Enhancing the Diff erentiation of the Russian Labour Legislation

Svetlana Yu. Golovina, Doctor of Law, Professor,Head of Labour Law Department, Ural State Law University, Yekaterinburg, Russia

The article examines the current processes of labour law diff erentiation based on the analysis of the recently adopted special rules of Russian labour legislation. It also deals with the diff erentiation of legal regulation in the sphere of labour relations of certain employees’ categories (teaching staff , medical personnel, athletes). The RF Labour Code does not contain provisions on labour regulation in the said sphere, so the diff erentiation is done on the basis of other federal laws and specifi c sources of labour law. The author concludes that new directions of diff erentiation show that the tasks and the objectives of labour legislation tend to expand.

Key words: diff erentiation of labour legislation, grounds for diff erentiation, limits of diff erentiation.

The legal foundations for the differentiation are laid down in Art. 252 of the RF Labour Code. This article states that peculiarities of labour regulation depending on the nature and conditions of work, psychophysiological features, climatic conditions, family responsibilities, and other grounds are established by the labour legislation and other normative legal acts containing rules of labour law, collective agreements, and local normative acts. The legislator makes a significant reservation:  special features of labour regulation leading to   reduction of social safeguards for workers as well as an increase in financial and (or) disciplinary liability may be established only by the RF Labour Code or in cases and under the procedure prescribed by this Code.

The practice of the past two years shows that the differentiation of Russian labour legislation is becoming a permanent process resulting in the increase in the number of special norms that provide specific rights and duties for certain employees.

The RF Labour Code adopted in 2001 devoted an entire section to the specific features of labour regulation of certain employees’ categories. The section included 16 chapters that differentiated the legislation on various grounds, such as traditional (gender and age, a branch of work, territory) and new ones that appeared with the new socio-economic realities (a legal form of the employer, a special legal status of the employee). In 2008, new Chapter 54.1 “Special Features Governing the Work of Athletes and Coaches” was included in the Code[1]; in 2011, new Chapter 51.1 “Specific Features Governing the Work of Employees Working Underground” appeared in the Code[2]; the year of 2013 was marked by new chapter 49.1. “Specific Features Governing the Work of Remote Workers”[3].

Chapter 55 of the RF Labour Code “Specific Features Governing the Work of Other Employee Categories” is constantly being renewed. The chapter is devoted to persons whose legal status peculiarities do not need a separate structural unit in the Code and, as a rule, are described in one article. In 2010, new Art. 349.1. “Specific Features Governing the Work of Officials of State Corporations and Companies” was introduced into the Code[4]; in 2012, the legislator introduced Art. 349.2. “Specific Features Governing the Work of Employees of the Russian Federation State Pension Fund, Social Insurance Fund of the Russian Federation, Federal Compulsory Healthcare Insurance Fund,  other Organizations Established by the Russian Federation under Federal Laws, and Organizations Established to Implement the Tasks Facing the Federal Government Organs”[5]. The legislators also set a new obligation for heads of government (municipal) bodies to annually present information relating to income derived and property owned as well as property liabilities of their spouse and underage children (part 4 Art. 275 of the RF Labour Code)[6]. In 2013, two new articles, such as Art. 351.2 “Specific Features Governing the Work of People Whose Activity is Connected with 2018 FIFA World Football Cup in the Russian Federation and 2017 FIFA Confederations Cup”[7] and Art.  351.3 “Specific Features Governing the Work of Employees in the Sphere of Conducting Special Assessment of Working Conditions”[8]. In the last two cases, the RF Labour Code did not really use any peculiar rules regulating the labour of employees’ categories mentioned in Art. 351.2 and Art. 351.3. Both norms are blanket and only inform the enforcers that the work of people connected with international football events of 2017 and 2018, as well as the work of experts in the sphere of special assessment of working conditions, is regulated by the corresponding federal laws. It seems as if there was no need to include these two novelties into the Code as Art. 5 of the RF Labour Code provides that the regulation of labour relations and other relations directly connected with labour is done by the labour legislation that consists of the Labour Code and other federal laws, and the laws of the RF subjects that contain rules of labour law. 

