The law of the place where the contract is concluded relates to labor relations. Topic X. Labor relations in private partnership. Law of the place where the act was performed

The subject of RF private law is civil legal relations complicated by a foreign element, in a broad sense, which also includes labor relations. The subject of private law includes only that part of the labor relationship that is of a civil nature (for example, the terms of payments and determination of the amount of wages, regulation of the procedure and conditions for compensation for damage caused to an employee by a work injury).

The system of norms regulating such labor relations forms an independent branch of private law - international private labor law, consisting of substantive and conflict of laws regulations.

Labor legislation of any country is complex and is a complex entity consisting of private and public norms. State intervention in this area legal relations are determined by the need for a certain social policy that ensures a balance of interests of workers and employers. The subject of private international law includes that part of the labor relationship that is of a private law nature (for example, payment conditions and determination of the amount wages, regulation of the procedure and conditions for compensation for damage caused to an employee by a work injury, etc.).

Legal regulation of labor relations with a foreign element is carried out through international treaties, the vast majority of which are Conventions and recommendations of the International Labor Organization (ILO). These international agreements closely intertwine norms of private law and public law, which reflects the specifics of labor relations themselves.

The norms of international private labor law are also contained in bilateral agreements concluded between Russia and foreign countries on issues of admission and placement of citizens to work in organizations, enterprises and associations of contracting states (such agreements are in force between Russia and Bulgaria, Poland, China, Ukraine and other countries).

As a rule, the main set of issues in this area is regulated by the labor legislation of the state in whose territory the labor contract is concluded and the main labor activity takes place.

IN Russian Federation The main regulatory act in the field of regulation of labor relations is Labor Code RF, containing substantive rules (there are no conflict of laws rules in the Labor Code of the Russian Federation).

International labor - This is a relationship complicated by a foreign element. The foreign element may be present either in the subjective composition (the subject of the relationship is a foreign worker or foreign employer), and in the object (the employee’s work takes place abroad, although the participants in the relationship may belong to the same state).

Features of international private labor law are the legislator’s cautious attitude towards the possibility of autonomy of the will of the parties, the tendency to limit it, and focus on protecting the interests of the “weak” party.

Topic X. Labor relations in private private partnership

1. Conflict of laws issues in the field of labor relations

The law regulating labor relations is dual in nature: in addition to the private law element, it also has a public law element. The practice of courts and the doctrine of Western countries are characterized by attempts to distinguish between the application of law to labor relations on issues of private and public law. Some authors (A. Batiffol and others), in accordance with traditional concepts, try to apply general conflict of laws principles of the law of obligations to employment contracts(choice of law parties based on the principle of autonomy of the will of the parties, application of the law of place conclusion of an agreement, etc.), while others (Niboyer and others) highlight issues of a public law nature in relation to which foreign law cannot be applied public law, and are always subject to application rules of the country of work.

The domestic doctrine (A.S. Dovgert) emphasized that labor and civil relations, despite the existing differences, are united general principles private law regulation. That is why general concepts and provisions of private international law are applied to labor relations with a foreign element.

Conflict of laws principles, intended to regulate labor relations complicated by a foreign element, constitute a special group of principles and rules, taking into account the composition of the participants in the labor relationship. In the theory of private international law, international labor relations include relations that are complicated by a foreign element. In international labor relations, a foreign element may be present both in subject composition (foreign worker, foreign employer), and in object (the employee’s work activity is carried out abroad)

In the field of labor relations, the following basic conflict of laws principles have developed.

Freedom to choose law (autonomy of will - lex voluntatis ). This the principle is applied in Great Britain, Italy, Canada, Germany, Poland. For example, according to Art. 32 of the 1965 Polish Law on Private International Law, “parties may subject labor relations to the law of their choice if it is in relation to these legal relations.”

Law of the place of work ( lex loci laboris ). In accordance with this principle, the law of the country of work applies to foreigners. It is enshrined in the legislation of Austria, Albania, Hungary, Spain, Russia, Sweden and other countries. The 1980 Rome Convention on the Law Applicable to Contractual Obligations is based on the same principle. Under the law of the place of work (lex loci laboris) refers to the law of the country of location of the enterprise where the worker works.

Law of the employer's location. In accordance with this conflict of laws principle, if, according to the employment contract the work must be performed on the territory of several states, the law of the location, place of residence or place of business of the employer applies to the employment relationship.

. Vessel flag law ( lex flagi ). Labor agreement of an employee performing service on water or air transport, governed by the law of the country where it is registered vehicle.

Personal law of the employer - individual or legal entity ( lex personalis or lex societalis ). For example, if employees of a Hungarian employer perform work abroad on a business trip or longer-term foreign service, Hungarian law should apply. This principle also applies when the place of work cannot be determined exactly (for example, due to business trips) or the work is to be performed in two or more countries.

Law of the country where the contract of employment is concluded (lex loci contractus). For example, according to the laws of England and the United States, local law applies to labor relations concluded in these countries.

