international conventions as a source of labor law is determined by Art. 55 of the Constitution, which recognizes international treaties as having priority over domestic laws if these treaties are duly ratified and applied by the other party. At the beginning of 1998, France had ratified 115 ILO conventions.
Germany. Sources of labor law: The Constitution of Germany and the constitutions of individual states, codification acts, laws, regulations of the government and other government bodies, collective agreements, factory agreements, internal labor regulations, judicial practice, customs, ratified international labor conventions.
The Constitution (Basic Law of the Federal Republic of Germany of 1949) almost completely lacks articles proclaiming socio-economic rights, which are considered to be derived from the declaration
regulated in the general form of civil liberties. Thus, the legal justification for the freedom of trade unions is the right to association, which applies not only to trade unions, but also to the organization of entrepreneurs. The right to strike is based on the constitutional right to association (Article 9) and the free development of the individual (Article 2).
The constitutions of the German states contain special articles related to the labor rights of citizens. They proclaim the right to work (along with the obligation to work), the right to fair and equal wages, and the right to strike. These norms are in most cases included in constitutions adopted immediately after the collapse of fascism. They reflected the strengthened positions of the working class, trade unions, and left forces during that period.
The Constitution gave the right to issue labor laws to both the German parliament and the state parliaments. However, according to the Constitution, “the Länder have the right of legislation only if and to the extent that the federation does not exercise its rights of legislation.” Almost all labor laws are passed by the federal parliament. Land laws that contradict federal labor laws are declared invalid (Article 31).
The source of German labor law is the codification acts: German Civil Code, Commercial Code, Industrial Charter, Prussian General Mining Law.
The rules of the German Civil Code apply primarily to employment contracts. In particular, employment contracts are subject to the general principle according to which legal acts that contradict “good morals” are recognized as invalid (Article 138); the provision that contracts must be interpreted on the basis of the principle of integrity, taking into account customs (Article 157), as well as numerous rules relating to contracts for the hiring of services (Articles 619-630). The Commercial Code regulates employment contracts for trade workers and sales representatives (Articles 59-83). A number of norms of the Industrial Charter (Articles 105-139) regulate employment contracts for industrial workers and their labor protection, as well as industrial apprenticeship agreements. The Prussian General Mining Law (valid throughout the Federal Republic of Germany) contains rules relating to the employment contract and labor protection of miners.
The main labor laws in force include: the Collective Bargaining Act 1949 as amended in 1969, the Assignment of Workers Act 1972, the Assistance in Security Act
4 Kiselev I. I 49
Work Law 1969, Vocational Training Act 1969, Enterprise Constitution Act 1972, Minimum Holidays Act 1963, Home Work Act 1951, Youth Labor Protection Act 1976, Labor Protection Act 1976 protection of workers' rights during dismissals 1951, as amended in 1959, Law on Employee Participation in Enterprise Management 1976, Law on Labor Protection for Persons with Disabilities 1986, Labor Justice Law 1953 as amended 1979, Law on Minimum Conditions of Work Act 1952, Employment Promotion Act 1985, Hours of Work Act 1994, Protection of Workers from Sexual Harassment at Work Act 1994, Black Market Labor Act 1995.
Labor regulations issued by the federal government or individual ministers generally concern the application of laws.
Labor laws adopted in the states are mainly devoted to the regulation of annual paid leave, and federal administrative regulations are devoted to safety precautions and industrial sanitation.
The importance of collective agreements as a source of German labor law is due to the significant development of collective bargaining labor regulation and the breadth of content of collective agreements that regulate most working conditions. By their legal nature, there are differences between ordinary collective agreements that apply to the members of the organization who concluded them, and agreements that have received generally binding force by decrees of the Minister of Labor.
In Germany, there are various types of collective agreements (separately for workers and employees), covering branches (sub-sectors) of industry, usually within the state. There are different basic collective agreements containing rules on working hours, overtime pay, vacations, etc.; agreements on classification of work and piecework; agreements on workers' wage rates; employee salary agreements.
Factory agreements between the enterprise administration and works councils became widespread. They regulate the procedure for concluding and terminating individual employment contracts, contain standards on safety precautions and industrial sanitation, and on work and rest schedules.
