3. DifTerentiation of legal regulation as an instrument of establishment of the special labour law status of a medical employee

The issue of existence of special labour law status of a medical employee has already been brought up by scholars, in particular in the works by N. A. Sokolova^[370], E.V.

As it has already been pointed out in the previous paragraph, this research explores the construction of the special labour law status of a medical employee, and its elements are the labour rights, duties and liabilities based on the law and inherent only to medical employees. Based on that we may conclude that the existence of the special labour law status of a medical employee requires a complex of special (as opposed to general) norms of law creating an effect of differentiation in legal regulation of this category of professionals.

This circumstance, which is a legal prerequisite for formation of this special status, needs a separate study both in the context of the concept of mechanism of legal regulation and within the framework of general theoretic construction of the differentiation.

Professor S.S. Alekseev saw the mechanism of legal regulation as a system of legal means to ensure meaningful legal effect on public relationships^[373]. He distinguished the following legal means for that: norms, legal relationships, legal facts and the acts of exercise of rights and obligations. However, doctors of legal science A.M. Lushnikov and M.V. Lushnikova have a different view on the substance of the given legal category. They argue that mechanism of legal regulation is a set of legal forms and methods designed to transform the law into systemized public relations^[374].

It appears that the latter definition of the mechanism of legal regulation is more precise as compared with the one that was once suggested by Professor S.S. Alekseev. The thing is that S.S. Alekseev has provided an overly broad content in the definition of the mechanism of legal regulation, since it included, in a sense, not only legal norms intended to govern public relationships in a direct manner, but also other legal means, notwithstandig that they regulate public relationships not directly, but indirectly, and, moreover, their functioning is primarily derivative from the effect of the legal norms.

In this sense it is reasonable to conclude that the most important elements of formation, existence and functioning of the mechanism of legal regulation are the legal norms directly emerging in the course of legislation, properly established and applicable.

This approach as to the definition of the mechanism of legal regulation makes it possible to agree with the opinion on this category provided by A.M. Lushnikov and M.V. Lushnikova, who insist that the mechanism of legal regulation must be considered as a legal phenomenon reflecting the very process in which the legal norms make effect on the governed public relationships.^[376]

Thus cased on the arguments stated above, it is this concept of the mechanism of legal regulation that may be used for the purposes of analyzing legal regulation of labour related relationships; and in this sense S.P. Mavrin and E.B. Khokhlov were right when they stated that the modern mechanism of legal regulation of labour related relationships is carried out on the following three levels: private (individual-contractual), based on social partnership (collective- contractual) and public (state-legal).^[377]

The first (basic) state-legal level of the mechanism of regulation of labour relationships, i.e.

principles of the whole system of Russian law and of each its branches, the principle of differentiation may be considered as equally important for the purposes of labour law, and not only because it is one of the backbone and in this sense the most important principles of formation and functioning of this branch of the law in general. Moreover, the practical effect of this principle allows, by way of “accurate adjustment”, so to say, to take into account all the differences, exceptions and restrictions in the legal regulation of the labour relationships of certain specific categories of employees.^[379]

It is obvious that normative introduction of the relevant differences, exceptions, preferences and restrictions in the law would formally limit the scope of the constitutional principles of equality and non-discrimination (Article 19 of the RF Constitution). This circumstance requires constitutional and branch-related legal foundation for the introduction and for the limits of differentiation of legal regulation of labour and labour-relevant relations in order to avoid conflicts between labour law and constitutional rules.

Such constitutional foundations and limits of differentiation of legal regulation of labour and labour-relevant relations were once determined by the RF Constitutional Court, that established a legal position in accordance to which any differentiation leading to differences in the rights of individuals in any sphere of legal regulation should be consistent with the requirements of the Constitution, in particular, with Article 17 (part 3), 19 (parts 1 and 2) and 55 (part 3).^[380] These rules of the Constitution provide that these differences are acceptable when they are objectively justified, based on legitimate reason and aimed at consitutionally significant goals, and these goals are attained by proportial means.

In addition, the Constitutional Court also pointed out that the constitutional principles of fairness, equality and proportionality implies the prohibition for the legislator to establish differences in the legal status of persons belonging to one category that do not have an objective and reasonable justification (the prohibition to provide different treatment to persons in the same situation or similar situations).^[381] In that, the Constitutional Court stated that the criteria (attributes) underlying any specialized norms should be determined on the basis of the goal pursued by the differentiation in legal regulation, i.e., the criteria themselves and the legal consequences of differentiation should be essentially interdependent.

Thus, according to the legal positions of the Constitutional Court the legal regulation of differentiation cannot be arbitrary. It should: (1) be objectively justified (have objective foundations) (2) be based on legitimate reason, (3) pursue constitutionally significant goals, (4) be proportionate to these goals.^[382]

It should be noted that the above legal position of the Constitutional Court of the Russian Federation to a certain extent reflect those positions that have already been worked out earlier in the doctrine of labour law with regard to the differentiation of legal regulation in the sphere of labour.

