In any branch of law, timing is endowed with special significance for the emergence, amendment and suspension of legal relations. The scope of labor law is no exception . In this sense, the concept of terms includes several meanings - this is a specific period of time, and a certain moment, symbolizing the fulfillment of something. Many Russian scientists have tried to develop their own approach to determining dates in jurisprudence. Let us try to generalize various options for the interpretation of the concept of terms in labor law.
The importance of time periods in jurisprudence
The concept and classification of terms in labor law is a very popular subject of research by domestic lawyers. Despite the unequal positions of specialists in the disclosure of this term, we can draw a simple conclusion that the term in any legal sphere is a legal fact. If we consider the concept of the term in the plane of the general theory of the state and law, it would be more correct to define it as a social circumstance, which is the basis for the occurrence of the corresponding legal consequences.
The passage of time comparable with the onset of legal facts is taken into account in each branch of law and is of fundamental importance. All issues affecting the concepts of terms, their legal purpose, calculation methods and methods, are deeply worked out in the field of civil relations.
Legal period in labor law
In the field of legal relationships between management and subordinates there is no single concept of terms. Among the studies in labor law, there are various opinions and positions regarding the definition of those periods of time with the onset or completion of which are associated with certain legal facts.
All types of terms in labor law have a number of features in comparison with other legal sectors. Based on the scientific position of most legal scholars, the most complete is the definition of the term in which it is called the length of time, moment, period, from the beginning or the expiration of which the subject has an obligation to commit or refuse to perform a specific legal action. Such terms are established by international treaties and national legislation in the field of labor law, including treaties, local regulations, and collective agreements. The time periods stipulated by law after its occurrence or expiration entail legal consequences.
In this context, the ratio of the terms “time” and “term” is given primary importance. For example, the passage of time can be considered as a broad and objective concept, since it exists and goes on regardless of the desire of people. At the same time, the course of the term is subjective and narrower in meaning, since the moment of the onset of legal consequences depends on the will of the subject. This is just a period of time established by law or determined by other volitional actions of participants in labor relations.
The main types of time periods
The term in labor law has its own classification. The distribution of legal periods for types allows you to systematize and identify their nature, determine the main functions and track the development and change of labor relations in different time periods. During the process, the specificity of individual categories of terms and the presence of a relationship between them may also be reflected.
Material periods of validity of labor law
In relation to legal norms and relations between the subjects of this sphere, such types of terms are distinguished as tangible and intangible.
In the first case, we are talking about time periods that establish the framework for the existence and development of labor relations, as well as additional privileges and obligations within the framework of the concluded contract and current legislation. Material terms in labor law establish clear boundaries for the implementation of a specific scope of authority.
A vivid example here can be dates of the beginning and termination of the labor agreement, the trial or preparatory period, the establishment of exact time periods for rest, lunch break, the season in which employees can take a vacation, clarification of its duration, etc.
Intangible dates
In this case, we mean the time frame during which any legally significant action of participants in labor relations takes place, which is the basis for the occurrence, change or termination of real facts. Intangible periods in labor law include a period of preliminary testing with a known date of termination of the agreement, the moment of changes in the conditions of professional activity, the reduction in the number of employees or the dismissal of one of the employees, the date of notification of state structures and trade unions about the termination of employment between the employer and subordinates.
In turn, intangible periods may be:
- procedural;
- procedural;
- organizational;
- prescription.
Speaking of procedural terms in labor law, we mean the time periods within which appropriate actions must be performed and measures taken to ensure the full implementation of production and organizational and methodological tasks.
In accordance with the concept and classification of terms in labor law, it is worth highlighting another group. Procedural time periods are established by regulatory legal acts issued by an authorized legislative or executive state body. These documents establish the deadlines for trial. Labor law also sets aside time for an official or a competent government agency to consider labor disputes between an employer and employees. Case materials are provided by each of the parties protecting their interests and rights.
Intangible time periods also include organizational and prescriptive ones. The first concerns the terms that are determined at the legislative level for employees and employers by unilateral or mutual agreement in order to create a specific body, structural unit or decision-making.
Long-term time periods, despite being classified as intangible, are most often allocated by specialists as a separate group. In labor law, the expiration of the limitation period, as in any other legal field, deprives a person who needs to protect violated rights of such an opportunity.
Varieties of time periods by the competence of the parties
Depending on the model of relations formed between their participants, there are contractual terms, imperative and mixed. The determination of the time frame for the performance of an action, the fulfillment of an obligation on the basis of a contractual agreement is dispositive loyal.
Unlike contractual terms, imperative terms cannot be changed, even by mutual agreement of the parties to the employment relationship. The length of the period is fixed by the provisions of laws and regulations.
The mixed form allows entities to independently agree on the beginning and end of terms in labor law. At the same time, it is allowed to establish the duration of a time period only within the framework established by law.
Other classification
Depending on who fixed this period, the periods established are:
- norms of federal law;
- presidential decree;
- court decision;
- by agreement of the parties;
- collective agreement.
Some time periods can apply to all subjects of labor relations, including participants in similar situations (case-law) that have arisen in the territory of the Russian Federation, or act only on a limited circle of people. In this case, we mean special periods established for individual entities and are, rather, an exception to the general rules. Special dates always take precedence over general ones.
An example is the provision of the Russian Labor Code on basic leave, which should not be less than 24 calendar days per year (Article 155). However, the legislation established a list of professions whose representatives are entitled to a greater number of vacation days in a calendar year.
