Labor law does not apply to the following persons. Labor laws do not apply

Labor legislation and other acts containing norms labor law, regulated labor Relations and other directly related relations.

Labor legislation and other acts containing labor law norms also apply to other relations related to the use of personal labor, if this is provided for by this Code or other federal law.

All employers (individuals and legal entities, regardless of their organizational and legal forms and forms of ownership) in labor relations and other directly related relations with employees are required to be guided by the provisions of labor legislation and other acts containing labor law norms.

If relations related to the use of personal labor arose on the basis of a civil law contract, but subsequently in the manner established by this Code , other federal laws, have been recognized as labor relations; the provisions of labor legislation and other acts containing labor law standards apply to such relations.

In the territory Russian Federation the rules established by labor legislation and other acts containing labor law norms apply to 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 herein Code , other federal laws or international treaty Russian Federation.

Peculiarities legal regulation labor individual categories employees (heads of organizations, people working part-time, women, people with disabilities family responsibilities, youth and others) are established in accordance with this Code .

Civil servants and municipal employees are subject to labor legislation and other acts containing labor law norms, with the specifics provided for by federal laws and other normative legal acts of the Russian Federation, laws and other normative legal acts of constituent entities of the Russian Federation on public service and municipal service.

Labor legislation and other acts containing labor law norms do not apply to the following persons(if, in accordance with the procedure established by this Code, they do not simultaneously act as employers or their representatives):

military personnel in the performance of their duties military service;

members of boards of directors ( supervisory boards) organizations (except for persons who have entered into agreements with this organization employment contract);

persons working on the basis of civil contracts;

other persons, if this is established by federal law.

Publications in the press:

July 28th

October 31, 2016

June 13, 2016

March 11, 2016

Majority labor disputes somehow related to wages. The courts determine what compensation a manager should receive upon dismissal, how many times a month the organization is obliged to pay salaries to employees, and who has the right to set the amount of wages to the director. These and other disputes in the latest review judicial practice.

February 5, 2016

Correct filling documents is very important factor in the work of every organization. An incorrectly drafted employment contract can lead to lengthy litigation. The review of judicial practice includes disputes related to employment contracts.

1. Article 11 deals with the scope of labor law. It formulates an important provision that applies to both employees and employers: labor legislation and other acts containing labor law apply to all employees and all employers ( individuals and legal entities, regardless of their organizational and legal forms and forms of ownership), if an employment contract was concluded between them.

This means that the Labor Code, other regulatory legal acts on labor regulate labor relations not only of employees, but also of employees who are participants in partnerships and employee-shareholders. The wide scope of labor law was confirmed by the Supreme Court of the Russian Federation even before the adoption of the commented Code. In paragraph 50-1 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 22, 1992 N 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes” it was stated that the norms of the Labor Code regulate the labor relations of persons working under an employment agreement (contract ) at any enterprises, institutions, organizations, regardless of ownership and organizational and legal forms, incl. labor relations of employees who are shareholders, participants in business partnerships and companies with whom they have entered into an employment agreement (contract), taking into account the peculiarities in the regulation of labor of such persons, provided for by laws about these partnerships and societies. A similar conclusion is contained in the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 20, 2003 N 17 “On some issues that arose in judicial practice when considering cases on labor disputes with the participation of joint-stock companies, other business partnerships and companies." Cases contested by heads of organizations, members of collegial executive bodies of organizations (general directors of joint-stock companies, other business partnerships and companies, etc.), as well as members of boards of directors (supervisory boards) organizations that have concluded employment contracts with these organizations, decisions authorized bodies organizations or owners of property of organizations or persons (bodies) authorized by the owners on their release from their positions, as the Plenum explained, are subject to the jurisdiction of the courts general jurisdiction and are considered by them in order claim proceedings How are things going in labor disputes about reinstatement? Norms substantive law for such cases are Art. Art. 273 - 281 TK. The same position was confirmed by the Supreme Court of the Russian Federation when considering a specific case concerning the relations of partnership participants based on their personal work. The essence of this matter is as follows.

Gladkikh, Kuznetsova and others filed a lawsuit against the Ariadna partnership for recovery wages. Comintern district court The city of Voronezh rejected the claim. This decision was upheld judicial panel Voronezh regional court and the Presidium of the same court. In refusing to satisfy the claim, the courts proceeded from the fact that the legislation and the charter of the partnership do not provide for mandatory labor participation employees of the partnership in its activities and therefore controversial relations between them and the partnership must be regulated by civil law. Supreme Court of the Russian Federation with conclusions courts did not agree. In his opinion, the law clearly distinguished between the relations arising from the employment contract and the relations of the employee with the business partnership arising from membership. IN the latter case This refers to relations related to the creation of authorized and other funds, personal contributions to the property of the partnership, distribution of profits, property liability, which are regulated by civil law. In accordance with current legislation, a participant in a partnership is also its employee if relations with the partnership are related to personal labor and are not limited only to his property contribution and receipt of a portion of the profit. A relationship based on the personal work of a participant in a partnership is the scope of labor legislation (BVS RF. 1993. No. 4).