Close to factory agreements are the internal labor regulations, which are concluded by the administration and
works councils and include rules on working hours, terms and place of payment of wages, disciplinary rules, and also establish a vacation schedule.
A significant role in the legal regulation of labor in Germany belongs to the governing decisions of the Federal Labor Court. They not only guide judicial practice, but also complement the current law and even make changes to it. Thus, many general provisions defining the rights and obligations of the parties to an employment contract are specified in court decisions. The same applies to the regulation of collective labor conflicts and strike struggles.
At the beginning of 1998, Germany had ratified 75 ILO conventions.
Italy. Sources of labor law: Constitution, laws, legislative decrees, decrees-laws, regulations of the government and the Ministry of Labor, collective agreements of the fascist period, modern collective agreements, internal labor regulations, customs, ratified ILO conventions.
The work is intended for students, diplomats, legal advisers and employees of ministries of foreign affairs. However, it is also addressed to members of delegations negotiating international treaties, or any other persons who may provide advisory services on the referral of any controversial issue to Labor Law in the USA and Great Britain. The history of the formation of labor relations in the UK and the USA is analyzed. The concept of an employment contract, working time and rest time, wage regulation, social insurance and other components of labor law in the above countries are considered.
Keywords: Labor law, employment contract, social security.
Key words: employment low, employment contract, social security.
In total, there are three models for regulating labor relations: continental, Anglo-Saxon and Chinese.
The UK and the US belong to the Anglo-Saxon model of labor relations regulation. This model is characterized by greater convergence of labor and civil law, greater freedom for the employer in the hiring and firing relationship, and greater differentiation in wages. This model is associated with the dynamic creation of new jobs, lower unemployment and higher rates of economic growth compared to other regulatory models.
Today, Great Britain and the USA are the most economically developed countries.
A comprehensive analysis of modern trends in the development of labor legislation is impossible without studying the process of its formation, so it is necessary to make an excursion into history.
The legal regulation of labor relations in England dates back several centuries, but the employment contract in its current understanding - the main regulatory source of relations between the parties - is not much more than 150 years old. Before this, the relationship between employee and employer was considered to be that of master and servant.
It is worth noting that it was in England that for the first time in the world laws were issued that established the length of the working day, as well as special working conditions for women and children. In addition, the Institute of Insurance of Workers against Occupational Accidents was created in England. And in order to monitor compliance with factory legislation, the institute of factory inspection was established, which was supposed to monitor the implementation of laws in factories and punish for violations. The effectiveness of factory legislation largely depended on the work of factory inspectors.
The emergence of factory legislation in the 19th century was a unique phenomenon that influenced the formation of similar laws in other European countries, as well as in the Russian Empire.
The creation of factory legislation was not easy, since Great Britain was the first country to think about regulating relations between employees and employers, so they became pioneers in this area and, as a result, it had no practical experience.
The first independent factory law was issued in 1802, it was the Law “On Health and Morals”, which included age restrictions. According to this law, children under 9 years old had to go to school and were prohibited from working. Children aged 9 to 13 could work no more than 8 hours. And children from 14 to 18 are no more than 12. On Sundays, children could not work, they had to attend Sunday school. Boys and girls had to be housed separately from each other. Children had to be instructed in safety rules. Factory owners had to organize medical examinations to prevent the spread of infections. Now these rules may seem obvious and even very cruel, but for that time it became a real revolution protecting the health of children and students. There were even penalties for violating the law, in the form of a fine of 2 to 5 pounds sterling.
Before these laws were passed, at the beginning of the 19th century, the legal position of factory workers in England was very difficult. At that time, such an institution as the workhouse was widespread in England (an institution akin to the house of industriousness in Russia); the internal order of the workhouse was not much different from prisons. After many years of struggle with the Government, the act of Thomas Gilbert was finally adopted to place only the elderly and helpless in such institutions and provide financial assistance to everyone else. This was the first act that improved the condition of the workers; all statutes passed before only worsened their situation.
Further development of the employment contract took place in the same direction. In the 20th century, the labor contract lost its class character; now not only factory workers, but also steel representatives of the middle class (doctors, teachers) were recognized as employees.
