REMOTE WORK IN RUSSIA: ISSUES OF LAW ENFORCEMENT

Информация для цитирования: Васильева Ю. В., Шуралева С. В. Дистанционная работа в России: проблемы правоприменения // Вестник Пермского университета. Юридические науки. 2016. Вып. 32. C. 216–225. DOI: 10.17072/1995-41902016-32-216-225. Vasilyeva Yu. V., Shuraleva S. V. Distantsionnaya rabota v Rossii: problemy pravoprimeneniya [Remote Work in Russia: Issues of Law Enforcement]. Vestnik Permskogo Universiteta. Juridicheskie Nauki – Perm University Herald. Juridical Sciences. 2016. Issue 32. Pp. 216–225. (In Russ.). DOI: 10.17072/1995-4190-2016-32-216–225.


Introduction
«The Sandwich Generation» -this is how quite a large group of working-age adults called, who need to find a balance between career, caring for aging parents and raising their own children.
Foreign corporations and public authorities successfully use strategies of "flexible" employment, which help such workers to combine work and family responsibilities, including: indefinite leave, surrounding, focused only on the results of work, "flexible" schedule, the division of work between two workers, remote work [7]. This type of atypical employment has become popular in the United States, Europe and other countries, a significant amount of scientific research is dedicated to it [6,8,9,10].
In Russia relations in the field of remote work now just in progress and as it often happens with something new, meet a restrained resistance of law enforcers, who don't rush to change the current practice. In terms of legislative freedom enforcers are looking for the usual "foothold", which are: the judicial practice, the positions of the competent federal executive bodies (hereinafter -the federal authorities), in particular, the Ministry of Labor and Social Protection of the Russian Federation (hereinafter -the Ministry of Labor) and the Federal Service for Labor and Employment (hereinafter -Labor Service). Available clarifications of the federal authorities about remote work devoted to the conclusion of the employment contract on the remote work and its conditions. Some labor law questions about remote work in the context of the calculation and payment of taxes dealt with in the documents of the Ministry of Finance of the Russian Federation (hereinafter -the Ministry of Finance) and the Federal Tax Service of Russia (hereinafter -the Federal Tax Service).
The practice of courts of general jurisdiction on the merits yet not numerous, mainly related to disputes about termination of the employment contract. Arbitration courts also spoke on the possibility of the working remotely in dealing with individual disputes on deduction of expenses for the payment of insurance compensation on compulsory social insurance for temporary disability and cases related of maternity 1 . Taking into account the impossibility to consider all available materials in a single article, we chose the most interesting, in our view, legal positions. But firstly we should turn to the question of their legal nature.
On the legal nature of the official positions of the courts and the individual federal executive bodies Any "dialogue" with the law, any implementation of law, and especially such form as the application of the law, assumes clarification of legal requirements and permissions. As a rule, in this situation special clarifications of legal acts help, which are given formally and informally. Both clarification of the requirements of the rules as an internal intellectual process, and an explanation of them as an expression outside personal conclusions often combine one concept -interpretation of law [4, p. 392]. On the subject of clarification of a legal act normally distinguished on formal and informal interpretation. At the same time under the official interpretation we mean the interpretation, which is given by the competent authorities and officials and is legally binding for all concerned, it causes certain consequences. Informal interpretation comes from entities whose activities are not official, state, and therefore, it has no legal force and does not imply legal consequences. An important feature of this interpretation is that it does not involve power, coercion, punishment. Any sanctions are excluded here [5, pp. 356-357].
In the literature, there are several classifications of official interpretation. Here is just one of the variants of such a classification: official interpretation is divided into normative (general) and causal (individual), authentic (author) and legal (authorized, delegated); judicial [5, p. 356].

