ARCHIVE FOR 2022 RUSSIAN
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Октябрь 2022
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
A.M. Lushnikov Digitisation of Labour Law and Labour Relations The digitalisation of labour law in this article is considered as
a process of adapting labour relations to the requirements of the
digital economy. The main directions of the evolution of the legal
regulation of this type of social relations are identified. It is noted
that these areas are multidirectional, but in any case, they are
relatively new as a subject of legal regulation. Particular attention is
paid to the specifics of working through digital platforms. The main
consequences of digitalisation in the context of the transformation of
labour relations are considered. In particular, the growth of atypical
labour relations is noted, changes in approaches to labour protection
and personal rights of an employee, to the maintenance of personnel
documentation and the protection of personal data of employees
are analysed, attention is drawn to the problems of distinguishing
between working time and rest time, "erosion" of collective labour
relations, labour precarisation.
Keywords:
digitalisation, labour relations, digital economy, atypical labour relations, precarisation
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K.L. Tomashevski, E.A. Volk Trends in the Development of Legal Regulation of Atypical Forms of Employment in Belarus and Russia in Comparison With the Experience of the European Union The article attempts to identify current trends in the development
of legal regulation of atypical forms of employment in Belarus and
Russia. To achieve this goal, the authors will briefly analyse the trends
that relate to the sphere of work identified in the program reports of
the Director General of the ILO. Particular attention will be paid to the
development of atypical forms of employment in the member States
of the European Union, since in this process they are somewhat
ahead of both Belarus and Russia. The first trend that has manifested
itself since the early 1990s in Belarus and Russia is the expansion
of the use of fixed–term employment contracts. The unlimited use of
fixed-term employment contracts by employers leads to a gradual
precarisation of labour resources, which negatively affects the labour
market, leads to an increase in unemployment, including hidden, and
labour migration. The second trend that has manifested itself in labour
legislation in Russia at first, and later in Belarus in the last 10 years
is the partial legalisation of temporary work with other employers. In
fact, we can talk about a kind of form of borrowed labour. Although in
practice this atypical form of employment is not so common in Belarus
and Russia, but considering the global trends towards its expansion
and in the conditions of modern economic challenges, its use will
gradually increase. The third trend that has come on the agenda in
the last 5 years is the digitalisation of atypical forms of employment,
which is most clearly expressed in working through digital platforms
(gig worker). This trend can also be seen in freelancing, the work of
remote workers (teleworkers), “digital nomads”.
Based on a comparative analysis of legal sources and statistical
data, the above-mentioned trends in the development of legal
regulation of atypical forms of employment are substantiated.
The article makes some suggestions for improving legislation on
atypical forms of employment
Keywords:
labour, atypical forms of employment, fixed-term employment contracts, employees, employers, temporary employment agencies, digital platform, gig workers
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A.V. Egorov Director of a Legal Entity: The Nexus of Civil and Employment Law An employment contract with a director is a special form of
contracts in the field of private law, and the rules of the Civil Code
on transactions and their invalidity, representation, contracts and
obligations should be applied subsidiarily to it.
This allows us to solve many problems that seem unsolvable
according to the rules of employment law due to the lack of
special regulation in it.
The author analyses various difficulties that arose in practice:
how the contract with the director is drawn up; can the actual
admission of the director to work indicate that the employment
contract is considered concluded in all cases; on whose behalf
the Administration of a public legal entity concludes a contract
with the director of a unitary enterprise, who are the parties to
such a contract; whether the director has the right to establish
a bonus for himself personally, etc.
Keywords:
director of a legal entity, employment contract with a director, actual admission to work, bonuses to a director, director of a unitary enterprise, election of a director and conclusion of a contract with him
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N.V. Demidov Submission of the Employee to the Employer as a Sign of Labour Relationships: Problems of Legislation and Practice The article fills a gap in the study of the sign of the employee's
subordination to the employer as a criterion for distinguishing
between an employment contract and a civil law contract.
The practice of implementing relevant norms is analysed.
The well-established interpretation of subordination as compliance with the rules of internal labour regulations is
critically comprehended, a conclusion is made about the breadth
of the category of subordination. Unjustified terminological
choice in court decisions is noted. A recommendation is given
to the law enforcer – to identify the presence of subordination
in four areas: normative, directive, disciplinary, informational.
The content of each of the directions is revealed.
Keywords:
implementation of labour law norms, labour disputes, actual labour relations, hidden labour relations, signs of labour relations, subordination of the employee to the employer
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N.L. Lyutov Platform Employment: Draft New EU Directive and Norms of Russia and Kazakhstan The article provides a comparative analysis of the provisions of
the draft EU Directive on improving working conditions within the
framework of platform employment against the norms, draft laws
and judicial practice of the two most economically developed EAEU
states — Russia and Kazakhstan.