So, the 19th century can be considered the moment of the birth of the modern labor contract in England; we are convinced that it was England that became the founder of legal relations between employer and employee, and was the first to seek to protect the rights of workers. Many of the basic principles of the employment contract developed by the 19th century courts regarding pay and dismissals are still in effect today.
The 19th century in the United States was marked by mass strikes of the labor movement, which covered almost the entire country. This contributed to the adoption of the first legal acts. They regulated issues of employment of women and children. They were given the right to shortened working hours. Laws of the late 19th and early 20th centuries were adopted mainly against the activities of trade unions. Work meetings and gatherings were declared illegal and viewed as an obstacle to the free development of the market. In the early 30s of the twentieth century, the rights of the American proletariat began to be recognized. From the mid-twentieth century to the present day, the main document regulating the legal relations between employee and employer is the US Constitution. It serves as the basis for federal and state labor laws
Let's figure out what the situation is today!
It is worth immediately noting that currently in English law, an important problem of an employment contract is the problem of distinguishing it from related civil legal contracts, for example, work contracts, agency contracts, partnership agreements.
Thus, the concept of an employment contract in England can only be derived through an analysis of court decisions in specific cases, since although most of the provisions of modern labor law in England have their source in acts of parliament and government regulations, the concept of an employment contract is still revealed through judicial precedents. Although the definition of an employment contract is enshrined in an Act of Parliament. Paragraph 2 of Article 230 of the Law “On Rights in the Field of Employment” defines an employment contract as an apprenticeship contract, expressly expressed or arising from the situation, concluded orally or in writing.
This definition does not have sufficient clarity for uniform application in practice, which in essence English law has never achieved, the definition must be flexible and transformative, since the UK is a country of case law, and the principle of stare decis is applied there, which obliges judges of lower courts to follow rules arising from decisions in similar cases previously rendered by judges of higher courts. If the court makes a decision on any issue, then courts of equal and lower instances are obliged to be guided by the grounds for the decision when considering similar cases.
Currently, the court most often adopts the principle of “economic reality”, the essence of which is to consider each case individually.
In the UK there are several hundred labor regulations issued by government executive bodies. They relate to a variety of labor issues, including regulating child labor, taxes on vocational training, issuing licenses for the operation of labor exchanges, determining the procedures for the operation of industrial courts, or affecting specific industries.
A specific source of British labor law are codes of practice, which, although not considered mandatory (their violation does not entail legal proceedings), are taken into account by the courts and other government bodies and aim to provide explanations regarding the application of certain provisions of the law.
Codes are issued by various bodies (Secretariat of State for Employment, Advisory Service for Conciliation and Arbitration, Commission for Racial Equality, Equal Employment Opportunity Commission, Occupational Safety and Health Commission) under the express direction of laws and are subject to approval by both houses of Parliament .
The source of labor law is the acts of entrepreneurs, in particular the internal labor regulations issued by them alone.
Collective agreements are a unique source of British labor law, which has greater specificity compared to other countries. By their legal nature, these are a kind of gentleman's agreements that have moral rather than legal force. Their enforcement through ordinary judicial procedure is impossible. Thus, the implementation of collective agreements is not secured by legal sanctions.
In the United States, labor law does not exist as a branch; it is part of business law.
US labor law is made up of federal and state legislation. At the federal level, laws were passed on a variety of labor relations issues. Each state has its own labor laws, which often incorporate federal laws. The most detailed standards have been developed in state legislation regulating the labor relations of employees of state and municipal enterprises, state and municipal employees, city life support workers (utilities, firefighters, building and street cleaning services, garbage collection, transport, road services, etc. .).One of the main sources of US law, valid throughout the United States, is the United States Code. Each section of this Code is devoted to the regulation of a separate group of legal relations.