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The explanations of federal authorities (in the forms of official letters, information, answers to questions, etc.) according to the classification above can be attributed to the official authentic interpretation, if such explanations are their own normative legal acts or to legal interpretation, if such a right is delegated to them. Thus, it is possible to agree with the proposition that all public authorities, which is responsible for bringing the legal regulations in the life may be the subjects of official inauthentic interpretation. The terms of these bodies is quite wide. Legal validity interpretation acts of various authorities varies. They are mandatory to use, if they are not in contrary to the requirements of other legal regulations, if the interpretation of the subordinate body corresponds to the explanations on the same matter, given by these higher authorities. In other words, the legal force of expository statutes is determined by their place in the mechanism of legal regulation and corresponds to the force of other provisions emanating from any authority [4, p. 401].
What is the legal validity of such clarifications of the federal authorities? Part of the answer to this question is contained in the clarification of these bodies themselves. For example, in a letter from the Russian Federal Tax Service on 31.01.2014 № CA-4-14/1645 5 states that the legal positions in the sphere of state registration of legal entities and individual entrepreneurs (including on remote workers-managers), as set out in this letter, subject to the application of the territorial tax authorities in the exercise of the functions of state registration, as well as the bringing to the privies. Thus, these explanations are mandatory as a minimum for the territorial bodies of the Federal Tax Service of Russia.
In the Ministry of Finance letters 6 we can find a reservation that such a letter "does not contain any legal norms, it does not specify the regulatory requirements and it is not a normative legal act. Written explanation of the Ministry of Finance on the questions of application of the legislation of the Russian Federation on taxes and levies aimed taxpayer and (or) tax agents are informative and explanatory nature and do not prevent taxpayers, tax authorities and tax agents use norms of the Russian legislation on taxes and duties within the meaning of other than the interpretations set out in this letter". In other words, it highlights the informative nature of such explanations. В Апелляционном определении Пензенского областного суда от 17 июля 2012 г по д . елу № 33-1679 2 дана следующая оценка письмам Роструда: «Письма Федеральной службы по труду и занятости не порождают правовых последствий для неопределенного круга лиц и суд не связан при принятии решений мнением каких-либо лиц и организаций Вместе с тем ». нельзя утверждать что такая позиция характе , рна для судебной практики.

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In the Labor Service letters (for example, a letter on 20.11.2015 № 2628-6-1 "On working conditions in the workplace") 1 , sometimes also indicated that the letter is not a normative legal act.
The Appeals definition of Penza Regional Court on 17.07.2012 in case № 33-1679 2 provides the following assessment of the Labor Service letters, "the letters of the Federal Labor and Employment Service does not give rise to legal consequences for an indefinite number of persons and the court is not bound when making decisions by the opinion of any person and organizations". However, we can't say that this attitude is common in judicial practice.
Thus, we can draw the following conclusions. Firstly, an explanation as well as work on informing and consulting, are carried out by federal authorities in the framework of their competence, which gives explanations the nature of the official interpretation. It is obvious that the legal positions of the federal executive bodies in order to create uniform practices are used by the downstream or subordinate public authorities in their activities. At the same time, the obligation of these explanations for an indefinite number of persons does not arise from the legislation and other normative legal acts.
Secondly, the role of such clarifications of the federal authorities seems to us, first of all, is to help individuals and organizations to understand the content of the rule of law and form their own legal position. However, this does not exclude the fact that citizens, organizations and other public bodies may have their understanding of legal acts, which in cases of disputes will be announced in court.
Regarding the value of the legal positions of the Ministry of Labor we must also note the following. According to para. 1 of the Regulation on the Ministry of Labor this authority is a federal body of executive authority responsible for the development and implementation of state policy and normative legal regulation, including the field of demography, labor, quality of life and income, pay, conditions and labor protection, social partnership and labor relations. documents that require the Russian Federation Government decision on matters relating to the installed purview of Ministry of Labor and to the competence of the subordinated to it Labor Service (point 5.1 of the Ministry of Labor Regulation). It is worth noting that the Russian Federation Government was the subject of the legislative initiative on the bill № 88331-6 "On Amendments to Certain Acts of the Russian Federation (about the peculiarities of legal regulation of the work of employees performing work outside the employer's location)" 3 .