How the term affects the dynamics of legal relations
The passage of time in labor law, as already mentioned, entails the emergence, change and termination of specific legal facts. It is on this criterion that the following classification is based.
The right-forming parties are the periods, the beginning of which is the basis for the creation of legal relations or the emergence of separate rights and obligations for both or one of the participants. In this case, the authority of the subject appears only after the time specified in the document. So, as an example, we take article 25 of the Labor Code of the Russian Federation, which notes that the moment the contract between the employer and the employee comes into force is the first day of the performance of labor duties, unless otherwise specified by the parties to the contract.
In this case, it is fundamentally important to understand the difference between the term of conclusion of the contract and the date of its entry into legal force, which, as a rule, coincides with the day when the worker begins to perform his duties. In practice, an employment contract is concluded on time earlier than the actual moment of commencement of work. If necessary, this moment is provided for in the contract simultaneously with other relevant conditions. In addition, the moment the employee is allowed to perform labor duties in fact is the starting lever for the entry into force of the labor contract, regardless of whether it has been drawn up and executed properly.
If the occurrence of a certain moment or its expiration affects the rights and obligations of the subjects of legal relations, this type of terms is called a law-change. For clarity, we again turn to the Labor Code of the Russian Federation, where in part 3 of Art. 29 of the Labor Code indicates that a contract that is not terminated before the end of the trial period determines the employee to have passed the preliminary term, and therefore the breakdown of labor relations with him is possible exclusively on a general basis.
The pre-trial period in labor law is the moment entailing the termination of legal relations, as well as the deprivation of certain rights and obligations of their entities. A striking example is the expiration of the period that the law gives to the employer to warn employees of dismissal or layoffs.
In what cases the expiration of the term does not terminate the employment relationship
The contract will be considered concluded with the employee for an unlimited period in that situation if neither the employer nor the employee himself has requested to terminate the urgent agreement due to the expiration of the term. Violation of his labor rights will be considered non-compliance with a two-month period during which the employer is obliged to notify his subordinate about changes in the terms of the employment contract. Meanwhile, the conclusion of a civil contract (for example, a contract for the provision of services) instead of a labor contract does not protect the rights of an employee in case of expiration.
How are the dates calculated
In the field of labor law, there are other classifications of terms based on the institutions of this legal field. Moreover, for each of them, the correct calculation order is important. Terms in labor law have significant differences. So, in particular, certain periods of time are established by law for drawing up, entry into force and termination of the contract, the length of working hours and rest, the frequency of wages, the frequency of briefings on safety and labor protection may vary. This classification of terms in labor law cannot be called exhaustive.
The question of the procedure for calculating periods, which are an important component for regulating legal relations between the employer and subordinates, deserves special attention. Choosing one or another principle of calculating the terms in labor law, it is important to distinguish between an arbitrary moment (time flow segment) and a well-defined legal fact, a specific circumstance, which is connected with the direct completion of the term.
In the scientific literature, authors often point out the differences between the course and calculus of the legal period. In the first case, according to lawyers, the sequential duration of the time period is understood. The calculation of the term is fixing the moment from which it begins to flow, up to the moment of its completion or extension.
Calculation of intangible periods
In order to correctly determine the time frame, it is necessary to establish the moment the beginning and end of the legal action or event. Article 10 of the Labor Code of the Russian Federation defines a general algorithm for calculating time periods of an intangible nature. The duration of the periods associated with the origin, change or termination of labor relations is fixed from the day following the calendar date of their beginning, that is, the acquisition of legal force. The end of the intangible period, as a rule, is determined by the last day, however, if it falls on a weekend or a national holiday, then the next working day next to it is considered to be the end of the term.
The procedure for calculating intangible periods is often constantly used in the process of labor relations:
- when issuing reporting documents on the work done;
- upon notification of changes to the pay scheme;
- when familiarizing employees with the new working hours regime;
- with disciplinary action;
- when trying to appeal the decisions of the employer, appeal to the judiciary, etc.
What is the difference between calculating tangible and intangible terms
The moment of the beginning of the material period is always the calendar day, which determines the actual beginning of the legal relationship. In the same way, the end of the material term is calculated. The rule is the opposite of calculating intangible periods - if the last day falls on a day off, then the legal period is not shortened and not extended by one business day. Moreover, this rule may have its own exception. To calculate the exact number of vacation days, business trips, sick leave and payroll, these transfers may apply.
For a unit of calculating intangible terms, take a calendar year, quarter, month, week, day. Moreover, all established periods expire on the extreme dates of the specified year, month or week. The non-material time period will also include non-working (weekends and holidays) days.
Dates of a material nature are calculated not only in the specified units of calculation. For example, hours and minutes measure the duration of a lunch break, hourly downtime in the production process.
Trial Period Calculation
This is a common practical task in labor law. The probationary period is set in the interests of the employer to confirm the professional and qualification qualities of the employee. The employer will only be able to find out if the employee possesses the skills and abilities necessary for the performance of official duties after the trial period. The dismissal procedure at the end of this period is greatly simplified in comparison with the general procedure for dismissal. The duration of the probationary period in the labor law of the Russian Federation, in accordance with the norms of the Labor Code, is no more than three calendar months, and, if necessary, six months (as agreed with the trade union bodies).
During the probationary period, the intern is fully covered by the applicable labor law. , :
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