Balance of interests of the parties to labor relations in the introduction of digital technologies

Filyushchenko Lyudmila Ivanovna ORCID: 0000-0002-0206-4505 PhD in Law Associate Professor, Department of Legal Regulation of Economic Activity, Ural Federal University named after the First President of Russia B.N. Yeltsin 620002, Russia, Sverdlovskaya oblast', g. Ekaterinburg, ul. Mira, 19, of. I-406 filuschenko@mail.ru Other publications by this author

Literature review

Technological advances, digitalization and robotization have led to changes in the forms of employment, the emergence of atypical labor relations that do not fit into traditional ideas. In the literature, attention was drawn to the challenges that labor law cannot fail to respond to (job cuts, platform employment, remote work, etc.). N. L. Lyutov, in particular, notes that there are difficulties not only with the technical and legal adaptation of labor law norms to new forms of labor, but also and with the need to build an adequate system of guarantees for the implementation of labor rights of people involved in new forms of employment ^{[1, pp.102-103]}. Speaking about the consequences of digital transformation, researchers record a high degree of uncertainty, but there is no consensus on this issue ^{[2, pp.14-15]}. With regard to remote work, for example, it is critically noted in the literature that attention is focused on promoting the benefits of remote work, and not on protecting against possible negative consequences, not on achieving a balance between work and personal life, health ^{[3, p.199]}. Meanwhile, ensuring a balance of interests of employees, employers and the state is one of the goals of legal regulation of labor relations. Due to technological advances, labor legislation has undergone significant changes, perhaps the most extensive in twenty years of the Labor Code of the Russian Federation. The purpose of this article is to analyze the norms of labor legislation adopted in the conditions of digitalization of the economy and society, from the position of identifying the balance of rights and interests of the parties to labor relations.

The issues of balancing the rights and interests of the parties to labor relations are not neglected in the scientific literature. At the same time, gaps in laws and other regulatory legal acts, shortcomings and contradictions in practice are identified, which makes it possible to improve labor legislation.  Scientists agree that the task of legislation is to ensure a balance of interests of the parties to legal relations, they usually talk about the state of equilibrium, balance of rights and obligations of the parties ^{[4, p.10-13; 5, pp.104-116]}. By balance, L. V. Zaitseva notes, is understood such an approach of the legislator, which equally takes into account both the interests of employees and employers and allows to develop effective legal norms ^{[6, pp.181-185]}. M. S. Sagandykov, in particular, draws attention to the fact that ensuring a balance of interests should not be considered in the in the context of the legal equality of the parties of these subjects. The means to achieve the goal of balancing rights and interests may be different. Restrictions on the rights of employers may be based on the protection of public and private interests; in relation to employees, such a measure is possible only in the public interest ^{[7, pp. 87-88]}. Scientists note that the main idea of coordinating interests is not to achieve any specific results, but to constantly strive to improve labor legislation in such a way as to ensure that it fulfills both of the most important functions of the industry ^{[8, p. 6-7]}. The coordination of interests can be considered both as a process of improving legislation in order to achieve greater balance, and as a result, the result of law-making. The legislator strives for the designated goal, but not always successfully. Choosing options, weighing this or that solution is not an easy task.

Legal regulation of the digital space in labor relations.

Some experts, based on the analysis of the practice of courts and constitutional norms, come to the conclusion that the balance of interests is inclined in favor of employers ^{[9, pp. 146-147]}. Changes in labor legislation related to the use of digital technologies actualize the issue of ensuring a balance between the rights and interests of employees and employers. Thus, the transition to the accounting of information about employment in electronic form in accordance with the Federal Law of the Russian Federation No. 439-FZ dated December 16, 2019 "On Amendments to the Labor Code of the Russian Federation regarding the formation of information about employment in electronic form" is accompanied by the release of the employer from the obligation to maintain and store workbooks. Employees are given a choice of the option of maintaining a work record – in electronic format or in traditional form. At the same time, since September 1, 2021, a number of new rules have been introduced that soften the procedures for keeping workbooks in the traditional format, which leads to a reduction in employers' costs: the mandatory form of accounting for forms of workbooks and inserts has been abolished, the rules for familiarizing with signature entries in a personal card have been simplified, the rules for filling in workbooks have been simplified. The balance of interests is ensured by the fact that employees have the right to control the actions of employers to transfer information about their work to the information resources of the Pension Fund of Russia. An employee has the right to receive information about his/her work in paper form both from his/her employer and through the MFC, the portal of Public Services. The availability of information about the work activity for the employee is guaranteed, its protection from loss, misuse.

