Vyshnovetska S. V. On transformation of Labour Law field to the Employment Law
In this article an author researches the transformation of the labour law branch to the employment law due to the fact that flexible forms of employment characterized by the absence or modification of one or more classic signs of traditional labour relations were massive widespread in the late XX century. In the result of considerable spread of atypical labour agreements that do not fit into the classical scheme of labour relations, the need of proper legal regulation appeared. However because of the legislative regulation the borrowed work finds legal exculpation in application of civil law norms which supposedly allows regulating relations in this area by using contracts of the paid provision of services. But civil law does not provide for those social protection mechanisms that are inherent to labour law.
Analysing different points of view an author decides the question on correctness of association of norms regulating labour relations of all employees into a single complex legal formation – the employment law. Herewith an author underlines that it would be wrong to denominate the complex formations as fields of law as they do not express differentiation of similar norms, but integration of norms of different fields in sphere of activity which is single by the content and social objectives.
Legal categories of employment and job placement are researched. In particular, by making analysis of the Law of Ukraine “On Employment of Population” an author concludes that by the content the employment is divided into working and non-working ones. And the term “labour law” by itself indicates that people labour activity forms the content of relations regulated by this field of law. Thus, the field of labour law includes only working employment relations arising under the labour contract. Therefore, the employment can not be reduced just to the “the labour relations of all employees”.
The relations on job placing which is the part of labour law are only the constituent of relations on ensuring the employment. In addition, the subject of labour law includes only job placing relations of particular employer and branch belonging of legal relations on job placing generally depends on its direction.
It is underlined that intermixed or inter-branch legal institutions differ from branch institutions because they are formed by norms of different fields of law. That is why sometimes they are called as complex. The complex legal institutions include a set of norms regulating employment. The author notes that the question of legal nature of the complex legal institutions is still unexplored and largely debatable.
Analysing special features of inter-branch legal institutions, legal nature of so-called complex branches of law an author infers that transformation of labour law branch to the complex legal formation called as “the employment law” is groundlessly. It is grounded that there is no need to bring together the norms regulating such heterogeneous relations. It will make only negative impact on the law-enforcement practice, i.e. there will arise problems connected with unreasonable use of methods one field of law where there is a need for an objective application of methodological tools of other field of law, other ways and means of legal regulation.
It is underlined that within labour law branch it is important to ensure as legal regulation of relations of traditional employment arising under the labour agreement, as legal regulation of relations of non-traditional employment, the legal form of existence of which are the atypical labour agreements by developing their structure. For these types of atypical labour relations it should be established and developed the labour contract construction as a dictionary of the Ukrainian language prepared by the Institute of Linguistics named after O. O. Potebnya of the National Academy of Sciences of Ukraine contains a definition of the labour contract as a contract on execution of any work concluded between enterprise and extraordinary employee.
It also should be the main trend of scientific research in this branch.
Key words: employment, traditional employment, non-traditional employment, complex legal formation, job placement, complex inter-branch legal institution.