IX Международная студенческая научная конференция Студенческий научный форум - 2017

The expanding scope of principles, rights and freedoms in any social sphere doesn‘t only stipulate a new approach to the interpretation of constitutional provisions, but can also be a fundamental for the alternate approach for regulation of arising relations.

A new system of economic management, transfer of industrial engineering into the private sector, reduction of the state intervention level into the regulation of diverse social relations caused fundamental changes in constitutional and legal regulation of social relations in the field of hired labour. On the one hand the government remains a fundamental guarantor of legal regulations of employment relationship. On the other hand, not being a privy (part) of these relations, it tries to liberalize this sphere, giving priority to labour freedom.

The principle of labour freedom was laid in the article 37 of the Constitution of the Russian Federation of 1993 for the first time. Its meaning has provoked active discussions up to the present among modern jurists and seems highly complex and interesting¹.

In the Constitution of the Russian Federation it is expressed: «Labour is free. Everyone shall have the right to freely use his labour capabilities, to choose the type of activity and profession», it can be considered as a constitutional guarantee for labour for every citizen in any by him chosen form.

In this case the principle of labour freedom shall be understood as a guarantee for realization of the opportunity to work (or not to work), that is to be engaged (or not to be engaged) in socially useful work of any kind.

The forms of the labour rights enforcement are variable. They may be: work under the contract with an employer, state service under the service contracts in the function of the government employee, military service under the contract in the Russian Armed Forces, work, that will be executed under civil law contract with entities and natural persons, and many other forms, among them occupation with an individual labour activity².

Moreover a principle of labour freedom provides for everyone an affordability of individual intention declaration that is directed aat refusal to perform of one or another work (activity).

Therefore, considering the constitutional principle of labour freedom in such a (wide) aspect, it may be said, that its content includes the right for everyone to be directed with his capabilities for labour by entering into diverse social relations on participation in work, as well as in the field of the hired labour as a worker (employee), much as the right to refuse from such activities.

In the juridical literature certain statements have been and are expressed that in the Constitution of the Russian Federation the right to work is not freely vested, it is only defined as «the right to work under conditions, that correspond to safety requirements and hygiene», that was interpreted as the right of « labour protection», that labor freedom is not in and of itself right to work.

Analyzing the constitutional principle of the labour freedom in this regard it would be reasonably to review relationships between the employee and employer that have in recent times become very actual.

The provisions of Article 37 of the Constitution of the Russian Federation of 1993 on labour freedom correlate completely with norms of Article 8 of the Constitution on liberty of economic activity, because liberty of economic activity is closely related to the application of the hired labour. Not much areas of economic activity can be found, in which workers would not be wanted, that production function exercises. Proclaiming the liberty of economic activities, the lawmaker (from the perspective of the liberal legal doctrine) declares highly logical labor freedom.

From this it follows that a free entrepreneur in an economic realm that works upon the terms of equality and fair competition turns to the employer in relationship with the employee that will be hired for production needs. Upon that an employee is free to offer his services to the employer. The employer himself that participates alone in the function of the consumer of hired labour is not bounded in realization of his expression of will on entry into employment relationship.

Furthermore the employer and employee are not implicitly equal in their economic situations. Economically strong point that dictates its terms is the employer, who is a regulator, who «works» under Article 8 of the Constitution of the Russian Federation and guarantees liberty of economic activity (competition), cannot possibly be relevant in relations in the sphere of work³.

Consequently labor freedom from the perspective of the system analysis of Russian statehood, economic realm cannot possibly be interpreted as an equality between the employee and employer within the employment relationships and correspondingly in the questions of their guaranteeing.

1 Fedin V.V. Correlation principles of labor freedom and right to work // Lex Russica – scientific works MSAL. 2004. N 2. P. 411 – 435.

2 Anishina V.I., Poponov Y.G. Labor freedom and right to work? // Journal of Russian law. – 2007. N.4.

3 Gerasimova E.S., Krylova O.S. Labour rights for everyone. – M., ANO “Centre for Social and Labour Rights”--. 2010. P. 19.

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