Besides the RF Labour Code, the differentiation process involves certain federal laws of other sectors. For example, Federal Law No. 273-FZ “On Education in the Russian Federation” (hereinafter referred to as the Law “On Education”) of 29 December 2012 significantly complements Chapter 52 of the RF Labour Code “Specific Features Governing the Work of Teaching Staff ” and, which is most significant, gives the definition of the “teaching staff”. Teaching staff are individuals that have labour and working relationships with organizations conducting educational activities and perform their educational and upbringing functions and (or) organise educational activities (para 21 Art. 2 of the Law). The legal status of an educational worker includes academic rights and freedoms and labour rights, social guarantees and compensations, limitations, duties, and liability (para 1 Art. 47 of Law “On Education”). Specific duties of pedagogical staff are related to their working activity. The duties are: to comply with moral, ethical, and professional ethics requirements; to improve the professional knowledge regularly (Art. 48 of the Law “On Education”).  

Para 6 Art. 47 of the Law “On Education” clarifies the definition of working hours for educational workers that should (depending upon their position) include educational (teaching) activity, pedagogical work, individual work with students , scholarly, creative and research work, as well as other kinds of work stipulated by e job requirements and (or) an individual professional plan, i.e. methodical, preparatory, organizational, diagnostic work; monitoring work; the work provided for by the plans of educational, sport- and health-related, , creative, and other kinds of events conducted for students.  With the RF Labour Code not mentioning such  a tool  of personnel management as job descriptions, the  rule that certain job responsibilities of teaching staff are stipulated by employment contracts and job descriptions seems to be important. This rule allows to regard the creation of job descriptions foreducational workers in educational organizations as compulsory (in contrast to other employees’ categories). 

The Law “On Education” introduces the notion “conflict of interests” (para 33 Art. 2). Its concept differs from the definition in para 3 Art. 349.1 of the RF Labour Code as it has been modernised according to the specific character of educational relationships.   Conflict of interests of an educational worker is a situation when an educational worker during professional activities has a personal interest in monetary or other benefits that may affect the proper performance of the professional duties because of a conflict between his interests and the interest of a learner, parents (legal representatives) of underage learners. However, the law does not get further than giving the definition and provides no details of conflict resolution.  

The only article of the RF Labour Code that provides some peculiarities governing the work of medical personnel is Art. 350. But they are limited to work and rest schedule. Working relationships of medical personnel are more specific and need additional labour and legal regulation. Such legal institutions of labour law as material and disciplinary responsibility need certain “adjustment” to a specific nature of the legal status of a medical worker, particularly after  the adoption of the Federal Law No. 323-FZ of 21 November 2011 “On RF Citizens’ Health Care” (hereinafter the Law “On Health Care”).

With regard to labour relationships the Law “On Health Care” defines the notion of “a medical worker” as an individual that has medical or other education, works in a  medical organization and carries out medical activities as part of his/her job responsibilities (para 13 Art. 2).

The legal status of medical personnel is defined not so much by the RF Labour Code, but by the Federal Law No. 323-FZ of 21 November 2011  “On RF Citizens’ Health Care” that establishes the rights, duties and the liability of a medical worker. The specific nature of medical personnel’s professional activity involves delivery of health services, i.e. medical intervention or a complex of medical interventions aiming at prevention, treatment and control of diseases, and medical rehabilitation. This characteristic encourages the specific personnel requirements that are formulated as prohibitions, restrictions and regulations. Thus, the Law “On Health Care” specifies additional (as compared with Art. 21 of the RF Labour Code) duties of medical personnel (Art. 73) including the responsibility, in the case there is a conflict of interests[9], to inform the head of health care organization in writing (para 2 Art. 75). Art. 11 of the Law “On Health Care” establishes a special prohibition connected with the professional status of a medical worker and liability for its violation: in no case may medical care be denied. Medical personnel are liable for the denial of medical care in accordance with the legislation of the Russian Federation. They are also subject to disciplinary liability, which is confirmed by court practice[10].

