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4Information for citation:
Shuraleva, S. V. (2022) Atypical Work Relationships: a Comparative Analysis as Exemplified by EAEU Member States. European and Asian Law Review. 5 (2), 61-69. DOI: 10.34076/27821668_2022_ 5 2 61.
UDC 349.2
BISAC LAW054000
DOI: 10.34076/27821668_2022_5_2_61
Research Article
ATYPICAL WORK RELATIONSHIPS: A COMPARATIVE ANALYSIS AS EXEMPLIFIED BY EAEU MEMBER STATES
SVETLANA V. SHURALEVA
Perm State National Research University ORCID ID: 0000-0003-1220-1179
The paper is dedicated to the issues of the correlation between typical and atypical work legal relationships, the problem of classification of atypical work legal relationships based on the modification of personal, property, and organizational criteria. Based on an analysis of EAEU member states' legislations on certain kinds of atypical work legal relationships, the author comes to a conclusion about expanding fixed-term work legal relationships in combination with the elements of age discrimination that constitutes a negative trend and does not enable improvement in the quality of work-life for employees. After the COVID-19 pandemic, the demand for various kinds of remote work will grow. It is not implausible that in due time, the execution of work functions in a hybrid format (some working hours remotely and some - in the office) will become an element of typical work legal relationships. Although the regulation of atypical work legal relationships in EAEU member states differs (sometimes significantly), the establishment of common economic space, common markets, including a labor market, mutual influence of legal systems on each other, striving to take the experience of neighbors into account and other circumstances will lead to the gradual harmonization of the legal space in the field of work and other relationships directly connected to them.
Key words: work legal relationships, atypical work legal relationships, atypical employment, remote work, temporary remote performance of work duties, fixed-term employment contract, EAEU
Introduction
The prevalence of relations mediating atypical employment is one of the challenges labor law faces in practically all modern countries. And EAEU member states are no exception.
Atypical employment is constantly being modified, acquiring new forms. The European Foundation for Improving Living and Working Conditions (Eurofound) includes the following relations in the new forms of employment: employee sharing, job/work sharing, interim management, casual work, ICT-based mobile work, including remote work, crowd work, etc. (Eurofound, 2015; Eurofound, 2018; Eurofound, 2020). That said, platform employment is driven by the development of an 'on-demand economy' where employers use a 'human cloud' to solve their problems more and more often (Schwab, 2017: 62).
The fast pace of changes that are currently in process requires an appropriate legal regulation of atypical employment in the short term. In the context of EAEU member state integration, regulation of relationships in the field of atypical employment, including atypical work relationships as its segment, seems a promising area for the rapprochement of national legislations.
Copyright© 2022. The Authors. Published by Ural State Law University named after V. F. Yakovlev. This is an open access article distributed under the CC BY-NC 4.0. license http:llcreativecommons.orglllicenselby-ncl4.0I
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Atypical work legal relationships are seen as a manifestation of differentiation in the field of labor (Motsnaya, 2009), as a consequence of the inevitable reinforcement of legal regulation flexibility. In a few cases, such flexibility benefits both employees and employers, since it allows creating of more workplaces, replacing a temporarily absent worker, combining employee's work and family obligations perfectly, including new information and communications technologies in the interaction between an employee and their employer, etc. However, atypical work legal relationships (new types specifically) come laden with precarization risks. That is why new forms of atypical employment as well as suggestions regarding amendments to the current legislation need to be analyzed thoroughly in terms of the advisability of their introduction into the labor law.
At the modern stage, comparative legal research in this field is a promising area. Lately, there has been an increasing number of academic papers dedicated to remote work, outstaffed labor and its types (labor of workers employed based on a contract to provide the labor of workers (personnel) per the legislation of far-abroad countries (Istomina, 2021: 59-61; Leonova, 2021: 53-56; Lyutov, 2018: 30-39) and EAEU member states (Gileva, Kiryushchenkov, 2021: 62-64; Tomashevski, 2021: 30-33; Chudinovskikh, 2018: 109-111; Shuraleva, 2019: 41-44; Shuraleva, 2020: 39-42).