The scope of the Labor Code and other regulatory legal acts on labor also include relations between employees of joint-stock companies. It does not matter whether such employees are shareholders of these companies. Employee-shareholder dismissed from joint stock company, continues to participate in the general meeting of shareholders with the right to vote on all issues within the competence of the meeting, and also has the right to receive dividends, and in the event of liquidation of the company, the right to receive part of its property. IN joint resolution Plenum Supreme Court RF and the Plenum of the Supreme Arbitration Court RF dated 07/01/1996 N 6/8 "On some issues related to the application of part one Civil Code Russian Federation" states that termination of employment relations with a shareholder does not change the status of this person as a shareholder.

Issues related to labor relations should not be regulated by civil law.

Scope civil legislation- property and related non-property relations, based on equality, autonomy of will and property independence of their participants; the scope of labor legislation is labor and relations directly related to them.

Labor legislation and other acts containing labor law norms regulate labor relations and other relations directly related to them.

Labor legislation and other acts containing labor law norms also apply to other relations related to the use of personal labor, if this is provided for by this Code or other federal law.

All employers (individuals and legal entities, regardless of their organizational and legal forms and forms of ownership) in labor relations and other directly related relations with employees are required to be guided by the provisions of labor legislation and other acts containing labor law norms.

If relations related to the use of personal labor arose on the basis of a civil law contract, but subsequently, in the manner established by this Code and other federal laws, were recognized as labor relations, the provisions of labor legislation and other acts containing labor law standards are applied to such relations .

On the territory of the Russian Federation, the rules established by labor legislation and other acts containing labor law norms apply to labor relations with the participation of 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 this Code, other federal laws or an international treaty of the Russian Federation.

Features of the legal regulation of the labor of certain categories of workers (heads of organizations, persons working part-time, women, persons with family responsibilities, youth and others) are established in accordance with this Code.

Civil servants and municipal employees are subject to labor legislation and other acts containing labor law norms, with the specifics provided for by federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of constituent entities of the Russian Federation on public service and municipal service.

Labor legislation and other acts containing labor law norms do not apply to the following persons (unless, in accordance with the procedure established by this Code, they simultaneously act as employers or their representatives):

military personnel in the performance of military service duties;

members of boards of directors (supervisory boards) of organizations (with the exception of persons who have entered into an employment contract with this organization);

persons working on the basis of civil contracts;

other persons, if this is established by federal law.

Commentary to Art. 11 Labor Code of the Russian Federation

1. The subject of regulation of labor legislation and other acts containing labor law norms is labor relations and other relations directly related to them (see).

2. Other relations related to the use of personal labor are also subject to regulation by labor legislation and other acts containing labor law norms, if this is provided for by the Labor Code or other federal law.

Thus, citizens who have shares in joint-stock companies and participants in business partnerships can simultaneously be members of the company (partnership) as in civil relations deriving from membership and in employment relations (working, for example, as an accountant). The relationship based on the personal labor of the employee-shareholder (participant of the partnership) is the scope of labor law norms.

3. The provisions of laws and other acts containing labor law norms are mandatory for application by all employers, regardless of their organizational and legal forms and forms of ownership.

4. In all cases where the court has proven that actually existing labor relations are formalized by civil law contracts, the provisions of labor legislation and other acts containing labor law standards must be applied to such labor relations.

13. The application of labor law norms also does not apply to persons undergoing military or other service, including under a contract, with the assignment of military (special) ranks. For example, this applies to military personnel in the performance of military service duties (see Federal Law of May 27, 1998 N 76-FZ “On the status of military personnel” // SZ RF. 1998. N 22. Art. 2331), privates and commanding staff internal affairs bodies (see Resolution of the Russian Air Force of December 23, 1992 N 4202-1 “On approval of the Regulations on service in the internal affairs bodies of the Russian Federation and the text of the oath of an employee of the internal affairs bodies of the Russian Federation” // Russian Air Force. 1993. N 2 . Art. 70), officials customs authorities (see Federal Law of July 21, 1997 N 114-FZ “On service in customs authorities Russian Federation" // SZ RF. 1997. N 30. Art. 3586) etc.

Second commentary on Article 11 of the Labor Code

1. The commented article defines the scope of labor legislation and other regulatory legal acts containing labor law norms for a range of persons. This article establishes that labor legislation and other regulatory legal acts containing labor law standards apply to all employees who have entered into an employment contract with the employer. Consequently, the Code, laws and other regulatory legal acts containing labor law norms are mandatory for application throughout the Russian Federation for all employers (legal entities or individuals), regardless of their organizational and legal forms and forms of ownership.

2. The content of this article means that the Labor Code and other regulatory legal acts on labor regulate the labor relations of all employees, for example, those who are participants in business partnerships or shareholders. Therefore, relationships based on the personal work of the participant business partnership, there is the scope of labor legislation. The same applies to employees of joint stock companies. A citizen who has shares in a joint stock company is a member civil legal relations, therefore, it is subject to the rules civil law. But at the same time he may have an employment relationship with this joint-stock company. For example, it does labor function, working as an accountant, legal consultant, etc. Then he simultaneously consists of two types of legal relations: labor and civil law. All this gives grounds to conclude that labor law has a wide scope.