Thus, the legal positions of the Ministry of Labor are of particular interest because the body has a direct impact on the formation of the labor legislation and subordinate legislation in the sphere of Labor, including in the field of remote work.
Next, consider some of the legal positions of the federal executive bodies and judicial authorities on various aspects of the employment contract on the remote work.

Conclusion of an employment contract
on the remote work The Ministry of Labor received a complaint concerning the calculation of insurance contributions to state extra-budgetary funds for payment to be made in favor of the citizen of Ukraine who has concluded an employment contract on the remote work. Under the agreement, it was assumed that labor duties the worker will perform in the territory of Ukraine. In the Labor Ministry letter on 07.08.2015 № 17-3 / B-410 4 with references to Art. 13, 312.3 of the Labor Code of the Russian Federation (hereinafter -the Labor Code) 5 concluded: ensuring by the employer safe working conditions for remote workers working outside the Russian Federation, is not possible. Therefore, the Labor Code does not provide the possibility to conclude an employment contract on the remote work with a foreign citizen performing job duties outside Russia. Cooperation with such foreign citizens should be carried out within the framework of a civil contract. Its payouts will not be a subject of insurance contributions.

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It seems that a similar position Ministry of Labor will follow in respect of stateless persons. From an economic perspective for the employer such a decision can be beneficial and convenient. But from a legal point of view, questions remain.
The main argument, which uses the Labor Ministry -the impossibility for the employer to provide a safe working conditions worker and safety and health of remote workers in another country. It does not take into account that the obligation of the employer to ensure safe working conditions to remote workers, in principle, limited. According to Art. 312.3 of the Labor Code the employer is obliged to carry out an investigation and registration of accidents and occupational diseases; comply with the instructions of officials of the Federal Labor Inspectorate and its territorial bodies; implement compulsory social insurance against industrial accidents and occupational diseases. According to some scientists, many of the duties of the employer in the field of occupational safety and health objectively can not be made by him, such as monitoring the state of working conditions in the workplace, prevention of emergency situations. Therefore, the employee himself must take care of the security of their employment [3].
Following the logic of the Labor Ministry, the Russian employers should not conclude an employment contract on the remote work with the Russian citizens living abroad, because for the Russian employer is just also difficult to provide them with a safe working conditions in the territory of another state. However, in this case the Ministry of Labor explained that for Russian citizens, regardless of their location no limits are provided. That's why it is possible to employ remotely Russian citizens living abroad [2] 1 . 1 In the context of this perspective noteworthy letters of the Ministry of Finance on the issue of taxation of personal income tax incomes of natural persons -foreign citizens who have concluded with Russian organizations employment contracts on the remote work and perform the above work outside the Russian Federation in their country. Explanations were given in respect of the citizens of Moldova, Belarus, Ukraine, a resident of Germany. Pointing, in particular, that the income of individuals who are not tax residents of the Russian Federation, as a consideration for the performance of labor duties outside the Russian Federation shall not be subject to tax on income of natural persons, the Ministry of Finance, apparently, does not question the validity of contracts on the remote work with foreign citizens. Letters of the Ministry of Finance on 16. 10  However, to the general rule may be set exceptions. For example, the Presidential Decree on 11.28.2015 № 583 "On measures to ensure the protection of the Russian Federation's national security and citizens of the Russian Federation from criminal and other illegal actions and on the application of special economic measures against the Republic of Turkey" in the number of such measures is indicated ban for employers , customers of works (services) who are not included in the list defined by the Government of the Russian Federation, to attract since the 1 January 2016 to work workers from among the Turkish Republic citizens who are not in labor and (or ) civil relations with these employers, customers of works (services) as on the 31 December, 2015 3 . We believe that this prohibition fully extends to the labor relations in the field of remote work.