N. V. Zakalyuzhnaya's doctoral thesis 'Fundamental Forms of Atypical Work Relations in Russia and Abroad in the Context of Economic Modernization' should be noted, since it is focused on outstaffed labor and its modifications as well as on remote work (Zakalyuzhnaya, 2021).
Since atypical employment, including atypical work relationships, is mostly connected with a risk of labor precarization, it seems timely and valuable to study the consequences of labor law liberalization in EAEU member states (Golovina, 2021: 12-15), as well as the impact of remote work (Golovina & Shuraleva, 2021: 47) and other atypical work legal relationships on the quality of work life.
However, there is still not enough comprehensive research on legislation on atypical work relationships in EAEU member states aimed at identifying legal regulation common trends and patterns in this area, which is indicative of the relevance of this work.
Materials and Methods
In this research, the emphasis is placed on some atypical work legal relationships that are already regulated in the legislation of EAEU member states. The research is based on general scientific methods of scientific knowledge (dialectical, logical methods, analysis, synthesis, comparison) and specific scientific methods of knowledge (structured system analysis, legalistic approach, comparative legal, and historical methods).
Results
The results of the research will be presented in the Conclusion.
Discussion
Work Legal Relationships: Typical and Atypical
The semantics of such words as 'unconventional' or 'atypical' suggests that this is about something deviating from the pattern, from a typical, normal phenomenon. As a rule, atypical work legal relationships are studied in comparison with 'typical' work legal relationships.
The modern understanding of classical or typical work legal relationships is associated with the concept of a single, lasting work legal relationship that 'has not exhausted its scientific potential and has not lost its practical value' even to the present day (Lushnikova & Lushnikov, 2006: 528-529). It was established by N. G. Alexandrov, one of the leading theoreticians of Soviet law (Lushnikova & Lushnikov, 2006: 524).
Regarding 'work legal relationships in general', the scholar defined them as relationships mediating non-individual, cooperative labor of an individual of legal status; he viewed 'working time as the content of the worker's duties and the subject of the competence of the other party' as an attribute of any work relationship that gives it some features of a uniquely lasting legal relationship; he considered labor discipline a necessary element of such a relationship (Alexandrov, 2009: 122-129).
Perhaps, anticipating ideological reproaches against him, N. G. Alexandrov emphasized the fact that 'work legal relationships in general' were just a scientific abstraction that allowed noticing those features of capitalist and socialist work legal relationships driven by the same nature of any non-individual labor of individuals of legal status in order to bring the core differences in those two kinds of legal relationships into sharp focus (Alexandrov, 2009: 122).
Modern definitions of work legal relationships in the legislation of EAEU member states largely rely on the concept of a single, lasting work legal relationship, although some criteria (e.g., those differentiating capitalist and socialist work legal relationships) have faded in importance.
Therefore, personal execution of work functions by an employee for pay, their compliance with internal labor regulations given that the employer provides working conditions in accordance with the labor legislation, collective contracts, agreements, local regulatory acts, and an employment contract are specified by Art. 13 of the Labor Code of the Republic of Armenia (hereinafter LC of RA), Art. 13 of the Labor Code of the Kyrgyz Republic (hereinafter LC of KR), Art. 15 of the Labor Code of the Russian Federation (hereinafter LC of RF). The Labor Code of the Republic of Belarus (hereinafter LC of RB) and the Labor Code of the Republic of Kazakhstan (hereinafter LC of RK) do not contain extensive definitions of work relationships, but they refer to the definition of an employment contract that includes the aforementioned elements.
The criteria for delimiting work relationships from civil law relations can be found in legal precedents. For example, according to Regulatory Resolution No. 9 of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 'On Some Issues of Legislative Execution by Courts when Settling Labor Disputes', the nature of work relationships can be indicated by the circumstances when the employee performs some work (executes a labor function) personally in accordance with a certain qualification, specialty, profession or position while complying with a labor order, while the employer pays them for their work. This correlates with Art. 27 of LC of RK.