As there are rules for the teaching staff and medical personnel to settle the conflict of interests, then this situation raises a question of such a punitive measure applied to these categories of employees as dismissal because of an employee’s failure to take measures for the conflict prevention or resolution if the employee is a party to the conflict and his actions resulted in the loss of credibility on the part of his employer (para 7.1 Art. 81 of the RF Labour Code). The legislation does not say anything about the duty of a pedagogical worker to inform the employer about the conflict of interests. So, can the failure to inform be regarded as a failure of a pedagogical worker to take measures for conflict prevention? The problem connected with the understanding of law is complicated by the fact that the notion “conflict of interests” is of evaluative character and has no specified limits. Art. 11 of the Law “On Combatting Corruption” is devoted to the procedure of prevention and resolution of the conflict of interests for the civil and municipal service officials, but the RF Labour Code, the Law “On Education” and the Law “On Health Care” do not provide any definite procedures (besides bringing the issue to a labour dispute resolution commission), leaving a number of issues outstanding. The most important issue relates to measures that should be taken by pedagogical and medical workers to prevent and to resolve the conflict of interests.  

The content analysis of the newly adopted laws that provide special rules for specific employees' categories shows that the legislator does not always pursue labour and legal objectives, allowing for legal differentiation. For example, Art. 349.1 of the RF Labour Code aims at combatting corruption as it sets a number of restrictions, prohibitions, and additional duties for state corporation workers ( such as the duty to present information relating to income derived by themselves, their spouses and underage children; the duty to inform the employer about personal interests while performing employment duties that may lead to conflict of interests; the prohibition to be engaged in economic activity; the prohibition to receive remuneration from legal persons and individuals while performing their employment duties). According to Art. 349.2, the workers of the RF  State Pension Fund, Social Insurance Fund of the Russian Federation, Federal Compulsory Health Care Insurance Fund, and other organizations established by the Russian Federation under federal laws, organizations established under federal laws by the Russian Federation as well as workers of the organizations created to implement tasks entrusted to the federal state bodies in cases and according to the procedure established by the RF Government, face restrictions, prohibitions and duties that are set by the Federal Law No. 273-FZ  of 25 December 2008 “On Combatting Corruption”  and other federal laws aimed at combatting corruption.

Art. 351.1 of the RF Labour Code has another purpose. It  prohibits work in the sphere of education, upbringing, development of underage children, organization of their rest and recreation, medical service, social protection and services, in the sphere of children and youth sports, culture and art with participation of underage children, to the people  with criminal records,  under prosecution (excluding those whose cases were dismissed  on exculpatory grounds) for the crimes against life and health; against freedom, honour and dignity of the individual; against the sexual inviolability and sexual freedom of the individual; against family and underage children, against public health and public morals; against the foundations of the constitutional system and security of the State as well as against public security. The aim of this legal rule is to guarantee physical and moral safety (including sexual inviolability) to underage children.

These examples of novelties included in the RF Labour Code allow experts to draw certain conclusions concerning the trends in differentiation of labour legislation.

First, new grounds for differentiation appear and traditional grounds are adjusted.  Such a new ground for prohibitions and restrictions in a job  is  for a person to belong    to public officials[11]. Instead of traditional “sectoral” indicator of differentiation, it is appropriate today to speak about the “sphere of activity.” Organization of relationship between an employer and an employee through telecommunication networks is another new ground giving reason to deviate from traditional rules regulating employer – employee labour relationships. Thus, the law allows having an employment contract with distance workers in an electronic form with the use of enhanced qualifying electronic signature (Art. 312.2 of the RF Labour Code); the employer can  familiarise the employee with local regulatory and other documents through data and communication networks and the Internet (Art. 312.2); the employer does not have to formalise the employment in the employee’s  work record book by the agreement of parties (Art. 312.2); the termination of employment contract with the distance worker is done due to grounds provided for by employment contract (Art. 312.4).