The Plenum of the Supreme Court of the Russian Federation drew attention to the wide scope of labor law norms in its Resolution of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (BVS RF. 2004. No. 6) (clause 8).

3. In accordance with Part 5 of the commented article, foreign citizens permanently residing in the Russian Federation can exercise freedom of labor by concluding an employment contract on an equal basis with citizens of the Russian Federation. Foreigners temporarily staying in the Russian Federation can engage in labor activities if this is compatible with the purposes of their stay in our country.

However, there are some restrictions for foreign citizens and stateless persons. They cannot hold certain positions or engage in certain activities (see Federal Law of July 25, 2002 N 115-FZ “On legal status foreign citizens in the Russian Federation,” as amended on November 11, 2003 // SZ RF. 2002. N 30. Art. 3032; 2003. N 46 (part I). Art. 4437). In addition, Federal Law No. 79-FZ of July 27, 2004 “On the State Civil Service of the Russian Federation” stipulates that civil service Citizens of the Russian Federation who have reached the age of 18 and who own state language RF and relevant qualification requirements and others (SZ RF. 2004. N 31. Art. 3215).

All organizations that are located on the territory of the Russian Federation, regardless of whether they are owned in whole or in part by foreign individuals or legal entities, must apply the labor legislation of the Russian Federation to their employees. However, certain exceptions to the general rule may be established by federal law or a specific international treaty.

Currently, the use of foreign work force in Russia is carried out in accordance with two Decrees of the President of the Russian Federation: dated December 16, 1993 “On the attraction and use of foreign labor in the Russian Federation” (SAPP RF. 1993. N 51. Art. 4934) and dated April 29, 1994 “ ABOUT additional measures on streamlining the attraction and use of foreign labor in the Russian Federation” (SAPP RF. 1994. N 2. Art. 77). These acts provide for a certain procedure for attracting foreign labor. She is hired to work in Russia after issuing the appropriate permit from the Federal migration service, which carries out its functions as part of the Ministry of Internal Affairs of the Russian Federation.

At the same time, foreign citizens from among highly qualified specialists are attracted to labor activity without any permission to work in organizations with foreign investment, operating on the territory of our country, in the positions of heads of organizations, as well as their deputies, heads of departments of these organizations. The same procedure applies to foreign citizens - scientists and cultural workers, if they work on the territory of Russia in institutions created in accordance with international agreements; diplomatic and consular offices, as well as organizations enjoying diplomatic status; religious figures; students during the period industrial practice during holidays; correspondents and journalists accredited in the Russian Federation, and some other citizens.

4. The article in question establishes the scope general norms, which are contained in labor legislation and other regulatory legal acts in the field of labor. The Code provides for the specifics of legal regulation of labor of certain categories of workers. This is due to various factors of differentiation of legal regulation of labor.

Part four of the Labor Code of the Russian Federation is entirely devoted to the peculiarities of legal regulation of labor of certain categories of workers. It includes 16 chapters. In addition, the specifics of legal regulation of the labor of certain categories of workers are contained in a number of federal laws. For example, the Federal Law of August 22, 1996 “On higher and postgraduate vocational education"(SZ RF. 1996. N 35. Art. 4135; 2003. N 2. Art. 163, N 14. Art. 1254, N 28. Art. 2888; 2004. N 31. Art. 3215); Air Code RF (SZ RF. 1997. N 12. Art. 1383); Federal Law of August 7, 2001 “On Amendments and Additions to the Federal Law “On Joint-Stock Companies” (SZ RF. 2001. N 33. Art. 3423). The last of those listed currently gives the right to the board of directors (supervisory board) of a joint stock company to make a decision on suspending the powers of the sole executive body of the company (director, general director). This rule applies if executive bodies are formed in accordance with general meeting shareholders. Features of labor regulation are norms that partially limit the use of general rules on the same issues or providing additional rules for certain categories of workers.

5. The last part of the commented article emphasizes that labor legislation and other regulatory legal acts containing labor law norms do not apply to the following persons if they do not simultaneously act as employers or their representatives: military personnel when performing their military service duties; persons working under civil contracts; members of boards of directors (supervisory boards) of organizations (except for persons who have entered into an employment contract with this organization); other persons, if established by federal law.

6. According to the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 (BVS RF. 2004. N 6), the Labor Code does not apply to military personnel in the performance of military service duties, members of boards of directors (supervisory boards) of organizations (with the exception of persons who have entered into an employment contract with this organization), persons working under civil contracts, other persons, if established by federal law, except in cases where the above persons in established by the Code order at the same time do not act as employers or their representatives (Part 8 of Article 11 of the Labor Code of the Russian Federation).

If an agreement of a civil law nature is concluded between the parties, but during the trial it is established that this agreement actually regulates the labor relations between the employee and the employer, to such relations by virtue of Part 4 of Art. 11 of the Labor Code of the Russian Federation, the provisions of labor legislation and other acts containing labor law standards must be applied.