Section is devoted to the legal regulation of labor relations. 29 USC. It should be noted that the provisions of the US Code of Laws contain cross-references to the provisions of individual laws that have ever been adopted in order to regulate the relevant legal relations, and the provisions of individual laws are partially included in the provisions of the US Code of Laws, therefore, when characterizing the content of each part of Sec. 29 of the US Code of Laws will also refer to certain regulations, for the purpose of execution and compliance with which amendments to the US Code of Laws are adopted
Also, in addition to Sect. 29 of the US Code of Laws in the United States, separate regulations were adopted regulating labor relations.
One of the fundamental acts in this area was the Fair Labor Standards Act, adopted in 1938. It should be noted that this Law for the first time at the state level in the United States established the rights and responsibilities of workers and employers in the labor sphere. Thus, this Act became the first legal act in US history designed to provide minimum guarantees of wages and other working conditions in the United States. Federal and state legislation regulates the following terms of an employment contract: minimum wage, maximum term of an employment contract, the procedure for payment of wages, duration of working hours during the week, types of rest, minimum duration of annual leave, mandatory overtime pay. All other conditions are established by agreement of the parties or a unilateral decision of the employer (nature and scope of work, work schedule, additional leaves, bonuses, special conditions dictated by the specifics of job duties, etc.). An employment contract cannot contain conditions that contradict the law, and equally cannot worsen the employee’s position in comparison with legal norms.
Working time and rest time
Over its short history, the United States has gone through numerous wars, one of which can be considered the workers’ war for an 8-hour working day and decent working conditions. In 1884, a truly significant event for all workers was adopted - a resolution was adopted, according to which almost all categories of workers achieved an 8-hour working day.
The Fair Labor Standards Act, passed in 1938, limited the regular workweek to 44 hours. Subsequent amendments reduced the regular workweek to 40 hours. However, if, in accordance with an individual contract or collective agreement, it is stipulated that the performance of work requires an irregular working day, then the maximum working time can be 60 hours per week, provided that time worked over 40 hours per week will be paid at time and a half .
The United States is the only one of all developed industrial countries where there is no legally guaranteed vacation. Here, the procedure for submitting leave depends entirely on the employing company. On average, American companies give employees 10 working days of rest per year, but according to statistics, about a quarter of Americans do not have paid vacations or time off, and there are no public holidays in the United States. Each of the 50 states sets its own holidays. Holiday hours for local government agencies and businesses may vary. Whether citizens have a day off or a working day depends solely on the decision of local authorities.
In the UK, the working week ranges from 35 to 40 hours, that is, the UK has a 5-day working system, with a 7 or 8 hour work schedule (depending on the contract). Vacation in the UK lasts only the same as in our country - 28 days. It is worth noting that in the UK, some companies give their employees several “extra” paid days to take care of themselves - visit a hairdresser or beautician, do shopping and other things that a working person often does not have enough time for.
Regulated wages
The official minimum wage in England is 6 and a half pounds per hour.
The leading positions in terms of wages belong to the following professions: doctors, lawyers and financial workers - about 5,000 pounds per month (7 and a half thousand dollars), teachers earn about 2,500 pounds sterling.
A uniform minimum wage for the United States as a whole has not been established; the amount may vary from state to state. The Fair Labor Standards Act states that the minimum wage in the United States cannot be lower than $5.15 per hour (Georgia). The highest wage in the state of Connecticut is $8.7 per hour.
However, for workers under 20 years of age, the wage may be set at $4.25 per hour during the first 90 days of employment with that employer. It can be concluded that this rule significantly violates the rights of workers under 20 years of age to fair wages.
The highest paid profession in the United States is the medical profession, employees of pharmaceutical companies and airlines. In the USA, a doctor earns on average about 14 thousand dollars a month. Also, the highest paid position is the position of a judge, who, depending on the level of qualifications, can receive from 5 to 45 thousand dollars. Teachers and representatives of law enforcement agencies are also considered prestigious and very highly paid professions, their average salary is about 4 thousand dollars per month,
The lowest paid professions are in areas that do not require special qualifications and education - such professions include: nanny, gardener, housekeeper.
When talking about wages, don't forget about taxes. In England, for example, income tax is 10%, it is levied on each employee who earns more than 10 thousand pounds per year, the amount less than 10 thousand is tax-free.
In America, taxes make up about 35% of the salary.