In Decree No. 15 of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2018, 'On Application by Courts of the Legislation That Regulates Labor of Employees Working for Employers -Individuals or Legal Entities and for Employers - Small Business Entities That Count as Micro-enterprises' (hereinafter Decree No. 15 of the Plenum of SC of RF), it is explained that in case the presence or absence of work relationships is established, the courts should not only proceed from the presence (or absence) of some formalized acts (civil law contracts, staffing chart, etc.), but also establish whether the attributes of work relations and the employment contract specified in Articles 15 and 56 of LC of RF have de facto occurred, whether the employee has been actually allowed to perform the labor function.
Aside from the aforementioned attributes, in Cl. 17 of Decree No. 15 of the Plenum of SC of RF, some attributes of employment relationships specified in ILO Work Relationship No. 198 (specifically, the performance of work by the employee in accordance with the employer's directives; integration of the worker into the employer's organizational structure; recognition by the employer of such employee rights as weekly days off and annual vacation; payment by the employer for the expenses of the employee's trips for work performance; regular payments to the employee that serve as the only and/or main source of income for them; provision of tools, materials and mechanisms by the employer).
Thus, at the current stage, the following attributes of work legal relationships can be identified: they are based on the mutual agreement of parties (an employee who personally executes their labor function in the interests of, under the leadership and control of the employer ('hiring entity' in LC of RB) with whom the employment contract is entered into, they usually provide a full-time job,
the labor function is performed within the employer's location area, the employee is subject to the labor discipline,
the employer in full and in a timely manner pays the salary to the employee, recognizes their labor rights (e.g., the right to rest) and provides labor and legal guarantees, provides appropriate working conditions.
However, the idea of typical and atypical work legal relationships may change in time and space. The COVID-19 pandemic has accelerated the introduction of various types of remote work into the operations of many enterprises, organizations, and public agencies. Some experts are sure that many employees and employers would like to keep the hybrid remote work even after anti-epidemic restrictions are lifted. In this case, remote (distance) work will become a variant of the norm if not in the near future, then in the medium term.
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The trend of extra-broad contract usage as fixed-term employment contracts in the Republic of Belarus (Tomashevski, 2015: 159), liberalization of labor legislation in favor of employers in the Republic of Kazakhstan (Golovina, 2021: 12-15) suggest a gradual shift of the norm in national legal systems, not in the employee's interests, unfortunately.
Then is there any sense in comparing 'atypical' and 'typical' work legal relationships, if the latter will eventually turn into just another 'special case'? I believe it is not only possible but also necessary, if 'typical' work legal relationships are seen as a certain 'standard' of work relationships where the concept of an employee's labor rights protection is carried out given that the balance of employee's and employer's interests is maintained.
On Classification of Atypical Work Legal Relationships
Following L. S. Tal, M. V. Lushnikova notes that atypical kinds of employment contracts are notable for the lack of or modification of one or several aforementioned attributes: personal, organizational or proprietary (Lushnikova, 2005: 117). A similar position is held by M. A. Shabanova (Shabanova, 2008).
It would seem that atypical work legal relationships can be studied from the perspective of modifying the relevant attributes. This conclusion agrees with O. V. Motsnaya's position who considers the duration of work legal relationships, the place of work performance, the labor regime, or specificities of labor function execution to be the key differentiation factors that cause changes in certain significant attributes of work legal relationships (Motsnaya, 2009).
The personal attribute manifests itself in a special value of the worker's personality: the work legal relationships of an employee who personally performs their labor function. Their business qualities are critical for the employer. On the other hand, the figure of the employer is no less significant for the worker. It is no coincidence that labor codes of some EAEU member states provide for special articles on the change in the property owner (change in the shareowner (stake in the charter capital) for legal entities in the Labor Code of RK), rearrangement, the change of jurisdiction (Art. 36 of LC of RB, Art. 47 of LC of RK, Art. 77 of LC of KR, Art. 75 of LC of RF). According to the general rule, in the aforementioned situations, work legal relationships with the employee continue. An exception is made for the head of the organization, their deputies, and chief accountant since for them the aforementioned circumstances can become the grounds for the termination of the employment contract (Art. 77 of LC of KR, Art. 77 of LC of RF).
