§ 2. Advantages of electronic interaction before traditional forms of interaction within the limits of the relations labour and directly connected with them

The choice of the concrete form of interaction is caused by its specific features, and also facing parties problems. Each of interaction forms gives to participants characteristic advantages.

It is possible to carry to the basic advantages of the electronic form of interaction of the worker and the employer:

1) Essential reduction of time expenditures of labour of subjects of the law of master and servant, and also efficiency of finishing of legally significant and office information to the counter party.

The given advantage is shown in two moments. First, in the law of master and servant the terms of various duration having presekatelnoe value are fixed. After the given term right realisation becomes legally impossible, and duty default will entail the negative consequences specified in the law for the worker or the employer.

In comparison with presekatelnymi the terms provided by other branches of law (time limits, periods of limitation), in the law of master and servant it is possible to recognise terms as the shortest.

As the arguments serving by a substantiation of the given conclusion, it is possible to result examples of following terms in the law of master and servant:

Two working days - term for granting by the worker explanatory upon fulfilment of a minor offence by it (ч.1 item 193 TK the Russian Federation);

Three working days / the calendar:

- Term of the prevention of the counter party about cancellation of additional work or about refusal of its performance (ch. 4 items 60.2 TK the Russian Federation);

- Term of the prevention of the worker about employment contract cancellation in connection with unsatisfactory result of test, or in case of decision-making by the worker that the given work is not for it approaching (item 71 TK the Russian Federation);

- Term of the prevention of the worker about the expiry of the term of action of the urgent employment contract (item 79 TK the Russian Federation);

- Term for delivery of the work record card to the worker who has not received the work record card after dismissal after a writing by it of a written statement (item 84.1 TK the Russian Federation) and others.

Five working days:

- Term for a direction to the employer motivirovannogo opinions under the project of the local normative act in writing from the date of its reception (ч.2 item 372 TK the Russian Federation);

- Term for consideration of the collective labour dispute at other levels of social partnership from the date of the certificate edition about creation of the reconciliatory commission / from the date of the invitation (appointment) of the intermediary / from the date of creation of the council of conciliation (ч.5 item 402 TK RF/ч.5 item 403 TK RF/ч.5 item 404 TK the Russian Federation);

- The minimum term for the prevention of the employer of forthcoming strike (ч.8 item 410 TK the Russian Federation).

Seven calendar days (seven days):

- Term for the introduction into collective negotiations for representatives of the party which have received the offer in writing about the beginning of collective negotiations (ч.2 item 36 TK the Russian Federation);

- Term for a direction the employer, the representative of the employer (employers) of the collective agreement, the agreement on notifying registration in corresponding body on work (ч.1 item 50 TK the Russian Federation).

Seven working days - term on consideration by elected body of the primary trade-union organisation of the project of the order for dismissal of the worker and a direction to the employer of the motivirovannogo opinions in writing (ч.2 item 373 TK the Russian Federation);

Ten days:

- Term for the appeal the employer of the instruction of the state inspector on work in court (item 357 TK the Russian Federation);

- Term for consideration of the individual labour dispute by the commission on labour disputes from the date of giving by the worker of the statement (item 2 of item 387 TK the Russian Federation).

Fastening of the listed truncated terms in the law of master and servant is justified and it is logical, as both social, and production function of the given branch demand operative actions or decisions. The establishment of more long terms for fulfilment of legally significant actions in labour relations can lead to destabilization of labour relations, is negative affect productions and a labour market condition.

The labour relations parties are interested in realisation of the rights and discharge of duties in statutory terms. Conditions of realisation of a material component of such norms should not be excessively inconvenient for them taking into account standard term.

The listed terms on fulfilment of legally significant actions are short enough and admit some authors

Burdensome for the worker and the employer. [57]

However the objective bases for acceptance of norms with new terms (the increased duration) are absent, therefore it is necessary

To develop the mechanisms accelerating processes of interaction.

As has shown the resulted analysis, authorised or the bound party in the listed cases can or should make certain actions which can be consolidated in three concepts: to "inform,"consider, "transfer". If to abstract from the actual maintenance of concrete legal relation, it is possible to draw a conclusion: in the specified terms the labour relations party has the right or is obliged to begin interaction with the counter party.

Obektivirovannoj as the form of expression of the beginning of such interaction the document - explanatory, the notice, the statement, the issued opinion etc. which should be transferred the counter party will act. The later within a target date the given document will be directed the addressee, the it is more than time for decision-making on the substance of the arisen situation will be at the sender. The rule operates and in the opposite direction - the faster the addressee will receive such message, the it is more than time at it will be on the answer.