Termination of an employment contract
In the theory of the employment contract in England, there is no uniform classification of the grounds for termination of the employment contract. There are various ways to stop it.
1) Agreement of the parties. Stones have the right to terminate the contract at any time by agreeing to terminate it, in which case neither party will be considered to have violated the contract, and the employee will not be considered dismissed (this method prevents the employee from filing a claim for unfair dismissal in court) the courts carefully ensure that it was the free will of the parties. Termination of the contract upon expiration of the term will not be considered termination of the contract by agreement, it will be considered dismissal due to the expiration of the contract term.
2) Change of situation. In the English theory of contract law, there is a term “frustration”, which means that the contract must terminate regardless of the will of the parties. This may include death of one of the parties, long-term illness, imprisonment, and other events that could not be foreseen at the time the contract was concluded.
3) Execution of the contract. In cases where the contract is aimed at achieving a specific result, achieving this result will automatically lead to termination of the employment contract.
4) Advance notice. An employer may dismiss an employee without explaining the reasons by giving the latter a reasonable period of notice (considered by the courts as a period equal to the frequency of remuneration). Unless otherwise specified in the contract. Most often, this period is replaced with remuneration equal to wages during this period, citing the fact that it is unlikely that an employee warned of dismissal will work with particular zeal.
5) Significant violation of the terms of the contract. If the contract does not state which terms are essential, then they mean a breach of the contract in such a way that the injured party is significantly deprived of what he expected when entering into the contract.
6) Dismissal. An employee is considered dismissed in the following cases
- Direct dismissal - the employment contract is terminated by the employer unilaterally, regardless of whether there was a warning or not.
- Expiration of a contract concluded for a specific period
- Indirect dismissal, the employee terminates the contract due to illegal actions of the employer.
- An employee’s refusal to hire a woman who has returned from maternity leave (is a violation).
In the USA, the principle according to which individual dismissal can be carried out only for good cause is not enshrined in law. It is reflected in collective agreements. When concluding an employment contract, the parties can determine a list of valid reasons for dismissal. The rule requiring the employee to be warned about dismissal is dispositive. In accordance with the law, the dismissal of an employee with whom the contract is concluded for a certain period can be carried out only after warning. If the employment contract is concluded for an indefinite period, the employee may be fired without warning. Collective dismissals are usually associated with the consequences of scientific and technological progress, structural changes in the economy, in the organization of production and labor. The decision on collective dismissals is at the sole discretion of the employer. An employer whose enterprise employs more than 100 people is required to notify the union of the upcoming closure of the enterprise at least 60 days in advance. If dismissed employees apply to the court with a claim for reinstatement and compensation for damage caused by dismissal, and the employer explains this dismissal as a production necessity related to the efficiency of the enterprise, then the courts, as a rule, do not satisfy the demands of all workers. At the same time, the courts are of the opinion that the reinstatement of collectively dismissed workers due to production necessity is a restriction of entrepreneurial freedom. Trade unions, for their part, can only negotiate on reducing the number of persons subject to collective dismissal and on postponing dismissals, but the opinion of the trade union organization is not binding on the employer. In the USA, such a unique form of dismissal is used as temporary dismissal due to lack of work. In this case, the employees are not paid wages, but for a specified period of time (no more than one year), the employees are on the staff of the enterprise, their seniority is preserved, and if the enterprise expands production, they will be able to start working again. After one year, such temporary dismissal becomes permanent.
Social insurance
Pensions. What is only being proposed and discussed in Europe has long become the norm in America. For people of both sexes born before 1942, the retirement age is 65 years. For those born after 1943, the retirement age is 66 years; for people born after 1960, the retirement age is 67 years. No one can guarantee that this line will not be pushed back further. People have the opportunity to receive a so-called “early pension” starting at age 62, but the pension payments will only be 70% of the standard amount. If a person decides to retire at 65, he will receive 86.5% of his full pension. On the other hand, the state encourages those who continue to work after reaching retirement age. In 2010, for each year worked after 66 years, an increase to the official pension of 8% is due. However, in reality, few people choose this path. The size of the state pension depends on how many years a person worked and what salary he received. The amount of tax paid to the social insurance fund depends on the salary.