N. G. Alexandrov wrote about the indissoluble connection between the organizational and proprietary relationships in the framework of work legal relationships. According to the scholar, the proprietary nature of work legal relationships manifests itself in the compensatory nature of labor and in the fact that, generally, the labor process is about making new property assets out of other property assets. The organizational nature manifests itself in the labor discipline (Alexandrov, 2009: 148). It should be agreed that remuneration as an element of work legal relationships is similar, though not equal to remuneration in civil law relations, and labor process management is similar to management in other areas of public life, though not equal to it (Alexandrov, 2009: 149).
Therefore, the classification of atypical work relationships can be built based on a modification of: personal criterion (including outstaffed labor and its varieties (e.g., labor of workers (personnel) employed based on a secondment contract),
proprietary criterion (e.g., zero-hour contracts and on-demand work that do not provide any guarantees for a job and, therefore, wages),
organizational criterion: by the place of labor function execution (e.g., ICT-based mobile work, including remote work, home-based jobs), based on the duration of labor function execution and specificity of working hours (work legal relationships mediated by fixed-term employment contracts, part-time employment contracts).
A stipulation should be made that this classification is rather conditional. The same kind of atypical work legal relationships can belong to two groups at once.
As for the examples studied above, what calls attention to itself is both the groups of atypical work legal relationships that used to be well-known back in Soviet times (e.g., fixed-term employment contracts) and the relatively new types that have become possible due to digitalization (ICT-based mobile work, including remote work).
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Atypical Work Relationships in the Legislation of EAEU Member States: Legal Regulation Analysis
Legal regulation of atypical work legal relationships in EAEU member states is largely focused in labor codes that have already been the subject of detailed research (Tomashevski, 2017).
At the same time, some norms on atypical work legal relationships may be established in other laws as well. According to Art. 341.3 of LC of RF, specificities of labor regulations in the case of workers (personnel) temporarily outstaffed to other legal entities through a secondment contract by the employer that is not a private employment agency, are established by a federal law that has not been adopted yet. In Art. 18.1 of RF Law No. 1032-1 'On Employment of the Population in the Russian Federation' (hereinafter the RF Law on Employment) dated April 19, 1991, which includes such definitions as 'performing activities on provision of workers' (personnel) labor' and 'a secondment contract', the entities are defined that are entitled to perform the aforementioned activities and requirements for them; the cases when the workers may not be outstaffed to the receiving party on a secondment contract are specified. That said, it is established in Cl. 14 of this Article that federal laws may impose additional restrictions for outstaffing on a secondment contract to the receiving party.
In the context of discussions about a new version of the RF Law on Employment the Ministry of Labor plans to prepare, one may predict that it will include a significant corpus of regulations on the issues of atypical employment, including atypical work legal relationships.
Labor legislation of all EAEU member states regulates mostly atypical work relationships with the modification of personal and/or organizational criteria: work legal relationships mediated by fixed-term employment contracts, part-time jobs, and home-based jobs. As for relatively new atypical employment forms, it is worth noting remote work (legal regulation is absent in LC of KR only), work legal relationships with a worker in the framework of a secondment contract (regulated by LC of RK and LC of RF).
Though the regulation of the aforementioned atypical employment relationships has national specificities based on a certain legal system, it can be said that there are some common trends. Let's see it as exemplified by work legal relationships based on a fixed-term employment contract and those mediating remote work.
Atypical Work Relationships Based on a Fixed-Term Employment Contract. The rules on entering into employment contracts are provided for by the legislations of all EAEU member states. According to the legislation of most EAEU member states, fixed-term employment contracts are entered into for a definite period of no more than 5 years. Such a period is not established in the Republic of Armenia, and in the Republic of Kazakhstan fixed-term employment contracts are entered into pursuant to the general rule for a term of at least one year (Cl. 1 Art. 30 of LC of RK).
If the validity period is not specified in the employment contract, it is deemed entered into for an indefinite term (Art. 17 of LC of RB, Art. 94 of LC of RA, Art. 58 of LC of RF, Art. 55 of LC of KR). Fixed-term employment contracts are entered into in the cases established by the legislation. The law specifies situations when work legal relationships may not be established for an indefinite term given the nature of the future work or the conditions of its performance and/or specifies certain categories of workers.