International unilateral conflict of laws provisions are included in Russian labor legislation as a result of a unilateral decision by the Russian legislator on the choice of the law governing international labor relations implemented on the territory of the Russian Federation. For example, article 11 of the Labor Code of the Russian Federation contains a general conflict of laws regulation, based on the criteria of territoriality and national treatment(equality of labor rights) in the regulation of international labor relations: “On the territory of the Russian Federation, the rules established labor legislation and other acts containing labor law standards apply on labor relations involving foreign citizens, stateless persons, organizations created or established by foreign citizens, stateless persons or with their participation, international organizations and foreign legal entities, unless otherwise provided by an international treaty of the Russian Federation.”

In other words, if there are labor relations complicated by a foreign element, Russian labor law should apply to their regulation. It spreads like for foreign workers, working for Russian employers, and for Russians or foreigners working for foreign legal entities and individuals. The conflict of laws principle is the principle of the law of the place of work (lex loci laboris).

Extraterritoriality criterion applies to labor relations where the employer and employee are certain categories Russian subjects rights, but labor activity is carried out outside the Russian Federation, abroad. These relations are the result of differentiation of legal regulation of labor. Thus, the Labor Code of the Russian Federation deals with these relations Chapter 53 "Features of labor regulation of workers sent to work in diplomatic missions and consular offices of the Russian Federation, as well as representative offices of federal executive authorities and state institutions of the Russian Federation abroad."

Conflict of laws rule lex banderae (flag law) should also be applied to employees of transport organizations. In Art. 416 of the Code of Labor Code of the Russian Federation stipulates that the legal status of the ship’s crew members and the relations between the ship’s crew members related to the operation of the ship are determined by the law of the ship’s flag state. This law applies to the relationship between the shipowner and crew members, unless otherwise provided by the contract regulating the relationship between the shipowner and the ship's crew members who are foreign citizens.

Thus, as an alternative conflict of laws rule, the rule on the autonomy of the will of the parties, lex voluntatis (law by agreement, the principle of autonomy of will), is provided. However, taking into account the nature of labor relations, this “autonomy of the will of the parties”, i.e. choice by the parties employment contract rights of a particular country to be applied, limited. Such a restriction is the prohibition of worsening the working conditions of ship crew members in comparison with the norms of state law that should govern these relations in the absence of an agreement between the parties on the law to be applied (Article 416 of the Code of Labor Code of the Russian Federation).

Thus, to date, only the labor relations of employees of diplomatic missions and consular offices of the Russian Federation, as well as members of merchant shipping crews, have unilaterally been subject to special conflict of laws regulation. We are talking about special conflict of laws regulations.

In the Russian private law doctrine there is no unified approach regarding the possibility of applying to labor relations complicated by a foreign element the conflict of laws rules of Section. VI Civil Code of the Russian Federation “Private International Law”. So, according to V.P. Zvekova, the possibility of using a general approach in appropriate cases is not excluded. That is, it is possible that the principle of “autonomy of the will of the parties” is applied, in the absence of agreement regarding the law to be applied, the law of the country with which the labor relationship is most closely related is applied. Lushnikova M.V., on the contrary, believes that the application of the provisions of Section VI of the Civil Code of the Russian Federation is not justified. Unlike civil law labor relations are based on the unity of private and public principles, an integral characteristic of labor relations is to ensure the protection of the employee’s labor rights. On this basis, it is impossible to apply conflict of laws principles designed to regulate private law relations complicated by a foreign element.

However, in Part 1 of Art. 10 of the Labor Code of the Russian Federation contains the legal provision similar to Art. 15 of the Constitution of the Russian Federation: the basic principles and norms of international law and international treaties of Russia in accordance with the Constitution of the Russian Federation are an integral part of the legal system of our country. In Part 2 of Art. 10 of the Labor Code of the Russian Federation specifies that if an international treaty of Russia establishes rules other than those provided for by laws and other regulatory legal acts containing labor law norms, the rules of the international treaty apply.

So, in accordance with Art. 44 Treaty between Russia and Poland on legal assistance and legal relations in civil and criminal matters (1996) the parties to the employment contract can choose the legislation themselves, regulating their labor relations. If legislation is not chosen, then the emergence, modification, termination (termination) of the employment contract and the claims arising from it are regulated by the legislation of the contracting party in whose territory the work is, was, or was to be performed.

That. an international treaty provides for an exception to the general rule, what is permitted by labor law. Despite the fact that there is a general rule enshrined in Art. 11 of the Labor Code of the Russian Federation, if the parties choose Polish legislation, it will apply to the relevant relations even on the territory of Russia.

In the draft Law of the USSR on international private law and international civil process(Article 32), developed in 1989–1990. The All-Russian Research Institute of Soviet State Construction and Legislation proposed the following solution to conflict of laws issues in labor relations: the law of the country in which the work is carried out (fully or predominantly) is applied to labor relations, unless otherwise stated in the employment contract; labor relations of an employee in water and air transport are subject to the law of the country under whose flag the vehicle is used; if the work is performed by a person sent abroad by a Soviet organization, Soviet law applies to the labor relations of this person with such an organization.