The administrative responsibility of the employer is provided for violation of the procedure and deadlines for the submission of information on labor activity. If false or incomplete information is found, the employee has the right to submit a written application for the elimination of deficiencies, and the employer is obliged to eliminate them (Part 6 of Article 66.1 of the Labor Code of the Russian Federation). However, the employer can only correct the incorrect information that he submitted. As for correcting the mistakes of previous employers, it seems that the issue will have to be resolved with the former employer (quite possibly in court). If, upon termination of the employment contract, it is impossible for an employee to provide information about work for any reason, the employer, having sent the relevant information by registered mail with a notification, is not responsible for the delay or failure to provide information about work from that moment (Article 84.1 of the Labor Code of the Russian Federation). Thus, the interests of the employer are protected. The order of interaction of employers with the FIU has been established for a long time and there are no problems for them. There are undoubted advantages in keeping records of labor information in the FIU information system for the employee. There is clearly a public interest – information about employment in the FIU is combined with other databases.

 From the point of view of ensuring a balance of interests of the parties, you can pay attention to the updated Chapter 49.1 of the Labor Code of the Russian Federation on the specifics of regulating remote work. In the final version of the chapter on remote work, numerous comments were taken into account and, noting the shortcomings, it is generally evaluated positively ^{[10, p. 41]}. However, there are certain doubts about ensuring a balance between the rights and interests of employees and employers. The most important aspects of remote work involve settlement through collective contractual and local regulation. The weakness of trade unions or their absence makes it impossible to fully use the mechanism of collective-contractual and local regulation. The absence of norms on collective labor rights in the Labor Code of the Russian Federation in relation to employees accepted for permanent remote work does not contribute to this. As a result, despite the fact that one year has passed since the entry into force of the relevant norms of the Labor Code of the Russian Federation, organizations still lack rules that would provide employees with equipment, software, information security tools, etc., or at least provide compensation for the use of their equipment and other expenses of employees. The balance of rights and interests is clearly shifted in favor of employers. The ways in which they propose to solve such important issues do not seem to justify themselves, and it is impossible to talk about the balance of the rights of the parties to the labor relationship in these conditions. The mechanism of social partnership is usually considered as a way to ensure a balance of interests, but it turns out to be ineffective. In our opinion, the norms should be clearer. The burden of today's challenges must be borne by employers, employees, and the state. If the introduction of remote work is carried out on the initiative of the employer, then he must create conditions for such work and provide equipment, protective equipment and others. If an employee initiates such work, the issue of security or compensation can be resolved by agreement of the parties.

The employer has transformed not only the obligation to create a workplace, provide equipment with tools, but also labor protection. So, it is problematic to organize an investigation of an accident or occupational disease, it is difficult to preserve and fix the situation, to prove that the injury occurred during the performance of work duties. The employee, on the contrary, has an obligation to organize the workplace, develop new technologies, work methods, which leads to a change in the balance of rights of participants in the labor relationship.