There are three types of pensions in the UK: state pension, employment pension, personal/private pension. The pension age in the UK for men is currently 65 years, for women - 60 years. By 2018, it will be gradually equalized, increasing it to 66 years by 2020, and then to 68 years. The state pension can consist of two parts: basic and additional. The amount of the accrued basic pension is determined by the length of service - the so-called “qualifying years.” Along with the basic pension in the United Kingdom, an Additional Pension is accrued, which is calculated based on earnings and payments.
Maternity leave
The United States is the only industrialized country that does not have a law guaranteeing paid maternity leave to mothers. Although the US has given some thought to the issue in recent years, several states have decided to pay mothers out of their disability insurance, and California, Rhode Island and New Jersey have passed legislation that guarantees new fathers and mothers up to six weeks of paid leave with deducting a percentage of their regular salary.
Official maternity leave in the UK is 52 weeks, of which 26 are regular maternity leave and the next 26 weeks are additional leave. You don’t have to take maternity leave at all, but young mothers are required to spend at least two weeks with their child after giving birth (four if you work in a factory). The state ensures that the mother retains her job; she has the right to return to her job 26 or 52 weeks after giving birth. If the previous position cannot be provided after 52 weeks, the company is required to offer another position maintaining the levels of compensation and responsibility that the mother had before the maternity leave. Since April 5, 2015, in Britain, both parents have the right to divide maternity leave between themselves - you can take several alternating “shifts”, you can even take 52 weeks in parallel (i.e., both parents can be at home for 26 weeks).
In English law there are no clear criteria developed by legal doctrine for delimiting one branch of law from another (subject and method of legal regulation, legal regime), all branches are of an applied nature, they lack a pandectic system of presentation of legal material (general and special parts) and axiomatic legislative or doctrinal definitions of basic legal terms; public law and private law branches, branches of substantive law and procedural law are not distinguished separately; the content of a particular branch largely depends on the historical source - common law or the law of equity - on the basis of which it was created and developed by English judges. “The absence of a clearly defined division of law into branches is mainly due to two factors. Firstly, all courts have general jurisdiction, i.e. can examine different categories of cases: public and private law, civil, commercial, criminal. Divided jurisdiction leads to the delimitation of branches of law, and unified jurisdiction obviously acts in the opposite direction. Secondly, since in England there are no industrial codes of the European type, the law seems homogeneous to an English lawyer. The English doctrine does not know the discussion about the structural divisions of law,” notes A.Kh. Saidov. All “branches” of English law are of an applied nature, aimed at resolving specific legal problems that are reflected in judicial practice. So, for example, the “subject” of contract law in England includes such issues as the conditions of validity and content of the contract, various categories of void contracts, the legal capacity of minors, the mentally ill, legal entities, such phenomena as errors of fact, misrepresentation, blackmail and other types of illegal influence on the counterparty, fulfillment of contractual obligations, remedies in the field of contract law, etc.; land law studies the types of rights and interests in land ownership, the contribution of common law and equity to the development of land law, land title legislation 1925, statutory restrictions on the rights of the owner of land property, registration of land title, issues of common land ownership, lease and mortgages of land property, etc.; family law - conditions for the validity of a marriage, issues related to the divorce of spouses, judicial recognition of a person as deceased, alimony obligations of a spouse before and after divorce, the legal status of a child, issues related to the division of common property of spouses, domestic violence, state support for the family, etc. . From the above examples it becomes clear that, in essence, one or another branch of English law is a set of practical problems that arise in judicial practice and are resolved in specific court cases. In terms of content, branches of English law may “intersect”; the same practical problems may form the content of different branches of English law. For example, a land property trust is considered both in the course of English land law and in the course of the law of trusts; a contract of sale and purchase, the subject of which is land property, is part of the content of contract and land law in England. This fact does not bother English lawyers, since issues of legal theory concern them much less than issues of practice. Based on the historical source as the basis for the formation and development of a particular branch in English law, we can distinguish branches of common law and branches of equitable law. Branches such as criminal, contract and tort law primarily developed on the basis of common law. English land law and the right of trust property grew on the basis of the law of equity, and therefore they are distinguished by the moral and legal nature of norms and principles and the presence of a wide range of judicial remedies, the application of which depends solely on the discretion of the court. Currently, common law and equity, united by the judicial reform of 1873-1875 into a single judicial case law, also significantly influence the development of various branches of English law. This influence is especially strong in contract, tort, and evidentiary law in England.