In the commentary to Art. 32 “Labor Relations” of the draft it was noted that the article reflects “the most common approach to resolving this issue adopted in modern private international law.”

In fact, the basic formula of Art. 32 subordinates labor relations to the principle of lex voluntatis, and in the absence of a choice by the parties of the applicable law, to the conflict of laws rule, lex loci laboris, widespread in the practice of regulating labor relations - the law of the place of work, designated in legal acts foreign countries as the law of the country in which the work is usually performed (Hungary, Spain), the law of the country in which the employee usually performs his work duties (Switzerland), the law of the country in which the employee usually performs the work (Convention on the Law of Contracts 1980 .). According to the Austrian Private International Law Act, the employment contract is governed by the law of the country where the employee usually performs his work. If the employee performs his work in several countries or does not have a usual place of work, the law of the country in which the employer has his usual place of residence (place of permanent business establishment) applies.

In accordance with the Labor Code of the Russian Federation (Article 416) legal status members of the ship's crew and the relations between the ship's crew members related to the operation of the ship are determined by the law of the ship's flag state. This law applies to the relationship between the shipowner and the ship's crew members, unless otherwise provided by the agreement governing the relationship between the shipowner and the ship's crew members who are foreign citizens.

It should be noted that the law of a number of countries not only does not exclude the possibility of applying the beginning of lex voluntatis in the field of labor relations, but also does not limit the parties in choosing the applicable law (this is the practice of Great Britain, Canada, Germany). Questions about the admissibility of the choice of law are resolved differently, for example, in the Hungarian law, which prescribes that the law of the country in whose territory the work is performed should be applied to labor relations, unless the normative act provides otherwise. And yet, there is a tendency to determine certain limits within which the parties are allowed to choose the applicable law. In the United States, this choice presupposes a significant connection between the applicable law and the employment contract. Swiss law allows parties to subject an employment contract to the law of the country of the employee's habitual residence or the law of the country of the employer's principal place of business, residence or habitual residence.

The effect of the right determined by the choice of the parties to the employment contract may be limited by the requirement that the employee is not deprived of the protection provided to him by the beginning of the lex loci laboris. The Civil Code of Quebec provides: the designation of the parties to the law applicable to the contract of employment does not deprive the worker of the protection afforded to him by the mandatory rules of law of the country where the worker usually performs his work (even if he is temporarily performing an assignment in another country), or, in the absence of such a country, the mandatory rules of law of the country where the employer has his domicile or permanent place of business.

The 1980 Convention on the Law Applicable to Contractual Obligations subjects individual labor contracts (their definition is not provided for in the Convention) to a system of conflict of laws provisions, which include a reference to the law lex loci laboris. Regardless of the provisions of Art. 3 of the Convention, which enshrines the autonomy of the will of the parties as the main principle of conflict, an employee with whom an employment contract has been concluded cannot be deprived of the protection provided to him by the mandatory rules of law to be applied by virtue of paragraph 2 of Art. 6 in the absence of a choice of law. In accordance with the rules of this paragraph, an employment contract, in the absence of a choice of applicable law, is subject to: the law of the country in which the employee usually performs his work under this contract, even if he temporarily performs the task in another country, or, if there is no such country, the law of the country where the company that hired the employee is located. If the circumstances indicate that the contract is more closely related to another country, the law of that country shall apply. The inadmissibility of depriving an employee of the protection provided to him by mandatory rules of law applied in the absence of a choice of law by the parties is discussed in the Introductory Law to the State Civil Code of 1896 (as amended in 1986).

According to Austrian and Liechtenstein private international law, the choice of law applicable to an employment contract is not taken into account if it is detrimental to the employee. "Safety" clauses such as those mentioned are typical for the judicial practice of France, Belgium, as well as for some Latin American countries.

The reference to lex loci laboris (in cases where the parties have not chosen the applicable law) occupies the main place in the system of conflict of laws adopted in the field of labor relations. Other conflicts of law known in this area are: personal law of the parties (common citizenship, common domicile), place entrepreneurial activity employer, conflict principles such as the proper law of the contract, etc.

Features of the actual composition of certain types of labor relations determine the enshrinement in law of special (in relation to, for example, lex loci laboris) conflict of laws rules (in particular for persons working on water and air transport vessels - lex banderae, in relation to persons performing work in foreign business trip - lex delegations). Among the bindings applicable in cases where, according to an employment contract, work is performed on the territory of several states, there are known bindings to the personal law of the employer (Hungary), the law of the main place of activity, place of residence or usual place of residence of the employer (Switzerland).