The electronic form of interaction with its innovative ways of an information transfer and documents allows to minimise time expenses for realisation of interaction and to give to the parties bolshee quantity of time for the direct permission of the arisen questions and realisation of necessary actions.

The second component of the specified advantage is interaction possibility of the worker far off being from each other and the employer. Traditional forms of statement of problems in such cases (phone) do not allow to consider all possible features of charged work, to transfer to the worker any documentation.

Besides, the electronic form of interaction in such conditions allows to save time of the parties for carrying out of current meetings, participation in actions for improvement of professional skill (seminars, conferences) and as a whole creates the interaction system, allowing to resolve any question arising in work.

2) Creation of additional workplaces for persons with the limited physical possibilities, and also persons with low mobility (persons with family duties, pensioners), using an electronic handshaking both for performance of labour function, and for interaction with the employer.

First of all, it is a question of persons with the limited physical possibilities, having problems with the oporno-impellent device which daily movement to a place of work and back brings it obvious inconveniences. Work of such workers can be organised distantsionno with use of information-telecommunication networks (including networks the Internet) and e-mail.

The market of services in modern postindustrial economy starts to prevail over a commodity market. The trades providing remote servicing, are extremely popular now (dispatchers of a taxi, operators of Internet shops, advisers, etc.).

As some authors specify, till now, despite occurrence of new specialities and trades, in an invariable kind the Decision of Ministry of Labor of the Russian Federation № 150 About the list of priority trades of workers and employees operates from 08.09.1993", mastering with which allows to invalids the greatest possibility to be competitive on regional labour markets» [58]. In the appendix to the given decision the list of the trades which limitation reduces possibilities of invalids in professional sphere is presented. [59]

Analyzed advantage was sounded by some authors as one of principal causes of legalisation of remote work in the Russian labour legislation. As A.Ivanov marked, inclusion in TK the Russian Federation gl. 49.1 will allow to create an accessible labour market for invalids, the women having children, parents having many children, pensioners, students as they will have an opportunity to work, not leaving the house, or in other places chosen under their discretion, using an information-communication network the Internet and other kinds of communication. [60]

Other authors specify that «initially such form of employment (remote work - comment A.T.) it has been focused mainly on pensioners, housewives, invalids and the persons who are engaged in national crafts» [61].

It is difficult to agree with such position, as development of information technologies is objective process in human history. Public relations introduce in the structure of achievement of scientific and technical progress, instead of new technologies are created for change of concrete interaction. It is artificial process, despite harmonious result.

Problem of social engineering is replacement of becoming outdated elements of public relations on modern, i.e. their modernisation. Introduction of an electronic handshaking in structure of labour relations is an inevitable stage in permanent process of modernisation of the law of master and servant.

The positive effect of a remote way of the organisation of work for the labour relations parties is reached exclusively by means of a specific way of interaction of the worker and the employer which does not depend on concrete factors or signs of the worker. That is a realisation principal cause in practice of a design of remote work was necessity of operative information interchange between the worker and the employer, and a condition of possibility of use of such design - development of information technologies. Possibility of use of the given short story for the is social-useful purposes, including for the organisation of work of the is social-not protected categories of the population became a consequence of it.

As the traditional form of employment for the specified categories of the population was considered nadomnyj work. As marks JU.P.Oryol: «Besides traditional labour relations between workers and employers with accurately certain list of competences and duties of each of the employment contract parties, there are non-standard relations. The relations arising between the employer and workers are ranked as such relations, performing work distantsionno. The Circle of persons, performing such work, is wide enough. If earlier such workers were only the home-workers concerning socially vulnerable levels of population: pensioners, invalids, persons with the lowered work capacity, the women having minor children now the persons performing work distantsionno, are programmers, designers, journalists, translators, editors, etc.» [62].

Thus, expansion of possibilities on use of an electronic handshaking in labour relations allows to find work to people who in the absence of remote employment could not work within the limits of "traditional" model of labour relations.

3) Formation of electronic base of the personnel and office documentation to which continuous access from a workplace can be provided.

The interested person can use such electronic base in the various purposes. Depending on it it is possible to allocate two components of the specified advantage:

The System of electronic document circulation allows to fix and store authentically the documentation which can be used at the permission of questions trudopravovogo character (the documents confirming appropriate execution of official duties, minor offence fulfilment, observance of procedure of dismissal of the worker etc.). She allows the authorised persons objectively and operatively to make administrative decisions. Under such circumstances they own the sufficient information received on good authority.