Understanding the principle of the rule of law as the unconditional equality of private and public subjects of law before the English court leads to the fact that in English law the classification of industries into private and public law is not recognized as fundamental. At the same time, English lawyers recognize that such areas as constitutional, administrative and criminal law are of a public law nature, while contract, tort, land, family, trust and labor law are of a private law nature. Thus, in the case of O"Reilly v Mackman, such branches of English law as contract law, tort law and property law were called “private law”. In terms of content, English lawyers do not distinguish between material and procedural branches. This circumstance is connected, firstly, with the fact that historically the early common law of England was largely procedural, substantive rules were created later than procedural ones; secondly, it is explained by the peculiarities of legislative technology - the absence of codified legislation and, above all, sectoral codification in English law leads to the fact that most of those adopted by Parliament statutes combines substantive and procedural rules. At the same time, over the past decades, subjects of a predominantly procedural nature have appeared in the curriculum of English law schools. For example, the Law of Evidence in England combines procedural rules governing the consideration. in English criminal and civil courts. The course, entitled “Criminal Justice,” is similar in content to Russian criminal procedure law. In training courses in the discipline “English legal system”, a number of chapters are devoted to legal proceedings in various English courts. Thus, it can be stated that the process of “spin-off” of procedural branches is in full swing in English law, and only the absence of industrial codification in England prevents the final delimitation of material and procedural branches. The concept of “legal rule” in the English legal system is also not as fundamental and often used as in the continental (Roman-Germanic) legal family; there is no generally accepted interpretation of it at the level of legal doctrine. Therefore, the concept of a legal norm is interpreted by English lawyers much broader and more diverse than by continental law lawyers. An English rule of law is any rule of conduct recorded in sources of law and recognized and protected by English courts, regardless of whether such a rule is general or individual in nature. If a rule of conduct in England is not provided with judicial protection, it cannot be interpreted as a rule of law; it may be a moral norm, a religious norm, a local or parliamentary custom, but not a legal norm. According to the subjects of establishment (Parliament, the highest English courts) and the leading textual source (statutes of Parliament, court decisions), English rules of law are divided into precedent, created by judges of the highest courts, and statutory, established by Parliament or bodies to which it has delegated part of its legislative powers. This “duality” of the norms (legislative and judicial) of English law distinguishes them from the norms of Roman-Germanic law, which are contained exclusively in legislation and not in judicial decisions (which are not officially recognized as sources of law, but may have some authority if confirmed by decisions on similar cases). The precedent norms of English law are characterized, on the one hand, by greater casuistry, attachment to the facts of an individual case and less certainty (there is no uniform method for separating them from the composition of the court decision) than the norms of continental law; on the other hand, greater flexibility (i.e., they are easier to change than legal norms) and less abstraction, which allows them to more adequately reflect social relations, and judicial decisions to be more fair, since justice directly depends on taking into account specific situational and subjective factors, i.e. from the presence of greater differentiation of norms. The general nature of the norms of legislation and the presence of norms prohibiting the analogy of law and law in some situations are the reasons for the courts to make an unfair, but from a formal legal point of view, correct decision. If we consider English case law from the point of view of the classical signs of a rule of law adopted in Russia, then it can be noted that the rules of court decisions are also guaranteed by the state and have the attribute of being generally binding, i.e. are binding on all subjects who are within the scope of the rule - in the same situation that the English court considered and created a binding precedent. The formal certainty of precedent norms is less than that of legislative norms, since in England there is no generally accepted method for isolating precedent norms from court decisions, but at the same time, the precedent norm quite definitely indicates the rights and obligations of the subjects of legal relations. English lawyers do not analyze the structure of a precedent rule. Due to the less formal certainty of precedent norms and the absence of a generally accepted method for separating them from the composition of a judicial decision, English lawyers do not distinguish hypothesis, disposition and sanction in the norms of judicial precedents. This structural division of the rule of law is classic for the countries of Roman-Germanic law, where the rules of law are exclusively the rules of written legislation, and not the