Identification marks are being selected for work – Newspaper Kommersant No. 43 (7488) dated 03/15/2023
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The Ministry of Labor proposes to consolidate in the Labor Code the criteria for labor relations, formulated taking into account the decisions of the plenum of the Supreme Court. This, according to the department, will reduce shadow employment. Employers call the regulation proposed by the department redundant, trade unions, on the contrary, consider it a necessary tool to reduce the number of civil law contracts with employees.
The Ministry of Labor proposes to clarify the criteria for labor relations in the Labor Code. The agency sent a corresponding letter to the Russian tripartite commission for the regulation of social and labor relations (RTK) dated January 16, signed by Deputy Minister Elena Mukhtiyarova (Kommersant has it). As follows from the document, the Labor Ministry prepared an amendment to the Labor Code for the implementation of paragraph 8 of the action plan to reduce shadow employment and legalize labor relations for 2022-2024. According to the Ministry of Labor, in order to combat shadow employment in the Labor Code, it is necessary to separately fix the criteria for labor relations – and if the relationship between the employer and the employee meets at least one of them, they will need to be formalized as labor relations. As stated in the letter, the criteria are formulated on the basis of proposals from the Ministry of Education, the Ministry of Natural Resources, the Ministry of Transport, the Ministry of Construction, Rostrud and Rostekhnadzor, agreed by the Ministry of Emergency Situations, the Ministry of Health and the Ministry of Education and Science. They also take into account two rulings of the Plenum of the Supreme Court – dated May 29, 2018 No. 15 and dated December 23, 2021 No. 45, which define the signs of an employment relationship.
In total, the Ministry of Labor offers a list of five criteria: this is work in harmful and (or) dangerous working conditions (according to the results of a special assessment) or with a high risk of industrial injuries or occupational diseases. It is also proposed to classify labor relations as work that is subject to increased labor protection requirements (instruction at the workplace, internship at the workplace, obtaining a work permit), work on licensed types of activity or requiring accreditation, attestation, certification, examination, special admission and etc. (except for teaching staff). The list also includes jobs that give the right to preferential pension coverage, additional leave and reduced working hours, as well as those that are subject to the requirements of qualification guides or professional standards. The last criterion is work in the field of education with direct interaction with minors.
As Kommersant was told by a representative of employers in the RTK, according to companies, the new norms for regulating labor relations proposed by the Ministry of Labor “can be called redundant.” “If they are adopted, employers will be able to interact with employees only within the framework of labor contracts, which will deprive the Russian labor market of flexibility,” he notes. The trade union side, on the contrary, as follows from the FNPR’s response, believes that the department’s initiative should not only be supported, but also supplemented with new criteria. Without this, they are confident in the union of workers, employers will continue to “abuse the use of civil law contracts instead of labor contracts.”
Anna Ivanova, head of the labor law practice at BGP Litigation, notes that the criteria for labor relations proposed by the Ministry of Labor are redundant and contradictory, and their application in practice will obviously “imbalance the already tense relations between business and the state.” In addition, she emphasizes that the determination of the criteria for labor relations should remain the prerogative of the court, while the inclusion of departmental bodies in the scheme for resolving individual labor disputes will change the nature of labor relations from private law to public.
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