Delaying the process of developing a local regulatory act and performing other duties by the employer may also occur with the introduction of electronic document management. Articles 22.1-22.3 of the Labor Code of the Russian Federation, introduced by Federal Law No. 377-FZ of November 22, 2021 "On Amendments to the Labor Code of the Russian Federation", contain guarantees of employees' rights: preparation by the employer of a local regulatory act taking into account the opinion of the elected body of the primary trade union organization on interaction; consent of employees to the introduction of electronic document management; obtaining qualified electronic signature at the expense of the employer; storage of electronic documents within the established time limits; provision of paper documents at the request of the employee. The norms have come into force, but apparently the process will not be fast. At first glance, it seems that the rights and interests of employees are taken into account. But under extraordinary circumstances, it is allowed to temporarily exchange electronic documents related to work, even if the employee did not express consent to the use of electronic document management (Article 22.3 of the Labor Code of the Russian Federation). This is where disputable situations are possible, untimely familiarization with any documents, the requirements of the employer, bringing to responsibility for violations of labor discipline, etc. The situation of employers is not easy. They have certain encumbrances due to the introduction of new rules. In particular, additional costs for the purchase and maintenance of an information system, for qualified electronic signatures, training of employees, including personnel services, an increase in the amount of work for employees, since registration remains in the traditional paper form. Even a superficial analysis of these norms indicates an even greater formalization of the interaction between the employee and the employer, which is hardly good. Thus, the multiplicity of electronic signature options for various documents and life situations raises doubts, which complicates procedures and creates grounds for violations. It is possible to assume an increase in conflict in the field of labor relations. In our opinion, it would be more expedient to make a uniform approach to the use of an electronic signature, which would simplify its application.

The public interest in expanding the use of new technologies is understandable. Accelerated introduction of digital technologies in the economy and social sphere is defined as one of the goals of national development in the Decree of the President of the Russian Federation dated July 21, 2020 "On National development Goals of the Russian Federation for the period up to 2030". Both in the public interest and in the private interest (of the employee), additional responsibilities are assigned to employers. But it is hardly possible to conclude that the rights of employees are sufficiently protected when introducing electronic document management. For example, the law is silent about the restriction of the employer's invasion of personal space – about the "right to disconnect". Together with the significant spread of remote work, the digital space is even more increasing. The widespread use of information technologies leads to the intensification of labor, an increase in working hours, stress, and a violation of the relationship between work and personal life. The mental health of workers in the digital world has received attention in the European Union, and certain measures are being taken to neutralize the negative impact of digitalization ^[11]. However, our assessment of psychosocial risks is not provided for either in the Labor Code of the Russian Federation or in the Federal Law of the Russian Federation No. 426-FZ of December 28, 2013 "On special assessment of working conditions". Psychosocial risks are not attributed to harmful and (or) dangerous factors of production and labor process. Given the scale of digitalization and the use of remote labor, it is impossible not to agree with the opinion of scientists about the inclusion of psychosocial hazards (risks) among the factors of a special assessment of working conditions ^{[12, pp. 40-45]}.  In this regard, it is worth paying attention to the new norm of Article 214.2 of the Labor Code of the Russian Federation on the right of the employer to use devices, devices, instrument complexes and other equipment for the organization of remote video, audio and other fixation of the production process in order to control the safety of production. The norm appeared as a result of updating Section X of the Labor Code of the Russian Federation "Labor Protection" in the wording of the Federal Law of the Russian Federation dated July 2, 2021 No. 311-FZ "On Amendments to the Labor Code of the Russian Federation". The rule cannot but be alarming, here lies the danger of interference in the personal (private) life of an employee, aggravation of the situation with mental health, psychosocial and ergonomic risks. Such control seems excessive. It is necessary to think seriously about limiting the possibilities of continuous monitoring of employees, especially since a wide range of people have access to monitoring. The limits could be, for example, rules on the establishment of a clear list of categories of workers for whom such control is carried out; that recording is carried out only during working hours; the camera can be directed exclusively to the workplace, etc. Monitoring the safety of work is a good excuse, but you should not forget about the workers. Mutual rights and obligations of legal entities should be balanced.