Due to the fact that the rules of section. VI "Private International Law" of the Civil Code of the Russian Federation is subject to application to civil legal relations complicated by a foreign element, and the Labor Code of the Russian Federation does not contain conflict of laws rules intended to regulate labor relations arising in international life, the question arises: is it possible to refer to the rules of the mentioned section to resolve conflicts of laws in the field of labor relations? The answer to this question is complicated by the fact that the Labor Code of the Russian Federation does not contain provisions similar to the norms of Art. 4 (“Application of civil legislation to family relations”) and Art. 5 (“Application of family law and civil law to family relations by analogy”) of the RF IC. Meanwhile, the subordination of an employment contract with the participation of a Russian person to the norms of foreign law, as practice shows, is not excluded in principle, which may lead to the establishment of Russian court questions about the grounds, conditions and limits of reference to these norms. According to Art. 9 of the Labor Code of the Russian Federation, employment contracts cannot contain conditions that reduce the level of rights and guarantees of employees established by labor legislation. If such conditions are included in the employment contract, they cannot be applied. It seems that in such cases the norms of foreign law authorizing the introduction of such conditions into an employment contract should not be applied. It is decided in a similar way in Art. 16 of the Code of Labor Code of the Russian Federation, the question of working conditions for ship crew members: the choice by the parties to an employment contract of the law to be applied to the relationship between the shipowner and ship crew members should not lead to a deterioration in the working conditions of ship crew members in comparison with the rules of law of the state that should govern the data relations in the absence of agreement between the parties on the applicable law. Article 3 of the Labor Code of the Russian Federation prohibits discrimination in the sphere of labor. Persons who believe that they have been discriminated against in the world of work have the right to apply to the court for restoration of violated rights, compensation for material damage and compensation for moral damage. In these cases, the refusal to apply a rule of foreign law that discriminates against an employee will obviously be based on the concept of a public policy clause established in domestic law, the modern expression of which is the rule of Art. 1193 of the Civil Code of the Russian Federation (“Clause on public policy”).

). The system of norms regulating such labor relations forms an independent branch of international private law - MCCI, consisting of substantive and conflict of laws regulations.

When resolving “maimed cases”, national and international legal presumptions are widely used (common citizenship or common domicile of employee and employer; the law of an institution serving its clients en masse; the law of the court - whoever chose the court, chose the law). Some states have enacted laws extending national workers' compensation laws to foreign workers if they are injured in a local business.

“Mutilation cases” involve compensation not only for material damage, but also for moral damage. In this regard, a problem arises: the specifics, procedure and amount of compensation for moral damage are fundamentally different in the legislation of different states. In the same way, the very definition of the concept of “moral damage” (damage) is very different in national legislation. Currently, it is almost universally accepted that moral damage involves the infliction of physical and moral suffering, and is compensated only in the presence of guilt. Compensation for moral damage is provided in monetary or other material form and in the amount determined by the court, regardless of the property damage subject to compensation.

Migrant workers are compensated for harm caused by a work injury or occupational disease on the basis of international agreements, labor contracts and national laws. In the event of a dispute, the law of the country of employment and the national legislation that applied to the worker at the time of the injury or during the work activity that caused the occupational disease shall apply. It is possible to establish the applicable law based on the autonomy of the will of the parties.

In case of receiving industrial injuries And occupational diseases Employees on a business trip abroad are subject to the law of the country that sent the victim on the business trip. Compensation for damage is made by the company that sent the employee. If harm is caused to such persons not at work or outside working hours The general concept of tortious obligations applies: the law of the country where the tort was committed applies, compensation for damage is made by the person who directly caused it.

Lectures

LABOR RELATIONS IN PRIVATE INTERNATIONAL LAW

on private international law

3. Labor rights of foreigners

4. Labor rights Russian citizens working for foreign employers

1. The concept of international labor relations

The processes of internationalization of production and our entire life lead to the movement of not only goods, services, capital, but also labor. As a consequence of this, in each state, when organizing and using the labor of workers and employees, specific labor relations increasingly arise in which a foreign element is present. Such relations are often called international, although they develop not between states, but between private individuals - mainly employers and employees.

Legal and economic problems of the so-called international labor are becoming very relevant today. Bringing national human rights legislation into line with international standards, the development of foreign economic activity of enterprises and organizations, other processes entail the emergence and increase of such types of labor relations with a foreign element: 1) - labor of local citizens with foreign employers in Russia and abroad (labor emigration of our citizens, work in foreign joint ventures, concluding labor contracts with foreign companies and citizens to perform work in their country, etc.); 2) - foreign business trips of citizens to work abroad; 3) - work at enterprises that are legal entities under national law, but owned by foreign capital and included in the orbit of transnational corporations; 4) - labor of foreigners in Russia on various grounds (labor immigration, work in joint ventures, implementation of a number of forms of economic cooperation, etc.).

National labor law, intended to regulate traditional relations that do not go beyond the boundaries of one state, does not meet the features that characterize the sphere of international labor relations. In the relations under consideration, firstly, the so-called conflict of laws problem arises, when the laws of two or more countries claim to regulate these relations and a choice must be made. Secondly, due to the peculiarities of such relations, in a number of cases there is a need to create special substantive legal norms that would take into account the international factual composition, since general norms for various reasons become inapplicable.

