Problems Of Changing Labour Legislation In The Context Of Improving Labour Efficiency

Legal and organizational basis for improving labor efficiency in the Russian Federation

On July 1, 2016, the provisions of Federal law dated 02.05.2015 No. 122-FZ “On amending the labor code of the Russian Federation and articles 11 and 73 of the Federal law “On education in the Russian Federation” related to the implementation of professional standards in assessing professional suitability of the employee by the employer took legal effect.

The planning and distribution system of personnel training that existed in Soviet times optimally solved the problems of correlation of labor market needs for personnel and the system of training specialists by educational organizations ( Kelchevskaya & Shirinkina, 2019). With the transition to market relations, this system was destroyed. Fierce competition contributed to the development of the business, while educational processes and technologies lagged behind in their development. The material and technical base of educational organizations did not have time to improve in accordance with new needs of production and economy ( Svirin & Titor, 2016).

Existing problems of the reform on improving labor efficiency

The main idea of the transition of Russia to a new personnel assessment system based on professional standards was associated with systemic changes in the ways of interaction between educational organizations and end users of educational services - employers. It was supposed to link the expected results of educational activities with strengths of specialists in sections: know, be able, own to reduce the cost of retraining staff and the time for the young employee to be included in the labor process. That is why the main developers of professional standards are business communities, professional groups representing a specific sector of the economy. At the same time, the interest of employers in the formation of necessary professional competencies among students should have been expressed in establishing closer ties between educational organizations and real employers. However, this process is either not observed at all, or occurs spontaneously, or is formal in nature as the fulfillment of mandatory requirements of the relevant ministry in the field of education to include practitioners among teachers and participants of graduation tests. According to the National Qualifications Development Agency, most employers have to retrain young professionals at their own expense ( National Qualifications Development Agency, 2019).

In addition, the lack of a systematic approach to the formation of national qualification standards leads to the emergence of problems of a purely legal nature: regulatory legal acts of various levels (from laws to by-laws) may contain requirements for filling positions in a number of professions and positions that have public law significance (for example, judge), social significance (doctor, teacher), are classified as dangerous, harmful ( Skripnikova, Shirmanova, & Korobko, 2019). In this case, a conflict arises between the professional standard, which is a by-law, since it is approved by the Ministry of Labor of the Russian Federation, and other acts of the same or higher level. A similar situation has developed with specialists in the field of medicine. The situation is further complicated by the fact that professional standards do not have equal strength for all participants in the labor market. So, standards are mandatory only when requirements for a certain position are established at the federal level, for example, at the level of the law ( Article 195.3 of the Labor code of the Russian Federation adopted by the State Duma on December 21, 2001). Thus, in the same field of activity, the employer will apply professional standards to one of his employees, but not to others. A unified approach to the application of professional standardization is established only in relations between organizations of the budget sector of the economy ( Meeting of the legislation of the Russian Federation, 04.07.2016, N 27 (part III), Art. 4484).

The interweaving of private and public interests is characteristic of labor law, but at the same time, the tasks of unifying qualification requirements are not fulfilled. It means that the approach of employers to accept workers and set requirements for labor duties remains varied and subjective. This leads to the collapse of another goal of professional reform - achieving an equal approach to employees in employment, personal selection, proficiency testing, lowering the level of subjectivity in making managerial decisions. In addition, in relation to employees who, according to their qualification requirements, turn out to be inconsistent with professional standards after their introduction, the existing draft regulatory acts do not provide for the employer's obligation to train or retrain these employees ( Smirnova & Poluektova, 2019).

Another legal issue of the professional standard is the problem of changing the volume of requirements for a position in view of newly introduced professional standards in organizations. Employees whose scope of duties will be expanded under new standards are entitled to refuse to continue work in accordance with Art. 74 of the Labor code of the Russian Federation adopted by the State Duma on December 21, 2001. However, such a refusal is the basis for termination of the employment contract with the employee. At the same time, the existing judicial practice confirms the legitimacy of requirements of employers to impose additional duties within a certain position. Meanwhile, the increased volume of labor tasks performed under general principles of labor law should lead to higher wages. But, since this area relates to the area of the employer's activity not controlled by the state, the employee will not be able to legally oblige the employer to pay a higher wage.