In some cases, entering into fixed-term employment contracts is mandatory and inevitable for the parties of the employment contract, but due to direct instruction of the law, it may also be established by an agreement of the parties (Parts 1, 2, Art. 59 of LC of RF, Art. 17 of LC of RF).
However, quite an extensive list of grounds for entering into a fixed-term employment contract is often not articulated comprehensively enough (Art. 59 of LC of RF, Art. 55 of LC of KR); it refers not only to other articles of labor codes but also to other laws thus expanding the scope of fixed-term work legal relationships even further.
For example, according to the Russian legislation, aside from the grounds specified in Art. 59 of LC of RF, fixed-term employment contracts may be entered into with employees of religious organizations (Art. 344 of LC of RF), the employees that belong to the faculty and academic staff (Art. 332 of LC of RF), the employees working for individuals as employers (Art. 304 of LC of RF), with the employees involved in implementing the regional program for labor mobility improvement (Art. 22.2 of the RF Law on Employment of the Population), etc. In civil service, entering into a fixed-term service contract makes it possible not to hold a tender for a civil service position (Part 2, Art. 22 of Federal Law No. 79-FZ 'On Civil Service in the Russian Federation' dated July 27, 2004).
However, while according to LC of RF the list of grounds for entering into a fixed-term employment contract is provided for by law and the employer has to put one of these grounds in the fixed-term
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employment contract, Art. 30 of LC of RF allows entering into a fixed-term employment contract without any reasons, at the employer's discretion.
Global changes in the labor legislation of the Republic of Belarus in relation to the adoption of Law No. 219-Z of the Republic of Belarus 'On Amendments to Laws' dated July 18, 2019, touched upon fixed-term employment contracts as well. Assessing this case, K. L. Tomashevski (Tomashevski, 2020: 152) notes that even though Belarussian legislators have considered the Russian experience with respect to establishing a limited list of cases when fixed-term employment contracts may be entered into, they have still kept and formalized the practice of unlimited contract use, which eliminates the potential positive effect of this innovation.
The list of exceptions also raises some questions. Partially, it is premised on objective factors (performance of seasonal, temporary, public work; the need to replace an absent worker; filling an elective position by an individual, etc.). However, it is difficult to agree with the situation when reaching retirement age by any employee automatically places them in a vulnerable position in terms of work legal relationships.
For example, among the categories of workers with whom a fixed-term employment contract is entered into specified in Art. 95 of LC of RA, there are the individuals entitled to have an old age pension who have reached the age of sixty-three or the individuals not entitled to have an old age pension who have reached the age of sixty-five. Additionally, the employer on their own initiative is entitled to terminate the employment contract with them if the relevant grounds are provided for by the employment contract (Cl. 11, Part 1, Art. 113 of LC of RA).
Reaching the retirement age by the employee is the grounds to dismiss them on the employer's initiative in Kazakhstan as well (sign. 24, Part 1, Art. 52 of LC of RK). In this case, a fixed-term employment contract with such a highly professional employee may be extended indefinitely if they are capable of performing (Part 5, Art. 30 of LC of RB).
Therefore, the employer is entitled on their own initiative to terminate work relationships with the employees who have reached retirement age, at best, to offer them a fixed-term employment contract. One should agree with S. Yu. Golovina that this is age discrimination and contradicts ILO Convention No. 111 'Discrimination (Employment and Occupation)' and ILO 'Older Workers' Recommendation No. 162 (Golovina, 2021: 13).
In this context, N. V. Zakalyuzhnaya's suggestion on lifting restrictions for applying fixed-term employment contracts and significant extension of grounds for entering into them in the Russian labor legislation (Zakalyuzhnaya, 2021: 144-145) seems quite debatable. Delegation of these authorities to the level of social partnership (considering the weak negotiation positions of trade unions) and, particularly, to the level of local normative work will result in greater discrimination, inequality of employees' legal status, and will cause social instability. These results will hardly enable improvement in the economic and social situation.
These circumstances suggest expanding fixed-term work legal relationships in combination with elements of age discrimination.
Atypical Work Relationships Mediating Remote Work. Regulation of remote work relationships is evolving quite quickly in the EAEU space. The relevant standards appeared in the labor legislations of Russia, Belarus, and Kazakhstan even before the COVID-19 pandemic. However, the pandemic stimulated the establishment and/or improvement of remote work standards.