The prevailing doctrine is that these problems should be resolved using the approaches, principles and categories of private international law. Only a few researchers (M. Braginsky, A. Makovsky - Russia, I. Szasz - Hungary) are trying to remove labor relations with a foreign element from the sphere of private international law. As arguments, they point to significant differences between civil and labor law and the inapplicability of some classical provisions of private international law to labor relations with a foreign element.

It should be noted, however, that civil and labor law are united by the fact that these are areas of private law operating in the sphere of relations where there are equal and independent subjects with freedom of choice determined by individual, private interest. Central Institute of Labor Law - the employment contract obviously follows in modern conditions the transition to a market economy can be characterized as a contract of a private legal nature, although it has certain specifics. Labor and civil relations, despite the existing differences, are united by common principles, particularly - legal regulation: equality and legal independence of the parties, discretionary regulation, contractual nature of the emergence and termination of relationships, legal liability.

It is quite natural that the specifics of labor relations require some adjustment of those rules of private international law that initially developed in the field of civil relations with a foreign element. The above is fundamentally important, as it allows us to answer questions arising in the field of international labor with the help of private international law. For example, the question of the concept of international labor relations and methods of their regulation should be considered on the basis general concepts and categories of private international law.

At the same time, the legal arsenal of labor law cannot but influence private international law. Thus, the presence in labor law of a significant number of public law norms leads to frequent reference in international private labor law to the category of public order. An acute question arises about the possibility of applying foreign public law norms. The doctrine of the sources of international private law is supplemented by information about local regulations(collective agreements, personnel regulations, etc.).

The specificity of the legal status of the parties to labor relations leaves an imprint on the norms regulating the law and capacity of subjects of international labor relations. All the main legal categories of modern private international law (autonomy of will, law applied to the form of a transaction, etc.), having passed the “test” in labor relations with a foreign element, are enriched with additional content.

In the legal regulation of international labor relations play an important role international treaties. They may contain either only conflict of laws rules in the field of labor relations with a foreign element, or only substantive legal rules, or both together. There are significantly fewer international agreements that unify conflict of law rules than those that contain substantive rules.

Separate conflict of laws rules of private international labor law are contained in a number of conventions of the International Labor Organization (ILO). Among these documents, first of all, it is necessary to mention dozens of conventions regulating the work of seafarers. As the main conflict of laws, they use the law of the state of registration of the ship (see, for example, Convention No. 22 (1926) on labor agreements sailors).

At the regional or other multilateral level, there are a larger number of conventions and agreements containing “labour” conflict of law rules. The most developed system of such rules is presented in the EEC Convention on the Law Applicable to Contractual Obligations of 1980. Within the EU, a draft convention on the uniform regulation of conflict of laws in the field of labor relations has also been developed and is being considered. In 1970, the UN Economic Commission for Europe adopted the European Agreement on the Work of Crews of Vehicles Engaged in International Road Transport, which uses a conflict of laws mechanism. The Bustamante Code deals with labor law issues in several articles.

Conflict of laws rules are included in many specialized agreements on economic issues.

There are a large number of international treaties at all levels containing substantive norms of private international labor law. Such treaties can be conditionally classified into the following main types: 1) conventions and treaties specifically dedicated to foreign workers and migrant workers (UN International Convention on the Protection of the Rights of All Migrant Workers and Their Families, 1990; ILO Conventions No. 97 (1949) and No. 143 (1975) on migrant workers; European Convention on the Legal Status of Migrant Workers, adopted by the Council of Europe in 1977; Soviet-Chinese Agreement on the principles of sending and accepting Chinese citizens to work in enterprises, associations and organizations of the USSR, 1990; . etc.); 2) international agreements on various aspects of economic, scientific and cultural cooperation, in which labor standards are of an auxiliary nature to achieve one or another goal of an international agreement (General conditions of installation; agreements-statutes on the creation of specific international economic organizations and international governmental organizations; agreements on the basic principles of the creation and operation of joint ventures; agreements on cooperation in the field of education, science and culture etc.); 3) agreements on the working conditions of international transport workers (Convention on the Working Conditions of Rhine Seafarers of 1950; ILO conventions regulating the labor of seafarers, etc.).

The specificity of international labor conventions is that they often establish minimum standards for labor relations. Domestic law may have or have adopted more worker-friendly standards.

The domestic legislation of states regulating labor relations with a foreign element is impressive in volume and numerous in type.

These are primarily sources containing conflict of laws rules for labor relations. These include, for example, laws on private international law.

Legislative practice of various countries recent years shows that these acts, unlike previous periods, began to include provisions on conflict of laws in the world of labor. Special “labour” conflict of laws rules are contained in laws on private international law or in the relevant sections civil codes and other acts of Albania, Austria, Hungary, Poland, Switzerland, Denmark, Spain, Germany.

The current legislation of Russia and most other states of the former Union does not contain conflict of laws rules for international labor relations. There is no doubt that such rules must be developed, preferably within the framework of the codification of private international law.