Second, new trends in differentiation give grounds to speak about the trend to expand the goals and tasks of the labour legislation. Modern Russian labour legislation is intended to protect the rights and legitimate interests of employees and employers as it is declared in Art. 1 of the RF Labour Code and to protect state and public interests in general. There are several anti-corruption restrictions relating to the work in the sphere of education and development of underage children for those people who faced prosecution for some crimes. Moreover, in certain cases, special rules of labour legislation are primarily aimed at protecting the interests of other members of society. For example, some provisions restricting transfer of athletes from one employer to another (from one sport club to another), setting rules of sending athletes, coaches to sport national teams of the Russian Federation is nothing but protection of national sport interests, the interests of Russian sport organizations and sport fans.  

The analysis of current labour legislation allows for a conclusion to be drawn that many novelties of the RF Labour Code intended to prevent various offences (especially anti-corruption rules) form the preventive function of labour law.

Third, the so-called “negative” differentiation (specific features of labour regulation that imply the reduction of social safeguards for workers, restriction of their rights, and increase in disciplinary or material responsibilities) is growing. The best example is Art. 348.12 of the RF Labour Code that regulates the rules of termination of employment contract with an athlete and a coach. This article was amended in 2012, providing for the duty of certain categories of athletes and coaches to give the employer at least one-month notice of the termination of employment contract on their own initiative. This provision restricts, to a certain extent, the rights of workers to make use of their   ability to work. Para 3 Art. 248.12 of the RF Labour Code provides for the possibility to set conditions in the employment contract that oblige an athlete to make payment in favour of the employer if he terminates the employment contract on his own initiative without valid reasons. The same is true in a situation when the employer terminates the employment contract on his own initiative for disciplinary reasons. The amount of payment is regulated in the employment contract, and the law does not set the criteria or limits for the payment, so the said allows the employers to abuse these rights.

In this connection, the researches rightly pose the question about the limits of differentiation of labour law to avoid discrimination[12].

Fourth, a specific feature of regulating labour relationships for certain categories of employees is reflected in the use of  non-standard sources to establish rights and responsibilities of the parties. For example, religious organizations have the so-called “internal provisions”. According to Art. 343 of the RF Labour Code, the rights and responsibilities of the parties to employment contract are defined in the employment contract considering the specific features set by internal provisions of a religious organization. The employment contract of religious organization (in accordance with the RF Labour Code and internal provisions of a religious organization) will include terms and conditions that are essential both for the employee and the religious organization as an employer (para 3 Art. 244 of the RF Labour Code). The working hours for the employees of religious organizations are defined in accordance with the conduct of religious services or other religious activities of the organization set by its internal provisions (Art. 345 of the RF Labour Code). Religious organizations themselves, in their internal provisions, set the list of workers with whom they conclude the contract of full material liability Art. 346 of the RF Labour Code). But the notion of “internal provisions of a religious organization” is a complex evaluation category that has no uniform content as there are various beliefs and religious practices. 

The legislator uses a unique way to regulate the work of athletes and coaches. According to Art. 348.1 of the RF Labour Code, when  employers adopt local regulatory documents, they should consider norms set by All-Russian Sports Federations.  According to Art. 348.5 of the RF Labour Code, the employer shall suspend any athlete from a competition if an all-Russian sports organization for a particular kind or kinds of sport demands this suspension in accordance with the norms of this federation. All-Russian sport organizations adopted regulations on reimbursement of expenses connected with the travel of athletes and coaches to and from the location of the RF national sport team, and other expenses connected with their participation in sport events  as members of the team (Art. 348.6 of the RF Labour Code). Art. 348.12 of the RF Labour Code gives right to all-Russian sport federations to set restrictions for the transfer of certain categories of athletes and coaches to other sport clubs and other physical training and sport organizations. These federations can also adopt regulations on the time limit within which the worker should notify the employer about the termination of the employment contract on his own initiative. The above examples illustrate that the law recognises a new source of labour relationships regulation (which is not mentioned in Art. 5 of the RF Labour Code) that are legal acts of sport organizations adopted at the Russian level[13]. These acts, as a rule, are adopted in the form of regulations. They operate only in the sphere of a kind of sport the development of which is exercised by a particular all-Russian sport federation.

In conclusion, the enhancement of the differentiation is one of the modern trends of Russian labour law development arising from the variety of forms of organizing labour in the society and the need to adjust general rules to certain categories of employees.