The System of electronic document circulation in comparison with the document circulation organised in writing, allows to make interaction procedure between the worker and the employer, and also between structural divisions of the organisation as much as possible transparent.

There is a possibility kategorirovanija information depending on powers of the addressee («for internal using»; «the office information»;

"Trade secret" etc.). Possibility of reception of the confidential information is thus excluded by unauthorized persons.

Conducting document circulation at employers - the state bodies is regulated in the centralised order. So, for example, in the Governmental order of the Russian Federation from 15.06.2009 № 477 «About the statement of Rules

Office-works in federal enforcement authorities »[63] contain the basic requirements to the document circulation organisation in federal enforcement authorities.

Thus according to item 25 of Rules of office-work in federal enforcement authorities with a view of the account and search of documents in system of electronic document circulation of federal enforcement authority obligatory data on documents according to the appendix are used. In system of electronic document circulation of federal enforcement authority additional data on documents can be used. The Section in turn VI of Rules completely is devoted features of work with electronic documents in federal enforcement authority.

Thus, in federal enforcement authorities document circulation conducting in the electronic form is supposed.

The considerable quantity of employers - the commercial organisations and individual businessmen, especially with numerous staff of workers, actively is used by systems of electronic document circulation for the organisation of the account, storage, transfer and sending of the internal and external correspondence.

To it also promotes raised resursoemkost informatsionnotelekommunikatsionnyh networks. The given feature allows to store in electronic form huge volumes of the information without a damage to its integrity and availability. [64]

4) Reduction of the material inputs connected with written document circulation, and, as consequence, liberation of resources which can be meted on the is social-useful purposes (including, for example, on wages indexation).

The given advantage concerns directly the form of fastening of legally significant information, apropos or with which use interaction of the worker and the employer is carried out.

The written form ipso facto means registration of the written document which represents material object on which by means of various specialised tools the symbols serving by expression of thoughts of the writing are put. In the given context the term «the electronic document» differs from the written document only the external form of registration of thoughts of the subject by means of an electronic file with electronic computer use.

From the given position it is represented V.A.Gadasina and V.A.Konjavskogo not absolutely proved the approach, considering, that the traditional (written) document is intended for processing by conceiving subjects, people, and the electronic document - for processing by technical objects, equipment rooms and computer facilities software. Being based on it, the given authors come to conclusion, that «the term« the electronic document »is a combination of essentially different concepts of a microcosm (electronic) and a macrocosm (document) though the maintenance of concept and does not cause bewilderment». [65]

In such approach authors offer additional essence which only misleads concerning the valid nature of the electronic document.

The most corresponding essence of the electronic document should recognise S.I.semiletova's position: «Now by preparation of electronic documents the wide circulation was received by principle WYSIWYG - what you see is what you get (« that you see receive »). It means, that the electronic document by means of means of a computer drawing for the display screen is displayed as a virtual image of the paper document standard real or habitual to us or the documentary photograph with all necessary requisites, and the display screen is considered as a desktop on which work with documents. Such electronic images of documents are easily understood, easily read by any competent person». [66]

It is important to designate the basic sign (requisite) of the electronic document. In the literature it is fairly noticed, that created on the computer

The documentary information and "issued" by necessary requisites by rules is yet high-grade electronic document, and only the original document on the paper material carrier. A digital signature - the basic requisite and discriminating line of the electronic document. [67]

Registration of the written document is interfaced to execution of material inputs which taking into account written document circulation in the organisation can constitute the considerable sum of a line of expenses of the organisation on materials and the equipment (a paper, printers, writing-materials, folders, cases for documents, etc.). [68]

Electronic document circulation in the organisation owing to the specified specificity does not require additional material inputs, saves money of the employer and the working areas on which the documentation (including archival) is stored.

According to Ministry of culture of Russia, as of 2009 in the Russian organisations it was stored more than 122 million affairs on staff. Only in Sverdlovsk area according to the State archive of documents on staff of Sverdlovsk area as of 01.10.2017 stored there are 534 funds, 95713 units of storage. To [69 33 million more affairs it has been handed over in the state and municipal archives at liquidation of the organisations in 19912009. Cost of storage of one business within a year (in the prices of 2013) constitutes 40 roubles (for date of a writing of the dissertation the price for corresponding service has essentially grown - for example, in Sverdlovsk area it constitutes 200 rbl. for storage unit). [70] By the spent calculations if all documents created, for example, in 2000, are stored in the state and municipal archives of 75 years, expenses will constitute 4,5 billion rbl. At commutation of storage till 20 years expenses decrease to 1,2 billion rbl. [71] changes are made To the current legislation about archival business, [72] concerning commutations of storage of documents on staff (created after 2003) till 50 years.

