Simutina I. V. Labour contract: some problems of theory and practice
The article is devoted to some problems of legal regulation of the labour contract as a lawlegal fact in labor law. In particular, the question of "disguised employment relationships" is considered. In modern legal practice there are many disputes about the finding of stay of persons in labor relations, not civil relations. In this regard, the novels of labor legislation concerning the prohibition of access to work without a labor contract are analyzed. The suggestion to supplement the Labour Code draft by the norm, which provides for a presumption of an employment relationship, is brought.
Radical rejection of the actual admission to work as an independent legal fact, that gives rise to the employment relationship, may cause adverse impacts on workers and violate basic principles of labor law. Consequently, the actual admission to work should have the same effects as documented employment. To improve the mechanism of protection of the rights of workers believe it is necessary in the draft Labour Code of Ukraine clearly identify provisions that would avoid the most contentious issues arising in the practical application of such grounds of the employment relationship, the actual admission to work. Positive and such that the interests of employees should recognize the changes made to the above mentioned Law Art. 235 of the Labor Code of Ukraine on employers' liability in case of actual admission of the employee to work without issuing an employment agreement (contract), obtaining a worker on a part-time, when actually doing the job full-time, set the enterprise, and payroll (compensation) without charge and pay a single fee for compulsory state social insurance and taxes.
However, the above-mentioned legislative innovations to prohibit use the work of employees without issuing an employment contract do not solve the common problem today: making civil agreements to perform certain works or services rather than proper in such cases the employment contract.
It was found that the process of the conclusion of the employment contract today is complicated because of the lack of a legal obligation to conclude a contract in written form, as well as a clearly defined list of documents, that are provided by a person in the employment contract.
It is proposed to prohibit an employer to require additional, unforeseen documents, that list and collect information about the person's previous work, its financial position and other data, except for special cases provided by law. In terms of the wider practice of using various methods and systems of professional selection (tests, exams, etc.) is extremely important to secure legal guarantees of employees in the professional selection process, which are absent in the current labor legislation.
The labor law, that prohibit unreasonable refusal to work, is more declarative and ineffective, due to the shortcomings of legal regulation of this issue. Thus, the law currently does not define nor reasonable nor unreasonable refusal to work. The concept of groundless refuse in a hire for job is considered. Lack of legally defined clear criteria for selection of candidates should be carried out at any position. By improving the legal regulation of grounds and procedure of the refusal to work it is necessary to consider the interests of the worker, which in unemployment and serious competition in the labor market is "dependent" on the decision of the employer. In particular, the new Labor Code should include the recognition criteria for refusal person in employment lawful or unlawful and the employer's obligation to state the reasons for the denial in writing if a person, who has been denied, addressed such a request.
Key words: employment contract, unjustified refusal to hire, contract of employment, the actual admission to work, lawmaking legal fact.