At the beginning of the COVID-19 pandemic, Law No. ZR-236 of the Republic of Armenia dated May 5, 2020, introduced Art. 106.1 'Temporary Performance of Duties in a Remote Manner during Natural Disasters, Technological Emergencies, Epidemics, Accidents, Fires, and Other Emergencies or Immediate Damage Control' into LC of RA.
The Article provides a definition of the work performed remotely: this is the work performed during natural disasters, technological emergencies, epidemics, accidents, fires, and other emergencies or immediate damage control from the non-workplace in case it is impossible to ensure the performance of this work at the workplace.
Such work is not considered a change in the workplace or other significant working condition under Part 1, Art. 105 of LC of RA. If to continue working in a conventional format or remotely is not an option, and the employee has an unused annual vacation, the annual vacation is provided to the employee upon request by the employer (Parts 2, 3, Art. 106.1 of LC of RA).
Unfortunately, the legislator has not provided any guarantees in case the right to vacation has been exercised previously, and it is not possible to work remotely.
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On the contrary, temporary restriction of rights and freedoms of individuals and legal entities by the legislation during natural disasters, technological emergencies, epidemics, accidents, fires, and other emergencies or immediate damage control, when it is impossible to perform duties, including remote work, is considered force majeure (Part 7, Art. 186 of LC of RA) and the downtime caused by this force majeure is not paid for (Part 6, Art. 186 of LC of RA).
Therefore, the LC of RA regulates remote work, but only in case of emergencies without providing any labor and legal guarantees to the employees.
Since January 1, 2021, new amendments to Ch. 49.1 of LC of RF have come into force to significantly transform the Russian legislation on remote work.
The most important innovations are associated with the emergence of three types of remote work: remote execution of a labor function on a permanent basis (during the entire validity period of the employment contract), on a temporary basis (for a continuous period of no more than 6 months) and occasionally if the execution of a labor function will be rotated between a stationary mode and at the workplace (Art. 312 of LC of RF). This creates opportunities for legitimizing relationships when in fact the employee sometimes works from home recording the time of working from home and in the office that can protect the employee from unlawful disciplinary sanctions.
The procedure for electronic interaction between employees and employers has been simplified: an enhanced certified encrypted signature has become mandatory only for employers when signing employment contracts, supplemental agreements, and other contracts. The employee has received the right to use the enhanced encrypted non-certified signature. Other forms of interaction aside from electronic document exchange have been legalized (Art. 312.3 of LC of RF). This reduces the employer's costs for acquiring encrypted signatures, allows for establishing other channels for interaction between employees and employers.
An additional guarantee has been introduced to ensure that the remote execution of a labor function by the employee may not be considered the basis for salary reduction (Art. 312.5 of LC of RF), which should be welcomed.
The procedure for the temporary transfer of an employee to remote work on the employer's initiative has been established for exceptional cases (Art. 312.9 of LC of RF).
Due to the abuse by employers, additional grounds for the termination of employment contracts on the employer's initiative are now established not by an employment contract, but directly in Art. 312.8 of LC of RF.
The first basis suggests that during the remote execution of a labor function, the employee does not interact with the employer without due cause on issues connected with their employment duties for more than two business days in a row (according to the general rule) from the day the employer's request is received. The second basis for the termination of the employment contract is linked to a change in the environment for labor function execution by the employee if in this case, the employee can no longer perform their obligations on the same terms.
According to N. L. Lyutov, most innovations were adopted in the interests of employers (norms on unilateral, temporary transfer of employees to the remote mode in case of emergency, on callback of employees from remote to stationary mode, etc.). The scholar considers the main benefit to be the exception of the discriminatory norm on the dismissal of remote workers on the grounds that are not specified in the employment contract. The problem of establishing the employees' right not to be in constant contact with their employers has not been resolved by the law (Lyutov, 2021: 43). The innovations received their share of critics (Belitskaya & Korshunova, 2021).
It would seem that after the pandemic, the interest in remote work will not disappear; on the contrary, the further expansion of the scope of remote labor relationships and further development of their legal regulation will occur. Currently, labor legislations in all EAEU member states, except for Kirgisia, regulate remote (distance) work to a degree.
