Invalidity of the employment contract and recognition of the employment contract as not valid as a promising way to protect labour rights

Abstract

The study is devoted to the substantiation and formulation of proposals for the implementation in Russian labour law of a promising way of protecting individual labour rights — invalidity of the employment contract and the recognition of an employment contract as inactive in court, as well as their ratio. Based on the analysis of the labour legislation of the Russian Federation and other states of the EAEU, an analysis is made of the current state of the normative legal regulation of the issues of the invalidity of an employment contract. It is proposed to fix in the Russian labour legislation the concept, specific grounds for the nullity of an employment contract and its consequences. When considering the provisions of civil legislation on the consequences of the invalidity of disputed transactions, as well as special literature, the author expressed the opinion that the method of protection provided for in paragraph 3 of Article 167 of the Civil Code of the Russian Federation should be considered precisely as a mechanism for the transformation (termination for the future) of the legal relationship that arose from the voidable transaction. It is concluded that the partial extrapolation of this model to the labour law reality will allow to form an original way of protection for the employee and the employer, eliminating the grounds for discussion about the subsidiary application of civil law norms on the conclusion and execution of an employment contract. The main results of the study are the formation of a number of proposals aimed at improving the effectiveness of primarily Russian labour legislation. In particular, a distinction is proposed between the grounds and consequences of the nullity of an employment contract and the recognition of an employment contract as inactive. It is stated that the rights and responsibilities of the parties to the employment relationship, formed before the recognition of the employment contract as inactive, should be considered properly executed. It is also proposed to some of innovations in the Labour Code of the Russian Federation, including a fine (penalty) in favor of a minor employee in cases of violation by the employer of the prohibitions on concluding an employment contract as a preventive measure and one of the consequences of recognizing it as inactive.