Saktaganova Indira Sovetovna,

Associate Professor, Candidate of Law

Eurasian National University of L.N. Gumilyov, Astana, Kazakhstan

Kurbanova Dinara Kasenovna

2 year Master’s Degree student of Scientific and Academic program of

The Faculty of Law of the Eurasian National University after Gumilev L.N., Astana, Kazakhstan

CURRENT PROBLEMS OF LEGAL REGULATION OF LABOR HOURS

The spread of the part-time work week or part-time work day system is becoming more vital today. Part-time work can serve the interests of both employees and employers.

Demand for part-time workforce is caused by a number of objective factors: the automation of production, i.e., the creation of automated factories, farms in agriculture with a small number of workers; the emerge of new technologies that do not require the constant presence of an employee in the workplace; automation of the service industry the symbol of which is an automated "office" where paper work is replaced by electronic means of transmission and storage of information.

The creation of part-time workplaces is due to structural shifts in the economy, which caused a significant expansion of service and infrastructure industries, as well as strategies for adapting entrepreneurs to the complicated mechanism of the reproduction cycle and its fluctuations. All this makes it economically more profitable to apply a part-time work [1].

Promotion of part-time work is one way to solve the problems of unemployment.

In addition, the role of subjective factors is increasing.

Employers are interested in integration of part-time work since it gives an opportunity to solve organizational or technological issues, minimizing loss of profits, ensuring high flexibility of the manpower when changing the scope of work, facilitating the employer to attract additional labor required at the most busy hours of the working day.

It should be noted that productivity of part-time workers is significantly higher than that of full-time workers which makes part-time work also attractive for employers.

Part-time workers can combine work with other types of activity. Significant growth of the industry infrastructure and services expanded the possibilities of women recruitment. For many of them who have children, part-time work is the only opportunity to work. Full-time students also prefer to work part-time. Elderly people would like to work part-time as well.

The Labor Code of the Russian Federation provides a possibility to reduce the norm of working hours (full or shortened), which means the establishment of part-time work by agreement of the parties as per the employment contract. If a pregnant woman, one of the parents (guardian) having a child under the age of fourteen (a disabled child under the age of eighteen), a person looking after a sick family member in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation ask for a reduction of working hours, the employer is required to establish part-time work (shifts) or part-time workdays at their request. Part-time work for the period of up to six months can be established at the initiative of the employer in order to keep the job for other workers, taking into account the opinion of the elected body of the primary trade union organization and in accordance with the procedure established by article 372 of the Labor Code of the Russian Federation for the application of local regulations, in cases where for the reasons related to changes in organizational or technological working conditions (changes in technology and production, structural reorganization of production, other reasons), the terms of the employment contract specified by the parties cannot be retained, with the exception of the labor function of the employee and may result in massive dismissal of workers.

The possibility of establishing an incomplete rate of working hours allows ensuring the social interests of workers in certain situations, the implementation of the protective function of labor law. However the protective function of labor standardization as a component of the protective function of labor law is not yet realized fully.

1. The Russian legislator ignores the world experience in the field of protection of the elderly people.

In Russia there is a general opinion that people of retirement age are less able-bodied and are undesirable workers. In foreign countries, on the contrary, "the human resources policy of the administration of enterprises in developed countries is not built on the displacement of pre-retirement age from work. It has become more profitable to invest in the preservation of the working capacity of high-skill carriers who tend to show great diligence in labor "[2]. Indeed, experience shows that workers of older ages are less distracted by non-essential actions and conversations; differ by higher labor discipline [3].

Thus workers of retirement age look more attractive to employers who want to have the most qualified employees and receive higher productivity than young workers. The only difference is that from the point of view of physiology, for older workers it is more difficult to work in production, where quick and accurate reactions are required. Also, for instance, when working at conveyor it is difficult for elderly people to sustain the general pace that young workers can manage. Older workers perform their usual work, but they quickly get tired if new tasks emerge. Considering these features of older workers, it is possible to establish them optimal working conditions, enabling them to perform their labor functions in a highly effective manner.

