The mechanism of implementation of the subjective right of the employer to conclude an employment contract and the formation of its content
Authors:   South Ural State University, Ofman Elena M. 
Published: December 2024

The subjective right of an employer to conclude an employment contract is fixed in Article 22 of the Labor Code of the Russian Federation, however, the mechanism of its implementation is not legally defined. The normative and doctrinal interpretation of the employment contract suggests that the employment contract is understood as an agreement between the parties; the parties to the contract (and the employer first of all) are free to form its content; the employment contract is stable; the basis for signing the employment contract is a decision made by the employee and the employer; the court cannot participate in the formation of the content of the employment contract. However, the analysis of the acts of law enforcement (judicial) practice makes us doubt the unambiguity of these theses and even allows us to put forward another extremely important thesis: the employer does not have the ability to independently, unilaterally form the content of the employment contract, moreover, he is in a situation of lack of freedom when making the necessary personnel decisions under the terms of the employment contract concluded with the employee. The complexity, and in some cases - the inability of the employer to exercise his "economic power" is especially acute in cases of the employee's actual admission to work, when the employer does not formalize or improperly formalize the labor relations that have arisen, when the parties verbally come to an agreement on issues of interest to them. In fact, judicial acts of the Supreme Court of the Russian Federation oblige the employer to make changes to its individual conditions, which the employee unilaterally insists on. Thus, the employer is actually forced to adjust the content of the employment contract without his consent, which violates the mechanism of exercising the right of the parties to the contract to form its content. The article solves the problem of the mechanism of the employer's exercise of the right to conclude an employment contract with the actual admission of an employee to work by the employer or his authorized representative before the conclusion of an employment contract; the problem of restoring (healing) the content of an employment contract if at least one of the mandatory conditions is not included in its text. The conclusion is made about the need for legislative development and implementation at the level of a codified act of the mechanism for exercising the subjective right to conclude an employment contract and an attempt to establish this mechanism is made. The article develops proposals aimed at improving the mechanism for employers to exercise their subjective right to conclude an employment contract. It seems necessary to establish in the Labor Code of the Russian Federation the obligation of an employee to inform the employer in a timely and appropriate manner about the occurrence or existence of legally significant circumstances that can affect the qualification of the management decision made by the employer as illegal.