Completely "paper" document circulation to refuse at the present stage it is impossible, as current legislation requirements do not allow to exclude the written documentation from practice. At the same time, taking into account gradual transition of the state bodies (including vessels) on «electronic rails» the primacy of the electronic form of the documentation, according to the author, will take root further eksponentsialno.

5) Decrease in psychoemotional loading on the parties of the relations labour and directly connected with them, existing at their personal interaction.

The given advantage is shown in bolshej degrees concerning the worker, as more weakness of labour relations. The depersonalized interaction by means of electronic means (e-mail, electronic document circulation) allows to lower loading on mental health of the worker. It excludes any personal contacts between subjects (both verbal, and nonverbal) and concentrates on question essences in which occasion interaction is carried out.

The written form of interaction possesses the same advantage, with that only the reservation, that the big expenses are necessary for it material and temporalnyh resources (a paper, raspechatyvanie the document, time of passage of the document in the organisation, etc.). [73]

Electronic ways of interaction stimulate use by the worker and the employer of the formalized means of the decision of questions arising between them. The parties understand, that the inadmissible reference (including "mobbing") will be fixed by an objective source of potential proofs of misbehaviour.

In the literature the problem connected with maintenance of effective protection of the worker from mobbinga and stress recently is often shined. [74] it is possible to generalise put forward by movers and in most general view to present ways of protection against such negative phenomena. All of them are reduced to fastening of various ways of protection of already broken right of the worker, i.e. struggle against a consequence, instead of against the reason.

Such position is proved enough, after all with the reasons mobbinga or stress it is very difficult to struggle, as they are caused by an inequality in position of the worker and the employer.

The advantage of use of the electronic form of interaction of the parties of labour relations formulated by the author allows greatest possible to exclude conditions (instead of the reason or a consequence) negative psychophysical influence of the employer on the worker.

Thus the electronic form of interaction of the worker and the employer starts to get dominating character in labour relations, that in turn leaves the mark and on managerial processes by the personnel. As marks V.V. Artamonov: «Dynamics of labour legal relation recognises that development of information, computer and telecommunication technics makes essential changes to the maintenance of the public relations connected with management by the personnel. There is absolutely other management style people, management methods and the control over labour results« on a distance »when modes of flexible working hours are practically inapplicable, vahtovogo a method, even nenormirovannogo the working day» [75] are formed.

6) Availability of proofs in case of occurrence of the individual labour dispute.

In most cases the worker does not have evidentiary base at the reference with the claim in court. A principal cause - the majority of documents and other proofs (videorecording, witnesses), are at the employer or under its control. This problem is for a long time known to judiciary practice. It is a natural consequence of unequal actual position of the worker and the employer.

The constitutional Court of the Russian Federation in definition № 1320-O-O has noticed from 13.10.2009, that «the legislator considers not only economic (material), but also organizational dependence of the worker on the employer (in which order there is a basic file of proofs on business) owing to what establishes due processes of law of protection of laws of master and servant of workers by consideration of labour disputes in court without which granting possibility of realisation by the worker-claimant of its laws of procedure, and as consequence - the rights to fair consideration of dispute by court, would remain poor» [76].

Owing to specificity and a variety of labour disputes on the worker the onus of proving of various circumstances is assigned. According to subitem of item 22 of the Decision of Plenum of the Supreme Court of the Russian Federation № 2 from 17.03.2004 if the claimant (worker) approves, that the employer has forced its tax the letter of resignation at own will this circumstance comes under to check and a duty to prove it is assigned to the worker. According to paragraph 2 of item 4 the Decision of Plenum of the Supreme Court of the Russian Federation № 52 from 16.11.2006"if the employer are proved legitimacy of the conclusion with the worker of the contract on a full liability and presence at this worker of shortage, last is obliged to prove absence of the fault in detrimenting». [77]

The majority of the documents, concerning labour activity of the worker, are at the employer. The legislator in item 62 TK the Russian Federation fixes a general law of the worker to receive from the employer necessary documents. In separate articles TK the Russian Federation is the right is concretised (on request of the worker the employer obliged to give out it properly the certificated copy of the order on employment (item 68 TK the Russian Federation); on request of the worker the employer is obliged to give out it properly the certificated copy of the order on the employment contract termination (item 84.1 TK the Russian Federation)) or transformed to a duty of the employer (one copy of the employment contract is transferred to the worker (ч.1 item 67 TK the Russian Federation); the employer should hand over to the worker a settlement leaf (item 136 TK the Russian Federation)).