ILO Recommendation 162 on Older Workers (1980) [4] contains a wide range of standards designed to alleviate the situation of older workers in production: reducing the normal working hours, the gradual reduction in the working hours of all older workers at their request during the established period preceding the retirement age; permission to determine at their discretion the working time regime, in particular part-time, with flexible schedule, etc. [5]

Using the recommendations of the ILO and foreign experience, it is possible to introduce relevant provisions in the labor legislation, for example, to include in article 93 of the Labor Code of the Russian Federation stipulating that on request of employees of retirement age, as well as persons who have reached the age of 53 for women and 58 for men, part-time work shall provided.

The issue of application of labor in part-time work was studied by Kuleshova L.I. In the research she pointed out that the use of part-time work of pensioners is beneficial for society both from the social point of view (promoting longevity and maintaining the vitality of workers of older age groups) and economic (there is no need for physiologists to reduce the production rates, because the reduction of the workload will be achieved by reducing the number of working hours). She can be opposed that physiology of older people in most cases, one should not even speak about part-time schedule, shortened working day [6].

The experience of foreign countries in addressing employment issues on part-time basis for elderly people deserves attention. Thus companies are provided with subsidies usually in the form of benefits applied to the payment of social insurance contributions [7]. As experience has demonstrated granting such benefits is the optimal solution in resolving the issues of employment of pensioners on terms of part-time work. Perhaps this experience should also be used in Russia to reduce the level of unemployment and job rotation. In addition "application of part-time work assumes a relative stability of labor activity of workers, a high level of labor norms and a clear organization of work" [8].

2. Often there can be difficulties in determining the standard of working hours for employees who are recruited for part-time work. The legislation does not establish minimum and maximum time limits for labor. As a rule the solution of this issue is the double reduction of working hours. This takes into account the interests of both the employee and the employer. Unlike, for example, the cases when the employer is obliged to establish an incomplete rate of the working day (shift) or working week for a pregnant woman in strict accordance with her request or when an incomplete rate of working time is established by agreement of the parties.

In the first case, the interests of the employer are not secured, since the worker may be ask to significantly reduce the norm of the working day (shift) or working week, which may lead to difficulties for the employer in organizing the work. In the second case, the interests of the employee are not ensured, since the employer may not establish that norm of the working day (shift) or the working week which the employee expects and which would allow him to combine work with another type of activity. In foreign countries, this issue is settled as follows. In Italy the minimum part-time work is established - 4 hours with a working week of 12-24 hours. [8]

Therefore in order to coordinate the interests of the parties of labor relations, protect their rights and interests, it is necessary to legislatively resolve the issue of the norm of the working day (shift) or working week. It can be established that the working time for part-time work should not exceed four hours a day and within a week or other accounting period should not exceed half of the weekly norm of working time or the rate of working time for another accounting period.

3. The opinion of Matsyuk A.R. about the limitation of the scope of labor rights, depending on the measure of labor contribution is worthy of attention. It will be fairer, for example, to grant appropriate vacation period if the minimum level of labor is met. Therefore it is proposed to establish a proportional relationship between the actual measure of labor and the scope of some labor rights. Otherwise the workers who fulfill the full norms of working hours receive exactly the same "set" of vital benefits as workers who do part-time work [8].

One of the factors affecting the increase in the actual length of working hours is the establishment of an unregulated working time regime for employees.

According to 101 Article of the Labor Code of the Russian Federation, unregulated working day is a special mode of work, according to which individual workers with the direction of employer occasionally as the circumstance arises may be called out to perform their labor functions over and above their normal working hours. The list of the positions of employees with unregulated working day is defined by collective contract, agreements or local regulatory act, taking into account the opinion of the representative body of employees.

Such regime can be established for workers whose daily working hours are not always limited to normal working hours; as well as for workers whose work does not fall under accurate accounting in time; and for persons who distribute their working time at their own discretion (directors, their deputies, technical and business personnel).

By order and if necessary, employer occasionally may call in the employees to perform their labor functions, which does not allow to turn this regime into systematic overtime beyond the established working time. Involvement of the employee to work beyond the established norm of working hours does not require his/her consent.

For work in a unregulated mode, the employee has the right to an additional annual paid leave for at least 3 days.

Thus, the general characteristic of unregulated working day according to labor legislation makes it possible to distinguish the features of this regime.