The norms of Section X "Labor Protection" in the Labor Code of the Russian Federation, which come into force on March 1, 2022, are of interest from the point of view of ensuring a balance of interests between labor relations and the state. The new standards are based on the concept of prevention of occupational risks. It is always easier to prevent than to eliminate the consequences. As it is rightly noted in the literature, no compensation, payments to victims are able to compensate for the loss of health and even the life of an employee ^{[13, pp. 118-119]}. The idea of self-examination, self-control, prevention of injuries and occupational diseases in the workplace is good, but its implementation may face difficulties. The employer has a lot of responsibilities for the analysis and assessment of occupational risks, accounting for microtraumas, identifying the circumstances and causes of their occurrence (Articles 22, 214, 218, 226 of the Labor Code of the Russian Federation). Employees, for their part, should actively participate in this process: undergo training, comply with labor protection rules, correctly use individual and collective protective equipment.  They may be suspended from work if they neglect personal protective equipment when performing work with harmful and (or) dangerous working conditions. In order to ensure greater protection of employees, as an exception to the general rules of electronic document management, the paper version of the act on an industrial accident and documents on the passage of occupational safety briefings personally signed by the employee has been preserved, which seems justified. However, there are doubts whether the employer is able to cope with the increased volume of work. Labor protection services, judging by Article 223 of the Labor Code of the Russian Federation in the new edition, remain the same. Employers are hardly ready to increase the number of employees of these services, to attract a specialist in occupational risks. The involvement of an organization with relevant competencies to assess professional risks also requires additional costs. The allocation of funds for labor protection remained at the same level (Article 225 of the Labor Code of the Russian Federation). Employers are insufficiently motivated to invest in the creation of healthy and safe working conditions, and the rules on the establishment of allowances (discounts) to the rates of contributions for accidents at work push employers to conceal the facts of injuries. The stimulating component for employers' interest in improving working conditions needs to be strengthened, but so far there has been no noticeable progress on this issue on the part of the state (contribution rates for 2022-2024 remain the same). The norms of legislation on a special assessment of working conditions, the results of which are linked to measures to prevent occupational risks (and even the provision of personal protective equipment to employees) (Part 4 of Article 216 of the Labor Code of the Russian Federation), do not inspire optimism. In practice, there are cases when employers, without taking any measures to improve working conditions, declare working conditions normal, acceptable. In addition, by declaring employers' self-examination of working conditions, the legislator weakened control over them. Thus, Article 360 of the Labor Code of the Russian Federation has been canceled, and the Regulation on Federal state Control (Supervision) over Compliance with Labor Legislation and Other Regulations containing labor law norms, approved by the decree of the Government of the Russian Federation on July 21, 2021, provides for fairly rare checks of compliance with labor legislation. At medium and moderate risk, for example, inspections are carried out once every five and six years, respectively. In these conditions, it is hardly possible to talk about the balance of the rights and interests of the parties to labor relations. It seems that the new rules are not able to fully protect the interests of employees. The right of employees to safe and healthy working conditions is infringed, the balance of interests of the parties to labor relations is violated. It is necessary to consider measures, including of a tax nature, to encourage employers to be interested in improving the working conditions and labor protection of employees.

The analysis of the norms shows that the balance is inclined in favor of employers. However, it must be said that there are also opposite examples, not quite successful additions, for example, made to Articles 96, 99, 259 of the Labor Code of the Russian Federation by Federal Law No. 372-FZ of November 19, 2021 "On Amendments to the Labor Code of the Russian Federation". At first glance, the expansion of the circle of persons enjoying benefits – the right to refuse to work at night if children are under 14 years old, or from overtime work, work on weekends and non–working holidays - is evaluated positively. However, it is possible to imagine in what position the employer will find himself if the employee (and not one) declares that he wants to exercise his right to refuse to work, for example, at night. The employer will have problems due to the need to change work schedules at the request of employees.Organizational issues are not clear: is it necessary to notify the employer before each shift, or is the issue initially resolved in the employment contract (supplementary agreement)? The granting of benefits to families of workers working in shifts also raises questions: is it only about the period of the shift, or can the rule be interpreted more broadly?It is hardly possible to assume that the balance of interests is observed here – the interests of employers are overlooked, there is a ground for conflicts due to infringement of labor rights (real or imaginary).

Conclusions

 The development of labor law is a continuous search for a balance between the rights of the parties to the labor relationship and the state. The shortcomings noted in the article and the proposals formulated can be discussed in order to further improve the legal regulation of labor relations and achieve the goal defined in Article 1 of the Labor Code of the Russian Federation. It is necessary to unite the efforts of representatives of legal, economic and other sciences. The digitalization of the economy and public life should be accompanied by the creation of a legal mechanism that would meet the needs of employers and the state and allow preserving guarantees of workers' labor rights.