The key problem of the legal status of platform workers is the
possibility of securing the status of employees for them within
the framework of labour law. The article analyses the disputed presumption of labour relations of the draft EU Directive, the rights
of platform workers regarding algorithmic management, protection
from unjustified disconnection from platforms and other rights
in comparison with the norms, draft laws and judicial practice of
Russia and Kazakhstan.
Despite the presumption of the existence of labour relations and the
Supreme Court of the Russian Federation having tendency to qualify
the existence of labour relations based on the facts, judicial practice
shows that platform workers very rarely manage to defend their
labour law status even in situations where signs of labour relations
are present. The draft law currently under consideration by the
State Duma of the Russian Federation concerning one of the most
numerous categories of platform workers — taxi drivers, shows its
authors' complete disregard for the issue of drivers' labour rights.
Conclusions are formulated about the prospects of legal protection
of platform workers in Russia and Kazakhstan, taking into account
the experience of the EU in the future.
Keywords:
platform employment, work through online platforms, digital platforms, digitalisation, labour rights, labour relations, comparative labour law
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V.A. Safonov The Practice of Social Partnership: Current State and Prospects for Improvement The article analyses the current state of social partnership that has
developed in the Russian Federation, provides statistical data on
the number of collective agreements and agreements, examples
of successful collective contractual regulation of labour relations.
The author, despite the conclusion about the reality of social
partnership, analyses the reasons hindering its further development,
the advantages and disadvantages in the activities of trade unions,
the measures that it is desirable for trade unions to take in order
to increase the effectiveness of their representative and human
rights activities, including the need for structural changes within
the trade union movement. In addition to organisational measures,
the author substantiates the need to amend the legislation on social
partnership in terms of clarifying the circle of persons capable
of joining a trade union, establishing mechanisms for checking
the representativeness of a trade union, specifying the scope of a regional agreement on minimum wages, and improving
the mechanism for extending the agreement to employers who did
not participate in its conclusion.
Keywords:
social partnership, trade union, collective agreement, agreement, employer, employees, workers, assembly
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S.A. Saurin Prospects for Further Improvement of Outstaffing Legislation The article deals with modern problems related to the provision
of staff by private employment agencies. Since there is no legal
regulation of the secondment relations by other legal entities,
it is crucial to analyse the options of such regulation including
the example of the bill proposed by the Ministry of Economic
Development of Russia in 2019. The legal nature of the provision
of staff by private employment agencies and the secondment
relations by other legal entities is initially different but has a number
of common basic elements. Therefore, the three-part system
of legal regulation of the provision of personnel appears to be
effective. It includes, firstly, the norms that fix the general features
of relations associated with the provision of personnel; secondly,
the rules governing the procedure and conditions for the provision
of personnel by private employment agencies; and thirdly, the rules establishing the specifics of the provision of personnel by other legal
entities.
Taking into account the possible goals and objectives of secondment
it is possible to reveal the features of relations on the provision of
personnel by other legal entities that are not accredited as private
employment agencies. It is substantial to set a number of special
guarantees for seconded workers in a legal act to protect them from
a potential abuse.
The article contains a number of specific proposals as options for
regulating the procedure and conditions for the provision of staff by
legal entities that are not accredited as private employment agencies.
In particular, it was concluded that the secondment relations by such
entities should be carried out free of charge, only in special cases
(exchange of experience between economically related business
structures) and with observance of the guarantees established by
the law for workers.
Keywords:
provision of staff by a private employment agency, provision of staff by another legal entity (secondment), social partnership in context of the provision of staff, dehumanisation of labour relations, objectives of activities for the provision of staff
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S.Yu. Chucha Prospects for Legal Regulation of Employment in Russia The prospects for improving the legislation on employment in
the Russian Federation are analysed. Two groups of prerequisites are considered: sanctions pressure on the Russian labour market
and changes in the organisation of production and labour in the
course of a change in the technological order. Legislative and law
enforcement methods are proposed to respond to the emergence
of new forms of employment: platform employment using online
platforms (internet platforms, aggregators and marketplaces),
self-employed and other persons working under civil law contracts;
transitional forms of employment — agency work, including
under an agreement on the provision of workers (personnel); as
well as ways to counter shadow (informal and non-conventional)
employment.