1. Work of employees with unregulated working day is normalized in time. On the one hand, its duration cannot be less than the norm of working hours’ duration. On the other hand, it is fundamentally limited not only by the range of responsibilities and scope of work for the position held, but also by the maximal limit of the respective norm of working hour [6]. Allowed overtime beyond the norm of the working day does not turn unregulated working day into a long working day. At the same time, the current legislation does not stipulate any clear limits for off-hour work. In this case, it is necessary legislatively to fix the maximal normal hours for involving the employee to work beyond the established normal working time in the order of unregulated working day. For example as it was done with respect to the overtime norm of working hours’ duration. Another variant for solving this problem is to establish a norm of daily rest time.

2. Work beyond the norms is allowed only occasionally as the circumstance arises. The concepts "as the circumstance arises" and "occasionally" are indistinct. Legislator does not decipher them either. Therefore, employer any working situation practically can subjectively consider as the reason for involvement of employee with a unregulated working day to work beyond the normal working time.

3. Overtime is compensated by additional leave. Leave for at least 3 calendar days (and as a rule, employers provide just 3 days) does not fulfill its compensatory function due to the uncertainty of the concepts "as the circumstance arises", "occasionally", establishing cases of involvement of employee with a unregulated working day to work beyond the norm of the working time, because off-hour work in most cases, or rather always, is longer than the additional leave granted to the employee. In this regard, it is necessary legislatively to increase the minimal annual additional paid leave at least up to 7 days.

This suggests of the necessity to develop legal guarantees that would ensure strict implementation of the legal regulation principles of unregulated working hours, proceeding on the basis that the duration of the working hours of this category of workers, taking into account the additional leave granted to them, should generally be equal to the norm of working hours. [7]

4. The list of positions of employees with unregulated working day is established by a collective contract, agreements or a local regulatory act, taking into account the opinion of the representative body of employees. Practice shows that such an order of determining the lists of positions of employees with unregulated working day is ineffective. In most organizations, there are no such lists, although there are workers with unregulated working day. These facts testify of the "arbitrariness" of employers in establishing for employees unregulated working day. In some organizations, lists are established by order, but without taking into account the opinion of the representative body of workers.

All this speaks about the need to improve the quality of legal regulation of unregulated working hour.

5. Particular importance has the issue of the grounds for introducing unregulated working day for the certain positions. The legislation fully transferred these issues to the local level of legal regulation, where employers, at their discretion, enter unregulated working day without any sufficient grounds, which allows them to involve employees to work beyond the norms and with a minimal compensation of a three-day annual additional paid leave.

Thus, it is necessary to limit the acceptability of unregulated working day regime. As a first step, the Government of the Russian Federation needs to approve Model lists of positions for which unregulated working day can be introduced. Further, it should be included provisions in the Labor Code of the Russian Federation that, firstly, unregulated working day can be established only in accordance with these Model lists; secondly, listing the positions, not considered in the Model Lists, does not entail a regime of unregulated working day for employees holding these positions. [8]

Perhaps, it is also necessary legislatively to forbid the establishment of unregulated working hours for non-adults, pregnant women; workers working on hazardous, heavy and dangerous works, as it is done for overtime work, combined work, otherwise workers are losing the guarantees to limit the norm of working hours.

In general, the proposed provisions will help to improve the work management and increases the reality of the established working hours’ norms.

Notes

1. Working hours in capitalist countries: problems of exploitation, unemployment and class straggle. M., 1985. P. 87.

2. I.Ya. Kisselev, Labor law of Russia and foreign countries. International labor standards. M., 2005. P. 399.

3. L.M. Kuleshova, Labor service on part-time regime, М., 1987. P. 29.

4. Recommendations of International Labor Organization «On older workers», No. 162 dd. 1980, Conventions and recommendations, accepted by ILO. 1957-1990, T. P. Geneva, 1991. P. 19271934.

5. N.T. Vishnevskaya, Regulation of working hours as means of easing of unemployment problems // Working abroad. 2000. No. 1. P. 36-47.

6. M.V. Molodtsov, V.G. Soifer, Stability of employer-employee relationship, М., 1976. C. 69.

7. Working hours in capitalist countries... P. 96.

8. A.R. Matsyuk, Measure of labor and consumption, Kiev, 1988. P. 31.