If we talk about a general assessment of the current system of professional standardization, it should be noted that the traditional approach to deep differentiation of types of professions and positions that prevailed during the Soviet era has been preserved in general in Russia, which reduces the possibility of complex application and use of standards as model for a certain circle of professional competencies. Therefore, despite the introduction of the 1301th professional standard, we need more standards. In addition, the classification of types of economic activities according to which standards are adopted differs from the All-Russian classifier of economic activities (OK 029-2014. The All-Russian classifier of types of economic activities”, approved by Order of Rosstandart dated January 31, 2014 No. 14-st).

It is necessary to conduct a deeper comparative analysis (for example, based on qualification guides) of already approved professional standards and the introduction of planned foundations for their development to cover the full range professional standards. Another disadvantage of the existing system of professional standardization is the uneven distribution of the number of accepted professional standards by industry. It is clearly seen in the following diagram.

See Full Size >

The identified imbalance leads to the fact that most of professions in demand in the economy are not covered by current professional standards. According to the Federal State Statistics Service, about 40 percent of the Russian population is engaged in industrial production and trade, the service sector ( Federal State Statistics Service, 2019).

As for trade, it does not have any requirements in the field of personnel qualifications. Light industry, the sphere of production most demanded by the population, has three professional standards, which have a very narrow scope (goods for children), and the food industry also has 3 standards.

Proposals to amend legislation

The study revealed that the existing mechanism of legal regulation of relations in question does not fully meet the needs of modern production and the interests of workers. The author considers the right of the employee to additional professional training to be insufficiently guaranteed. It is proposed to consolidate the obligation of the employer to organize advanced training of employees with a frequency of once every three years. In case of failure to fulfill the obligation and the subsequent dismissal of employees, it is necessary to oblige the employer to reimburse the expenses incurred by the employment service for retraining citizens. It is advisable to determine conditions under which the employee can initiate additional professional training in the law (long-term work experience with the employer, absence of violations of labor discipline, etc.), which would facilitate the right of workers to additional professional training. The additional contract on vocational training is concluded if there is no obligation for the employer to organize advanced training ( Sagandykov, 2016). If the employer has such a duty by virtue of instructions of the law and other regulatory legal acts, the employee cannot be required to work out a certain period for this employer. This would be against the law. Accordingly, the employee has no obligation to reimburse training costs. The necessity of clarifying the concept of “competence” and aligning it with the term “qualification” is emphasized ( Akhmetshin, Vasyaycheva, Sakhabieva, Ivanenko, & Kulmetev, 2018). Thus, the norms controlling relations in training and further professional education do not quite meet practical needs, do not cope with the task of forming necessary competencies and need further improvement. We also need to clarify and harmonize the concepts used in various regulatory legal acts.

Organizational offers

The Federal law of 03.07.2016 №238-FZ “On an independent assessment of qualifications” provides for the formation of a voluntary qualification assessment system for compliance with professional standards by associations of employers. This qualification assessment system is based on confidence in the assessment quality on the part of the market. In accordance with the Law on Independent Qualification Assessment, it is planned to form councils for professional qualifications in relevant economic sectors, which, in turn, will delegate authority in professional assessment to centers for assessing qualifications. The characteristic feature of these centers is that they cannot be created on the basis of educational organizations. It is expected that a professional exam will be conducted by representatives of employers. The certificate issued to applicants who have passed such a professional exam will open up greater opportunities for the employee in the labor market ( Kuznetsova et al., 2019).

Qualification Assessment Centers will actually carry out certification of the employee for his qualification compliance with the work performed. Labor legislation obliges the employer to carry out the specified certification with the participation of trade unions, which helps to protect the rights of the employee. Meanwhile, the above-mentioned procedure for the independent assessment of qualifications does not provide for the participation of trade unions. The results of this assessment can be used by the employer to terminate the employment contract with the employee on the basis of inconsistency of job due to insufficient qualifications. Thus, the role of the trade union as a defender in assessing qualifications of employees is leveled, and the degree of protection of workers' labor rights is significantly reduced ( Shumik, Arnaut, & Smitskikh, 2019).