Keywords:
employment, technological structure, platform employment, online platform, Internet platform, aggregator, marketplace, agency work, shadow employment, informal employment
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Discussion Board
E.V. Mokhova Recognition of Foreign Bankruptcies in Russia: The Question of the Application of International Treaties on Legal Assistance The article raises the question of which international treaties can
be considered as a condition for the recognition of foreign court
decisions commencing the bankruptcy proceeding. It is concluded
that international treaties on legal assistance in civil cases were
not created as a tool suitable for ensuring the cross-border effect
of collective proceedings. Foreign court decisions commencing
the bankruptcy proceeding cannot be considered as “issued in
a civil case” (civil matters) or “in a civil and commercial case”
(civil or commercial matters), in the sense that these concepts
are embedded in international agreements on legal assistance.
The author raises the problem of public interest in bankruptcy, as
well as the collective nature of bankruptcy, which take this category
of cases beyond the tools created for recognition and exequaturs
on individual civil disputes. The Rubin v. Eurofinance SA case and
its impact on the development of recognition and enforcement of
insolvency-related judgments and on the recognition of foreign
bankruptcy proceedings are analysed. The conclusion is made
about the separation of the insolvency-specific recognition from
the general civil one. This is manifested in the formation of regimes
for both the special recognition of foreign bankruptcy proceedings
and the enforcement of insolvency-related judgments. Cross-border
bankruptcy is developing as a unique sui generis system and is not
reducible to the issue of general civil exequaturs and conflict of laws
rules.
Keywords:
cross-border bankruptcy, recognition of foreign bankruptcies, international agreement, international agreement on legal assistance, collective proceedings, public interests in bankruptcy, insolvency-specific recognition
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Press Release
Theory and practice
Foreign experience
P. Tifin Public Algorithms Legal Status Research: Current Situation and Prospects under French Law The issues of public algorithms are becoming increasingly urgent.
However, the legal status of such algorithms is not yet fully defined.
Researchers and practitioners in different countries are looking
for ways to integrate new technologies into public administration
sphere. The reason for such close attention is that it is the algorithm
that underlies the digital break, often presented as the third industrial
revolution. Not all the consequences of such a change for society,
the economy, and individuals are obvious.
Based on French law, the article attempts to find the legal status of
public algorithms and provides an overview of the current situation
and development prospects. What is the role of the human factor
in algorithm based public decision-making? How to distribute legal
responsibility for the decisions made by algorithms? What is the role
of public decision-makers in algorithm based governance? Finally,
how to challenge algorithmic decisions? The answers are contained
in four main sections.
The first one provides approaches to defining the role of a human
being in algorithmic decision-making. The second one is devoted
to the problems of responsibility related to the use of algorithms
by public authorities. The author analyses possible solutions of responsibility problems, suggests several possible options. All
of them will present two advantages, despite the numerous risks.
First, they will save victims from the consequences of a design flaw
or improper usage of the algorithm, from the obligation to present
evidence of guilt that is difficult to identify and find. In addition,
the proposed solutions will encourage both algorithm designers and
users to double their vigilance, which will inevitably determine their
role in decision-making. The third section contains an analysis of
public decision-makers role in the use of algorithms. The last section
presents approaches to challenging algorithmic decisions.
The article emphasises the importance of a better understanding
by the public authorities of technological innovations and their
consequences for ensuring fundamental human rights and freedoms.
Keywords:
algorithm, legal status, responsibility, publicly significant decisions, public authorities
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A.P. Yevseev, M.R. Yakhina The Prohibition of Slavery and Forced Labour in the Practice of International Courts: General and Special In the article, on specific examples from the practice of
the European Court of Human Rights and international criminal
tribunals, the content of the concept of “slavery” is revealed. Its
forms are investigated, historical evolution is traced, correlation
with legal phenomena close to it in content is carried out.
The authors turn to international legal documents prohibiting
slavery and forced labour, identify the social factors that
caused these prescriptions. It is concluded that the statutes of
the international military tribunals in Nuremberg and Tokyo played
a decisive role in the criminalisation of slavery and forced labour
as crimes under international law. In this context, the III and IV
Geneva Conventions of 1949, adopted after the Second World
War, are touched upon, allowing certain exceptions to the absolute
nature of the prohibition of forced labour in conditions of armed
conflict. The practice of the European Court of Human Rights in
relation to Article 4 of the Convention for the Protection of Human
Rights and Fundamental Freedoms of 1950, which establishes
a ban on discriminatory practices in the field of labour relations,
is analysed. Separate consideration is given to the practice of
the International Tribunal for the Former Yugoslavia, which dealt
with this problem in a number of its decisions. In this regard,
the approaches of various judicial jurisdictions that guard human
rights on a global scale are compared. The final conclusion is
made about the need for a “dialogue” of international courts as
a promising means of overcoming differences in their case law.
Keywords:
prohibition of slavery, enslavement, sexual slavery, forced or compulsory labour, European Court of Human Rights, international criminal tribunals
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