It is important to take into account the international treaties of the Russian Federation. For example, the labor activity of workers of the Member States of the Eurasian Economic Union is governed by Art. 97 of the Treaty on the Eurasian Economic Union (signed in Astana, 05.29.2014) 4 . Point 1 of this Article provides for the right of employers and (or) customers of works (services) of a Member State to involve in the implementation of labor activity workers of Member States without regard to Ю. В. Васильева С , . В. Шуралева членов без учета ограничений по защите национального рынка труда При этом трудящимся . государств-членов не требуется получение разрешения на осуществление трудовой деятельности в государстве трудоустройства.
Если работодатель хочет застраховать с « » ебя от переезда работника в территории прож , ивание на которых предполагает получение льгот и компенсаций отличающихся от стандартных , , в трудовом договоре о дистанционной работ е необходимо указать что работа осуществляется , дистанционным работником на территории Российской Федерации других государств за и ( ) , сключением определенных местностей Наруш However, analysis of the rules about the specific features of the conclusion of employment contract, temporary transfer, suspension from work, termination of employment contracts with foreign citizens and stateless persons shows that under Russian law the legal regulation of labor of this category of workers is aimed at those who work on the territory of the Russian Federation. Apparently, on this basis, Ministry of Labor believes that the involvement of foreigners in work is carried out only after crossing a border by them and obtaining permits to work, so it is impossible to conclude an employment contract on the remote work with foreigners living in another state.
It seems, however, that this is a restrictive interpretation of the law, because the chapter 50.1 of the Labor Code does not contain a prohibition on attracting foreigners to work under the conditions of the contract on the remote work, and the chapter 49.1. of the Labor Code does not contain provisions restricting the attraction to the remote work of foreigners and persons without citizenship. We believe that the prohibition of remote work for foreigners living outside the country, restricts the freedom of the remote labor relations, does not corresponds to the objectives of chapter 49 of the Labor Code and significantly reduces the advantages of remote work.
The conditions of the employment contract on remote work In a letter of Labor Service on 10.7.2013 № SG/8960-6-1 "About the determination of the workplace" 1 indicated that the contract on the remote work should contain information on the place of work, in which the remote worker directly performs duties assigned to him by the employment contract. The letter contains a link to the general rule: part 1 Art. 57 of the Labor Code, which fixes the condition of the work place as mandatory. However, one of the main characteristics of the employment contract on the remote work is the fulfillment of employee his labor function out of the place of the employer location.
In fact, the place of labor activity of the remote worker can be anywhere, including work at home. Ministry of Finance in a letter on 01.08.2013 № 03-03-06/0978, pointed out that from the definition of a remote work given in Article 312.1 of the Labor Code follows that the employee's permanent place of work is his location 2 . At the same time the Labor Code does not contain the legal definition of the place of work. This term is used in the code in different meanings: as a synonym for the position occupied by the employee, as an indication of an employer and as the place of performance of his labor function.
In our opinion, the condition of the place of work for the employment contract on the remote work loses its constitutive importance in connection with the impossibility (and the absence of unnecessarily) for the employer to monitor the actual location of the remote work, and also with the interaction of a remote worker and his employer through information and communication network -Internet. [1, p. 91]. However, in some cases it can (and should) be indicated in the employment contract with a remote worker.
For example, if a remote worker works on the territory of the Russian Federation with the established regional coefficients to wages. Obviously, the employer must pay such worker wages and social security benefits taking into account these factors, even if the employer is situated in the "normal" area. In this case, it seems justified the fixation of the place of work in the employment contract on the remote work. Moreover, if the employment contract is not designated "north" place of work, the Social Insurance Fund, when checking the correctness of accrual by the insurant benefits for temporary disability, will not adopt to offset the amount of payments, increased by the regional coefficient. We add that the f ixing of the "northern" place of work, the remote worker has a right to extra leave with certain duration, travel expenses to the place of rest and back in the normal order.
If an employer wants to "insure" themselves against moving of the worker to the territory, where he could live and receive benefits and compensation that are different from the standard, the employment contract on the remote work must specify that the work is carried out by remote worker in the territory of the Russian Federation (other countries), with the except in certain areas. ние данного условия можно будет предусмо треть в качестве основания для прекращения трудового договора о дистанционной работе.