In particular, the doctrine of labour law also believes that any differentiation of legal regulation should be based on clear, understandable and fair grounds. In fact, it is for this purpose that it is proposed to divide the criteria for differentiation into two groups: the criteria associated with subjective features of the employee (subjective criteria), and the criteria related to the objective conditions of work (objective criteria).^[383] However, different authors provide different views as to what may be considered as objective grounds for differentiation. For example, M.V. Lushnikova believs that such grounds are: (1) industry (profession); (2) conditions of labour; (3) legal status of the employer; (4) territory.^[384] I.O.

Article 251 of the RF Labour Code provides that the differentiation of legal regulation in the sphere of labour by means of restricting norms (partially limiting the application of general rules) and complementing norms (providing additional rules for certain categories of workers). At the same time, selection of only these two types of norms by a number of authors appears to be insufficient for the purposes of differentiation. In fact, they point to the need to use an additional structure for the purposes, which is instrumental norms.^[387]

But not all of the publicists agree with that. In particular, F.B. Shtivelberg notes that instrumental norms are absorbed by compementing norms, because they do not supersede general rules but adapt them to specific relations. Complementing norms perform the same function.^{[388] [389] M.V. Lushnikova shares a similar view and}

believes that instumental norms are a special subcategory of complementing

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norms .

According to K.Ya. Ananyeva, labour of medical employees is regulated by the complemeting norms as well as by the norms establishing a special procedure for the application of general rules.^[390] It can be concluded that in the latter case, K.Y. Ananieva actually meant instrumental norms. As for the restricting norms, they are, in her opinion, are extremely rare in the sphere of legal regulation of labour of medical employees, that is, they are practically not used as an instrument of differentiation in this area.

We would agree with those authors who believe that instrumental norms perform the same function as the complementing norms.

It appears that labour of medical employees is governed both by the restricting norms (as an example, the provision prohibiting the employees of emergency care to suspend their work in case of delay of salary (Article 142 of the Labour Code)), and by the complementing norms (such as the rules on granting additional leave and on reduced working time (Article 350 of the Labour Code)). In that, the analysis of the existing legal regulation shows that the number of restricting norms is quite scarce in the legislation regulating the work of medical employees. The main method of differentiation in this area is by application of complementing norms.

L.V. Rozhnikov formulated the concept of the special subject of labour law: it is a person, whose labour is governed by special rules, in addition to general ones. He believes that it is due to the that that the employee is provided with special labour law personality and special labour law status. According to him, the criterion for determining special subjects is that they have such features of their legal status, that effective regulation of they legal status can only be achieved by differentiation of this regulation.^[391]

However, the principle of differentiation is not the only one of the principles that, in the course of their application, contribute the formation of a special labour law status of an employee. In this sense, we should agree with M.V. Lushnikova that an important prerequisite (characteristic) of this status is that the principle of differentiation should be in balance with the principle of unity of regulation of labour of such a subject (employee). Only with such a balance one can discuss a special subject of labour law, that is, a subject with significant features in the legal regulation of his labour in comparison with other subjects.^[392]

The legal status of medical employee and special requirements for his labour activity have repeatedly been investigated by experts in the fields of medicine and law. ^[393] In fact, all of them are right to believe that the features of medical employee\'s labour law status is determined by the specifics of his labour.

In 1968 K.Ya. Ananyeva provided the following grounds for differentiation:

(1) special importance of health care system in life and development of the society,

(2) nature of professional activity (the object of application of labour is human life and health), (3) special conditions of work (huge responsibility in work; maximum spending of mental energy; great nervous exhaustion, harmful conditions, hazardous work).^[394] In 1990, S.I. Ozozhenko added this list with such criterion as the territory where the medical institution is located, although she excluded another ground: special importance of health care system in the life of society. ^[395]

In one of latest works devoted to this subject, authored by E.V. Astrakhantseva, similar grounds were specified for objective differentiation in the legal regulation of medical employees: (1) special socio-economic importance of health care system in the Russian economy and of its special function, i.e. public health care; (2) specifics of labour activity; (3) differences in working conditions of professionals in basic professions and related professions.^[396] D.B. Razieva also mentioned these grounds.^[397]

The most meaningful view seems to be that of V.L. Popov and N.P. Popova, and according to them a fundamental feature of medical practice is that it is, to a greater extent than any other activities, aimed at preserving life and health, i.e., the values that represent the highest humanitarian values in human society.^[398]

At the same time, all the above authors did not carry out an analysis of the constitutional significance of the grounds of the differentiation legal regulation of medical labour that they proposed. In addition, they did not find out some other important grounds for such differentiation of legal regulation with constitutional significance. The requisite analysis of these issues will be carried out below in paragraph 3.1, specially dedicated to the traditional features of a medical employee\'s labour law status.