The sources of substantive legal norms governing labor relations with a foreign element are legal acts about foreigners, immigration, employment, labor of citizens abroad or foreign employers in their territory. First of all, this is the Law on the Legal Status of Foreign Citizens in the USSR of 1981, the Law on Foreign Investments, and the Law on Employment.

In addition, some by-laws adopted in the USSR in the field of international labor relations continue to be in force on the territory of Russia, but with changes and additions made by the Ministry of Foreign Economic Relations in accordance with new Russian laws. These include: Rules on working conditions for Soviet workers abroad, approved by a resolution of the USSR State Committee for Labor in 1974. Regulations on the procedure for opening and operating representative offices of foreign firms, banks and organizations in the USSR, approved by a Resolution of the Council of Ministers of the USSR in 1989, Resolution of the Council Ministers of the USSR on the development of economic activities of Soviet organizations abroad in 1989; Resolution of the Council of Ministers of the USSR on the conditions for sending Soviet specialists to work in international organizations abroad and their material support, 1990; Resolution of the Council of Ministers of the USSR on the procedure for sending Soviet specialists to foreign companies for practical training, 1990, etc.

In the regulation of labor relations with a foreign element, a large place belongs to local regulations - collective agreements, personnel regulations, other acts of joint and foreign enterprises; agreements, charters of joint ventures; various kinds of other foreign economic contracts. The activities of transnational corporations are associated with the emergence of such a specific source as international collective agreements.

2. Conflict of laws issues of international labor relations

The main conflict of law issues of labor relations complicated by a foreign element are: 1) the possibility of applying the generally recognized principle of obligations civil legal relations- autonomy of the will to the labor contract; 2) determination of the system of conflict of laws, with the help of which it is most rational to determine the applicable law to the content and form of legal acts, to the subjects of international labor relations.

Most countries recognize the principle of autonomy of will for labor relations. This is fixed as in legislative acts, and in judicial practice. However, there are different approaches to the question of the limits of its application. First of all, we should highlight a group of countries (England, Albania, Italy, Canada, Germany) that do not limit the freedom of choice of law by the parties to the employment contract. In a number of countries there has been a tendency to restrict this freedom.

Thus, the Austrian Law on Private International Law provides for a mandatory written form of choice; The Polish Law on Private International Law limits the scope legal systems, between which a choice is possible. An important restrictive rule reflecting the current trend in European conflict of laws, is the non-recognition of a choice if it deprives the employee of the protection provided to him by the mandatory norms of the law that would be applied in the absence of a choice. This rule is contained in Austrian law as well as in the EEC Convention on the Law Applicable to Contractual Obligations.

In Russia, the problem of applying the autonomy of the will to labor relations has not been resolved by law, however, in our opinion, at present there are no obstacles to the application of this principle even in the absence of a specific norm based on the analogy of law and the interpretation of a number of legislative acts. (In Ukraine, for example, such rules are already enshrined in the Law on Foreign Investment.)

In the absence of an agreement between the parties on the choice of law applicable to the content of labor relations, the competent legal order is determined using conflict of laws rules, either precisely fixed in legislation and court decisions, or derived from such flexible conflict of laws criteria as the proper Law of The Contract. In practice various states The following main conflict of laws links are most often used: place of conclusion of the employment contract; common nationality, common domicile or location of the parties; place of production activity; place of work.

The most common conflict of law connection for international labor relations is the law of the place of work (lex loci laboris). It is enshrined in the law of Albania, Austria, Hungary, Spain, Switzerland, Brazil, the Netherlands and other countries, in the EEC Convention on the Law Applicable to Contractual Obligations. The trend of applying the conflict of laws criterion of the place of work has emerged in Russia and other states of the former USSR (see legislation and agreements on joint ventures, on the use of foreign labor).

None of the above basic conflict bindings can be universal, i.e. cover all elements of the content of labor relations and all cases of international labor. For example, the law on private international law of Czechoslovakia, along with the lex loci laboris, uses an additional conflict of laws link - the law of the place of business of the employer. The Austrian law on private international law provides that in the event that an employee usually performs his work in more than one country or if he does not have his usual place of work, the law of the country in which the employer has his usual place of business or in which his principal place of business is carried on shall apply. economic activity. For labor contracts of international transport workers, other conflicting criteria are used: flag law - in maritime transport (Albania, Hungary, Italy, France, Germany, etc.); the law of the place of registration of the vessel - on water and air transport (Albania), the law of the carrier - on railway and road transport(Hungary), etc. However, no matter how detailed the differentiation of conflict of laws rules in the law of a particular state is, they still cannot cover the entire variety of labor situations or all elements of labor relations. Therefore, today many states use a general conflict of laws formula in their legislation - the law of the closest connection (proper Law).

Foreign legal experience in the area under consideration can be used in developing a system of conflict of laws rules in the field of international labor relations in Russian law.