Fastening of the corresponding right of the worker or duty of the employer in practice does not guarantee reception of the necessary document by the worker, even under the threat of attraction of the employer to administrative responsibility.

In the light of the given problem the lack of the paper form of interaction of subjects of labour legal relation - attachment to the concrete material carrier which is at the employer is shown.

The electronic way of an information transfer allows the worker to keep at itself the necessary documentation. In case of occurrence of dispute the worker can independently generate evidentiary base without participation of the employer.

The electronic form of interaction of subjects of labour legal relation is not limited only to the listed advantages. At the same time, they are the most essential and convincing for transition from the paper form of communications on electronic.

The advantages of the electronic form of interaction listed in the present paragraph to the full open advantage of its use, not being limited to material factors. The all-round analysis of object of research has shown, that positive changes from electronic interaction extend on an organizational and psychological component of labour relations.

As well as any phenomenon of the social validity created by the person, electronic interaction possesses the specific lacks. It is necessary to carry volatility, technical complexity, dearness of material resources to them, bystrorazvivajushchijsja a segment of information technologies («information technologies - most bystrorazvivajushcheesja the phenomenon of the social validity» [78]) and others. However the listed factors do not level advantage of the electronic form of interaction and can be overcome in the future. Progress always demands efforts and time.

The carried out analysis of advantages of electronic interaction of subjects of the law of master and servant allows to allocate the major problem of the labour legislation at the present stage of its development. The legislator should develop adequate to a today's condition of public relations rules of law for wide introduction in practice of electronic ways of interaction of subjects of the law of master and servant.

Despite seeming minority of an investigated question in comparison with fundamental problems of labour relations (questions of a payment, working hours etc.), modernisation of a legal regulation of interaction of the worker and the employer regarding their electronic communications will allow to deduce actual position of the worker and the employer on higher level.

<< | >>
A source: Tumanov Alexander Alexandrovich. Electronic interaction of subjects of the relations labour and directly connected with them: legal aspect. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg - 2018. 2018

More on topic § 2. Advantages of electronic interaction before traditional forms of interaction within the limits of the relations labour and directly connected with them:

  1. §3. Principles of legal regulation of electronic interaction of subjects of the relations labour and directly connected with them
  2. §1. Concept and ways of electronic interaction of subjects of the relations labour and directly connected with them
  3. the Chapter I. The basic approaches in theoretical judgement of electronic interaction of subjects of the relations labour and directly connected with them
  4. the Chapter II. Separate ways of electronic interaction of subjects of the relations labour and directly connected with them: theanalysis of existing practice
  5. Fogs Alexander Aleksandrovich. Electronic interaction of subjects of the relations labour and directly connected with them: legal aspect. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg,
  6. Chapter 2. Judicial certificates of the EuropeanCourt under the human rights, individually regulating labour and other relations directly connected with them
  7. § 3. Judicial certificates of the European Court under the human rights, individually regulating relations connected with reasonable terms of consideration of labour and other disputes directly connected with them, and also reference to the court terms
  8. SHVETSOVA MARINA VJACHESLAVOVNA. JUDICIAL CERTIFICATES of the EUROPEAN COURT UNDER HUMAN RIGHTS In SPHERE of LABOUR And OTHER LEGAL RELATIONS DIRECTLY CONNECTED With THEM. The dissertation on competition of a scientific degree of the master of laws. Moscow -, 2016 2016
  9. Chapter 3. Mechanisms of regulation of a labour market, their development and interaction principles
  10. kinds and forms of interaction of the inspector and operative Divisions
  11. § 6. The General characteristic of forms of interaction of the World Trade Organization with the international non-governmental organisations
  12. § 1.3. Is administrative-legal forms and methods of interaction of police with institutes of a civil society.
  13. § 1. Legal grounds and interaction forms in national payment system of Russia
  14. 1.1 Forms and the contents of integration interaction of subjects of the local food markets
  15. 2.2. Communicatively-creative aspects of interaction of services on public relations of authorities with an audience
  16. Traditional features of the labour law status of a medical employee