The idea of convergence with respect to legal labor regulation of people working at stationary and non-stationary workplaces has been voiced already in legal law science (Ivanchina, 2021: 27). According to Yu. V. Ivanchina, remote work is a typical form of labor in the information society and it is not particularly justified to classify it as atypical employment (Ivanchina, 2021: 24).
It is difficult to say at which stage of development of the information society we currently are, but in the long run, this statement is correct.
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Conclusion
Characteristics of atypical work legal relationships are usually identified through a comparison with typical or classic work legal relationships. That said, 'typical' work legal relationships are seen as a certain 'standard' of work legal relationships where the concept of employee's labor rights protection is carried out given that the balance between employee's and employer's interests is maintained.
Sometimes, deviation from the established standards may be reasonable to create more workplaces, replace a temporarily absent worker, establish a balance between employee's work and family obligations, include new information and communications technologies in the interaction between employees and their employers, etc. However, atypical work legal relationships (and new types specifically) come laden with precarization risks. That is why it is necessary to approach amendments to the current legislation with deliberate care.
This work is based on the approach in accordance with which atypical work legal relationships are characterized by the lack and/or modification of one or several following attributes: personal, organizational, or proprietary.
Legal regulation of atypical work legal relationships in EAEU member states is performed through the labor codes of EAEU member states. However, due to the planned modernization of the RF Law on Employment, it is not implausible that a corpus of regulations will appear there - on atypical work legal relationships, among other things.
An analysis of the regulation of atypical work relationships based on a fixed-term employment contract suggests the expansion of fixed-term work legal relationships combined with the elements of age discrimination that constitutes a negative trend and does not enable improvement in the quality of work-life for employees.
The COVID-19 pandemic has become a catalyst for developing labor legislation on remote work; however, even after the pandemic, the demand for various kinds of remote work will grow. It is not implausible that over time, the execution of employment functions in a hybrid format (some working hours remotely and some - in the office) will become an element of typical work legal relationships.
Although how regulation of atypical work legal relationships in EAEU member states is performed differs (sometimes significantly), the establishment of common economic space, common markets, including the labor market, mutual influence of legal systems in each other, striving to take the experience of neighbors into account and other circumstances will lead to the gradual harmonization of the legal space in the field of employment and other relationships directly connected with them. That said, as S. Yu. Golovina rightfully notes (Golovina, 2021: 13), 'still, the idea of employees' labor rights protection should prevail over the concept of legal relationships liberalization'.
References
Alexandrov, N. G. (2009) Trudovoe pravootnoshenie [Work Legal Relationships]. Moscow, Prospekt. (in Russian)
Belitskaya, I. Ya. & Korshunova, T. Yu. (2021) We Wanted Better, but Ended Up with New Rules of Remote Work. Labor Law in Russia and Abroad. (3), 20-23. (in Russian)
Chudinovskikh, M. V. (2018) Regulation of Remote Labor in Eurasian Economic Union Member States. Eurasian Advocacy. 4 (35), 109-111. (in Russian)
Dogadov, V. M. (1927) Ocherki trudovogo prava [Labor Law Essays]. Leningrad, Priboi. (in Russian) Eurofound (2015) New Forms of Employment. Luxembourg, Publications Office of the European Union,. Eurofound (2018) Overview of New Forms of Employment - 2018 Update. Luxembourg, Publications Office of the European Union.
Eurofound (2020) Telework and ICT-Based Mobile Work: Flexible Working in the Digital Age, New Forms of Employment Series. Luxembourg, Publications Office of the European Union.
Gileva, N. V. & Kiryushchenkov, M. I. (2021) Outstaffing in Kazakhstan: Legal Aspects. Labor Law in Russia and Abroad. (3), 62-64. (in Russian)
Golovina, S. Yu. (2021) The Impact of Labor Legislation Liberalization on the Quality of Work Life (as exemplified by Russia and Kazakhstan). Labor Law in Russia and Abroad. (4), 12-15. (in Russian)
E
Golovina, S. Yu. & Shuraleva, S. V. (2021) The Distant Work Impact on the Quality of Working Life: Law Aspects. SHS Web of Conferences. 14th Session of Euro-Asian Law Congress 'The Value of Law'. 00047. https://doi.org/10.1051/shsconf/202213400047.