Here, we would only note that on the basis of this analysis the following can be stated: medical employee has, in particular, certain constitutionally significant features that serve as constitutionally justified basis for the classification of the criteria of differentiation of legal regulation of medical labour.

Let us now refer, in particular, to yet another classification based on objective differentiation of medical labour. In the doctrine of the labour law the grounds for objective differentiation of regulation of medical labour are divided into external and internal grounds.^[399] External grounds are the grounds associated with the difference of health care industry from the other sectors and which, respectively, leads to the contrast between medical labour and labour in other industries. Internal grounds for f differentiation are the grounds flowing from the differences inside medical profession and depending on the specialty of a specific medical worker, his, position, qualifications, and other similar factors.

External and internal grounds are intertwined, because in reality many of them, as G.S. Skachkova rightly noted, do not operate in isolation from each other and are in a close relationship.^[400] It is also significant, in her opinion, that their list could be expanded, updated and filled with new content.

Internal grounds for differentiation may themselves be also the grounds for external differentiation, as they include intraspecific features that characteristic for medical employees that distinguish them from any other kinds of employees. It should also be noted that most of the grounds for internal differentiation is associated with such criteria as position, specialty and qualifications of a medical employee, since it is these parameters that determine the nature and conditions of labour, form of ownership of the employer as an institution (private or public) and its form of incorporation (commercial or non-commercial entity), the complexity of labour and other factors.

Internal grounds for differentiation allow to differentiate medical employee\'s labour law status. At the same time these internal grounds start being the criteria (grounds) for differentiation of medical employee\'s labour law status. These grounds may be, first of all, position, specialty and qualification (all other grounds to some extent derive from, and (or) are mediated by them).

External and internal grounds of differentiation can be compared, respectively, with general (uniform) and specialized (differentiated) components of medical employee\'s labour law status. The general (uniform) component of the medical employee\'s labour law status is a set of common, identical for all medical employees\' rights, duties and liabilities. As for the specialized (differentiated) component of the labour law status of medical employees, it is determined by a scope of special rights, duties and liabilities that correspond to certain positions, specialties and qualifications, that is, it will be different for medical employees at different positions and (or) with different specialties and qualifications.

The study that has been carried out as to the circumstances that caused the existence of special featues of medical labour, enables us to construct sufficiently detailed indicative lists of external and internal grounds for the differentiation of legal regulation of the labour of medical employees.

External grounds are as follows: (1) characteristics of the medical industry (this includes, for example, the importance of public health); (2) specificity of the content of labour and its arrangement (frequent overtime work and overnight shifts, public restrictions on rights; special admission to work for persons foreign medical degrees); (3) liabilities related to medical labour (high level of liabilities in connection with the need to bring the patient to the recovery, removing it from the borderline states, treatment of complex pathological conditions, uncertainty of labour related to the choice of the means and methods of treatment); (4) harm and danger of working conditions (harmful and hazardous work: work in a leper colony, anti-plague institutions, burn centers, HIV institutions, psychiatric centers, etc.).

Internal grounds for differentiation include: (1) position of medical employee (chief medical officer, his deputy, head of the medical unit, head of the department, doctor, nurse); (2) specialty of medical employee (basic, additional, requiring special training); (3) continuing medical education (first, second, highest qualification); (4) The complexity of the work (work-related labouratory tests, medical instruments, the reception of patients, with the implementation of complex medical procedures); (5) impossibility of strict regulation of labour (labour of chief medical officers and their deputies in the conditions of irregular working hours; the work of doctors, who have to finish overtime since the medical intervention (e.g. surgery), is urgent or if it cannot be suspended or should be completed at a certain time; labour of labouratory doctos, doctors biophysicists that can be subject to certian regulation); (6) form of ownership of the property of the employer (working in governmental (federal or regional institutions) or municipal medical institutions, private medical institutions); (7) The geographical conditions of work (performance of work in the city or in rural areas).

To sum up the above, with the reference to the constitutionally-based principles of differentiation of legal regulation, it can be concluded that there is a need to consider medical employees as the subjects of labour law having special legal law personality and special labour law status. The special labour law status of a medical employee consists of the following two components that need to be considered: general (uniform) and specialized (differentiated). The general (uniform) component of the labour law status of a medical employee should be understood as a set of common rights, duties and liabilities, identical for all medical employees. The specialized (differentiated) component of the labour law status of a medical employee should be understood as a scope of special rights, duties and liabilities that correspond to the position, specialty and qualification of a specific medical employee.

¹²⁰ Ibid.

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