Secondly, the condition of the place of work gains value if the remote worker's performing of labor function is connected with the necessity of sending on mission (including sending to the location of the employer organization). In this regard, the Ministry of Finance has a noteworthy legal position according to which, in case of sending on mission the employee performing the work remotely, on a mission outside the place of his permanent work specified in the employment contract, to the amounts of travel reimbursement apply rules of point 3. Art. 217 of the Tax Code (Ministry of Finance letter on 01.08.2013 № 03-03-06/30978) 1 .
Thirdly, the condition of the place of work is important in deciding whether to maintain the employee's right to receive child care allowance for children aged under 1,5 years old. According to Art. 11.1 of the Federal Law № 255-FZ "On Compulsory Social Insurance for Temporary Disability and Cases Related to Maternity" 2 right to this allowance is maintained when a person who is on leave for childcare, working part-time or at home and continues to care of the child.
Federal Arbitration Court of the Ural District in this regard pointed out that the current labor law requires freedom of the parties to establish homebased forms of organization of the labor process; the possibility of its organization is determined by the employer, taking into account economic feasibility and the real possibility of the work at home. At the same time, labor legislation contains no restrictions on the number of persons who can work at home. The Court rejected the argument of the territorial body of Social Insurance Fund of Russia that working at home has to be connected only with material production 3 . Despite the fact that this decision was taken by the court even before the intro-  3 According to the materials of the case, the employee was allowed to perform the duties of Chief of Staff on conditions of work at home with the establishment of the operating mode, preserving the right to receive a child care allowance for children aged under 1,5 years old. Decree of the Federal Arbitration Court of the Ural District on 13.03.2012, № F09-1216 / 12. [Electronic resource]. Access from the Reference and Legal System "ConsultantPlus". duction of the Labor Code chapter on remote work, it retains its value.
At the same time, the right to receive child care allowance can not be extended "by default" to all remote workers, combining work and care of a child aged under 1,5 years old. According to the provisions of Chapter 49.1 of the Labor Code remote worker has the right to independently determine the mode of his working time, and the employer is usually restricted in the ability to control the place of work and the worker's movements during the working day.
So, in order to preserve the right to child care allowance for children aged under 1,5 years old, the place of fulfillment of worker his labor function (at home) should be specified in the employment contract and working hours and periods of rest time for workers should be stipulated. To reduce working hours when working at home is not required.

Termination of the employment contract on the remote work
One of the most "flexible" rules on remote work in the Labor Code should be recognized the norm of Art. 312.5, according to which the termination of the employment contract on the remote work by the employer must be made on the grounds stipulated by the employment contract. On the one hand, it gives freedom to the employer in the formulation of such grounds and the possibility at any time without any problems, "leave" a remote worker. On the other hand, it seems that such grounds must have at least nondiscriminatory character and follow from the special nature of remote work.
Judicial practice shows that debates about dismissal on such "contractual" reasons already take place. Thus, the Appellate decision of Moscow City Court on 01.20.2015 in case № 33-1146 / 2015 4 , states that the remote worker (the plaintiff) was employed by the company "Biocodex" (the defendant) from 21.11.2012 and worked as regional manager in a separate unit in Kazan on the basis of an employment contract signed 21.11.2012 and the order № 058 on 21.11.2012. An additional agreement between the parties on 01.10.2013 to the employment contract adopted a new version of an employment contract without changing the labor function due to organizational changes in the working arguments, restricts the freedom of parties of the employment contract and reduces the benefits of remote work.
3. Explanations of the Labor Agency that the agreement on remote work should indicate the place of work, is valid for cases where remote workers provide additional guarantees on wages or social insurance. This condition is not mandatory for the parties in the other cases.
4. Legal practice on the termination of the employment contract on the remote work has only started to form, but an important position has already been designated: the establishment of additional contract termination reason by the employer must be agreed by the parties, which is confirmed by the signature of the worker. Without the signature the contract can not be accepted as proof of the employer's right to its cancellation on additional grounds specified in the contract.