3. Labor rights of foreigners

The labor rights and obligations of foreigners are an integral part of their legal status. That's why general provisions domestic legislation on the basics of the status of foreigners are correspondingly applied to labor relations. The legal regime of foreigners is mainly established today by Union legislation - the above-mentioned Law on the Legal Status of Foreign Citizens in the USSR. International treaties concluded by the former USSR also play a major role in determining the legal status of foreigners.

The main principles of the legal status of foreigners are: the principle of equality before the law and the principle of national treatment. The above principles also apply in the field of labor relations involving foreign workers.

The legal status of the latter is defined in more detail in Article 7 of the Law (“Labor activity”), which is devoted to issues of the rights of foreigners to work. They are formulated depending on the stability of the foreigner’s legal ties with the state.

One provision applies to permanent resident foreigners. Naturally, this category of foreigners can work as workers and employees in enterprises, institutions and organizations or engage in other labor activity on a par with local citizens. The law will not provide an explanation of the concept of the term “labor activity,” but based on the analysis of current legislation, labor activity should be understood as: a) hired work in various forms of collective labor of citizens, regardless of the form of ownership - state, collective, private; b) labor based on membership in cooperatives.

In relation to a temporarily staying foreigner, the rule on access to work activity is formulated differently: they can engage in such activity if This compatible with the purposes of their stay in the country (Part 2 of Article 7). Although this rule, unlike the previous one, does not speak about equalizing the rights of temporarily staying foreigners with local citizens in matters of access to work, nevertheless, based on the general provisions of the Law and the interpretation of the entire Article 7, they are also granted national treatment in this area, if restriction on the compatibility of employment with the purposes of their stay. Temporary stayers are the most numerous category of foreigners, which includes persons arriving in Russia on private, official, public or trade business, for treatment and recreation, tourists, students, persons arriving for work in accordance with intergovernmental agreements, etc.

As you can see, the purposes of foreigners’ arrival are very diverse. It is very difficult to determine their compatibility with employment due to the lack of any objective criterion. The solution to this issue depends entirely on the discretion of the administration. Let's say officials enterprises may refuse to hire any temporarily staying foreigner, citing the refusal by the fact that he came to study, rest, etc., and not to work.

It appears that the subjective criterion of compatibility is unsuccessful because it places the foreigner in a position of uncertainty and dependence on the discretion of the employer or other persons. Decisions on access to work for temporarily staying foreigners should not be delegated to millions of employers, since this may infringe on the rights of foreigners, on the one hand, and local workers, on the other. It is necessary that the decision on access comes from the appropriate government agencies, pursuing a unified public policy, as is done in most countries where a procedure for issuing labor permits has been developed.

The legislative practice of these countries knows direct and indirect restrictions on the access of foreigners to work. Direct restrictions include work permits issued to a foreigner to occupy a specific position in an enterprise or to work for a specific employer (Philippines, Belgium, Finland, Germany, Luxembourg, Singapore, Canada, etc.). Access to the labor of foreigners can be limited indirectly by issuing permission by the employer (employment authorization) to hire foreign citizens or by establishing the proportion of national workers in enterprises (Austria, the Netherlands, Panama). The legislation of some countries (Belgium) requires two permits at the same time - for a worker (work permit) and for the employer (employment authorization).

In the context of the formation of a labor market in the CIS countries, the transition to a system of labor permits for foreigners will become inevitable. The question of the specific form of such a system will depend on many factors: the state of the labor market, the size of migration flows, etc. The USSR had some experience in licensing the import of labor. Thus, in the Resolution of the Council of Ministers of the USSR of March 7, 1989 “On measures of state regulation of foreign economic activity” it was established that the attraction of foreign labor in 1989 and 1990. carried out under licenses issued by the State Labor Committee.

“Foreign citizens cannot be appointed to certain positions or engage in certain labor activities if, in accordance with Soviet legislation, appointment to these positions or engagement in such activities is associated with belonging to the citizenship of the USSR.”

Such restrictions are widespread in global legislative practice. ILO Convention No. 143 provides two conditions for such restrictions: they must concern a small category of work and functions; they must be introduced in the interests of the state. Foreign practice in this matter is very diverse. In some States, restrictions on the employment of foreigners apply to certain positions in the national administration or certain positions in the field of national defense and security. For example, in Sweden, the Law on public service 1976 stipulates that foreigners are not allowed to diplomatic service; positions related to international relations and positions that involve the possession of information important to the security of the state or related to important economic interests. In other countries, foreigners are not allowed even to state enterprises(Sudan). General rule is the exclusion of foreigners from public service.

The former USSR also had a number of federal-level legislative acts that did not give foreigners the right to hold certain positions or engage in certain work activities. Foreign citizens could not hold the positions of prosecutors, investigators of the prosecutor's office, public notaries, lawyers and some others. In accordance with Article 23 of the USSR Air Code and Article 41 of the USSR Merchant Shipping Code, foreigners cannot be part of the crew of civilian aircraft and be members of maritime ship crews. However, in both cases, exceptions may be made from these rules in the manner determined by the government. Foreign citizens could not engage in commercial fishing for fish and other aquatic animals and plants in the water bodies of the USSR.