rules of court decisions. At the same time, it is possible to conduct a brief analysis of the structure of English case law from the point of view of the Russian approach to the structure of the rule of law, although it is quite obvious that such an analysis is quite conditional and is an attempt to apply Russian theoretical categories in English practice. For example, we can say that the totality of legally significant (material) facts, isolated by the judge from the plot of the case, forms a hypothesis of a precedent norm, i.e. those specific life circumstances (conditions), in the presence or absence of which it is realized. It can also be noted that the dispositions of English case law are less abstract than legislative norms on the continent. The sanctions of English case law are always of an absolutely definite nature and are contained in the operative part of the decision in a court case. Statutory norms (legislative norms) in England have the same legal force regardless of whether the act of Parliament is individual (private) or normative (public or hybrid) character. It should also be noted that statutory norms “come to life” only in judicial practice - in order for an English court to apply a norm of a statute of Parliament, it must be interpreted by the highest English court in relation to the essential, legally significant facts of a particular case. Subsequently, to resolve similar cases, English courts will turn to court decisions (interpretative precedents) in which the interpretation of the relevant statutory rule was given. In other words, in the judicial practice of England there is a “fouling” or even “replacement” of statutory rules with casuistic precedent rules, which are called interpretative precedents or declarative (interpretative) precedents. This is exactly what V. Knapp meant when he wrote that “according to the Anglo-American concept, a written (statutory) rule of law is, rather, a certain basis for the creation of rules by a judge.” According to the content, the norms of English legislation can be classified into substantive ones, which determine the rights and obligations of subjects of legal relations, and procedural ones, which establish the procedure for implementing substantive norms. However, this classification is not important for English law due to the fact that, firstly, there is no sectoral codification of English legislation, and, secondly, the vast majority of the statutes of Parliament contain both substantive and procedural rules. That is why the English legal system is not divided into substantive and procedural branches. In English law there is no division of law into private and public. Several reasons for the absence of such a division can be identified: firstly, historically, the common law of England was of a public law nature - it protected only the interests of the Crown (legal fictions were created by common law courts to protect private interests); secondly, English law did not borrow this division of the legal system from Roman law; thirdly, in English law there is a principle of the rule of law, according to which both the state and its individual citizens are equal before the English court, and therefore public subjects of law (state bodies and their officials) should not have any privileges and benefits that private entities (ordinary UK citizens) do not have. The classics of English constitutional law Wade and Bradley believe that the separation of private and public law implies “a rejection of the idea that the state and its organs are subject to law.” Based on the range of persons, English statutory norms are divided into norms of a public nature, which extend their effect to all persons falling under the jurisdiction of English courts, and norms of a private nature, which regulate the behavior of individual social groups (based on professional affiliation, social status, etc.). According to the duration of validity, the norms of English legislation can be classified into temporary and permanent. A characteristic feature of English legislation, understood in a broad sense - as a set of regulatory legal acts of government bodies, is the widespread use of temporary, targeted norms contained in acts of executive authorities (delegated legislation). According to the territory of application, statutory rules are divided into rules that apply to the entire territory of Great Britain (these include most statutory rules) and statutory rules contained in acts of common law reform, which are valid only in England and Wales. A characteristic feature of English legislation is the presence of norms with absolutely definite and absolutely indefinite sanctions. For example, in the criminal legislation of England there are statutes, the articles of which determine one single measure and amount of punishment, leaving no right of choice to the judge (for example, capital murder). At the same time, there are such criminal acts in respect of which Parliament leaves the imposition of punishment at the discretion of one or another judge (absolutely undefined sanctions) - in this case, the judge is guided by the type and amount of punishment that was imposed in similar precedents (if there are such). Statutory rules are distinguished by a high degree of detail, which, apparently, is a consequence of the inductive-descriptive way of thinking of English lawyers, as well as the practical orientation of all English law in general. Also in English law, reference rules are widely used, which undoubtedly complicates the work with statutes.