Istomina, E. A. (2021) Legal Regulation of Remote Work in France. Labor Law in Russia and Abroad. (3), 59-61. (in Russian)
Ivanchina, Yu. V. (2021) Stationary and Non-Stationary Workplaces: Convergence of Legal Regulation. Labor Law in Russia and Abroad. (3), 24-27. (in Russian)
Leonova, A. A. (2021) Legal Regulation of Remote Work in the Netherlands. Labor Law in Russia and Abroad. (2), 53-56. (in Russian)
Lushnikova, M. V. & Lushnikov, A. M. (2006) Ocherki trudovogoprava [Labor Law Essays]. Moscow. (in Russian)
Lushnikov, A. M. & Lushnikova, M. V. (2021) Trudovoe pravo [Labor Law]. Moscow, Prospekt. (in Russian)
Lyutov, N. L. (2018) Transformation of Work Legal Relationships and New Forms of Employment in the Context of a Digital Economy. Zhurnal rossiyskogo prava [Journal of Russian Law]. (7), 115-130. https://doi.org/10.12737/jrl.2019.7.10. (in Russian)
Lyutov, N. L. (2021) New Norms on Remote Labor: Are Old Problems Solved? Lex Russica. 6 (175). 36-45. (in Russian)
Motsnaya, O. V. (2009) Atypical Employment: Some Matters of Theory and Practice. Abstract of PhD Thesis in Law. Moscow, Institute of State and Law of the Russian Academy of Sciences. (in Russian) Schwab, K. (2017) Chetvertaya promyshlennaya revolyutsiya [The Fourth Industrial Revolution]. Moscow 'E' Publishing House. (in Russian)
Shabanova, M. A. (2008) Specificities of Legal Regulation of Atypical Employment Contracts. PhD Thesis in Law. Yaroslavl. (in Russian)
Shuraleva, S. V. (2019) Remote Work: A Comparative Analysis of EAEU Member States' Legislations (part 1). Labor Law in Russia and Abroad. (4), 41-44. (in Russian)
Shuraleva, S. V. (2020) Remote Work: A Comparative Analysis of EAEU Member States' Legislations (part 2). Labor Law in Russia and Abroad. (1), 39-42. (in Russian)
Skachkova, G. S. (2021) Remote Labor: Some Enforcement Matters. Labor Law in Russia and Abroad. (3), 28-31. (in Russian)
Tomashevski, K. L. (2017) National Laws and Other Legal Acts on Labor in EAEU Member States: An Overall Review and the Issue of Mutual Hierarchy. State and Law. (7), 82-89. (in Russian)
Tomashevski, K. L. (2015) A Paradigm of Belarussian Labor Law in the Early 21st Century. A Paradigm of Labor and Social Law in the Age of Building the Post-Industrial Society. Collection of research papers based on the results of the 3rd International Scientific and Practical Conference. Minsk-Grodno, October 23-24, 2015. 155-163. (in Russian)
Tomashevski, K. L. (2020) Global Reform of the Labor Code in the Republic of Belarus in 2019-2020 (Matters of Employment Contracts and Collective Agreements). Lex Russica. 9 (166), 143-154. (in Russian) Tomashevski, K. L. (2021) Remote (Distance) Work in Labor Legislation of EAEU Member States during the Pandemic. Labor Law in Russia and Abroad. (2), 30-33. (in Russian)
Zakalyuzhnaya, N. V. (2021) Fundamental Forms of Atypical Work Relations in Russia and Abroad in the Context of Economic Modernization. Doctoral Thesis in Law. Moscow. (in Russian)
Information about the author
Svetlana V. Shuraleva - PhD in Law, Associate Professor of the Labor and International Law Department, Perm State National Research University (Perm, Russia; e-mail: shura_leva@mail.ru).
© S. V. Shuraleva, 2022
Date of Paper Receipt: March 12, 2022 Date of Paper Approval: April 10, 2022 Date of Paper Acceptance for Publishing: June 24, 2022