The main principle of the Law on the Legal Status of Foreigners - the principle of national treatment - applies not only to issues of access of foreigners to work, but also to the rights and obligations of participants in labor relations: foreign citizens enjoy the rights and bear responsibilities in labor relations on an equal basis with local citizens.

This means that labor legislation in its unity and differentiation is fully applied to labor relations involving foreigners. That is, foreigners have equal rights and obligations with local citizens established by labor law institutions such as collective agreements; employment contract; working time and rest time; wages, guarantees and compensation, labor discipline; labor protection; women's labor; youth labor; benefits for workers and employees in the management of enterprises, institutions, organizations, etc. Foreigners are also subject to special rules of labor legislation that take into account specific working conditions (for example, the work of miners, metallurgists, etc.); territorial location and climatic conditions (in the Far North, etc.); the nature of the labor relationship between employees and the enterprise (for example, seasonal, temporary workers) and other objective working conditions.

These are the general provisions on the labor rights of foreigners in Russia. The more detailed scope of their rights and obligations depends on the basis of stay. The most common cases of using their labor are work in enterprises with foreign investment and labor immigration.

Legal regulation of the labor of foreigners in joint ventures(and subsequently at enterprises with 100% foreign capital, collectively referred to as enterprises with foreign investment) went through two main stages in its development. The first stage - before acceptance Russian law“On Foreign Investments” - was characterized by the fact that in relation to foreigners, the legislation established a number of preferential rules that differed from the general regulation of labor in joint ventures, in particular rules providing for the possibility in the employment contract with each foreigner to determine the terms of remuneration and issues of granting vacations and pension provision. At the second stage - after the adoption of this Law - the labor and legal status of foreigners in enterprises with foreign investment was equalized with local citizens. Thus, Article 33 of the Law established that labor relations, including issues of hiring and firing, work and rest schedules, conditions of remuneration, guarantees and compensation, are regulated by a collective agreement and individual labor agreements (contracts). Special rules for foreigners concern only a few issues related to labor relations: permission to transfer wages in foreign currency abroad (Part 3 of Article 33); transfer of payments in foreign currency for pension provision to the relevant funds of permanent residence of foreigners and on the terms of these countries (Part 2 of Article 34).

Special substantive labor standards in relation to foreigners remained in local regulations (collective agreements, constituent documents, personnel regulations, etc.) of specific enterprises with foreign capital and international treaties on the basic principles of the creation and operation of joint ventures concluded by the USSR with Bulgaria, Hungary, Czechoslovakia and other countries. For example, the Soviet-Hungarian agreement specifically stipulates that an employment contract for a period of up to 4 years can be concluded with an employee hired who does not permanently reside in the country where the joint venture is located. In local regulations, foreign workers are usually given the right to receive additionally each calendar year several paid days off from work to observe holidays in their countries, to compensate or pay expenses, per diem in connection with the arrival of the employee and members of his family in the country where the enterprise is located, for the payment of various types of one-time benefits. Local regulations or directly in the employment contract also resolve a whole range of social, everyday and cultural problems of foreigners (maintaining connections with their homeland, adapting to local conditions, ensuring a full life for the employee’s family).

At an enterprise with foreign investment, the question arises about the possibility of applying foreign law to labor relations with the participation of foreign workers. The answer to this should be given by conflict of laws rules. Is it possible in the absence of current Russian legislation conflict of laws rules in the field of labor relations with a foreign element, should the employment contract with a foreigner working at such an enterprise include a condition on the application of foreign law to certain aspects of labor relations? It seems that if special legislation provides for the possibility of agreeing on most working conditions in employment contracts with foreigners, it would be logical to conclude that these conditions can be determined by foreign law chosen by the parties to the employment contract. The Ukrainian legislator followed this path. The Law on Foreign Investments of March 13, 1992 provides that labor relations with employees who do not permanently reside in Ukraine are subject to the law of Ukraine, unless the parties to the employment agreement (contract) at the time of its conclusion or on the basis of a subsequent agreement choose the law of the country , which will regulate individual elements of labor relations. The choice by the parties of the law governing labor relations is valid if the chosen law has a close connection with labor relations and does not worsen the situation of workers in comparison with the conditions provided for by the legislation of Ukraine. Foreign law does not apply to matters subject to mandatory norms labor law of Ukraine.

As for labor immigration, the former USSR had some experience in regulating it. Problems of labor movement were considered primarily within the framework of CMEA, where international labor migration was determined not only by the need to solve a number of economic problems through joint efforts, but also by differences in the degree of tension in the labor force balances of individual countries. The experience of legal regulation of labor migration is clearly visible in the example of the labor of Vietnamese citizens, as the largest group of foreigners (in some years up to 90 thousand people) who worked at enterprises in Russia, Ukraine and other countries.