Individual labor disputes and the procedure for their resolution
Introduction
The concept and types of individual labor disputes
1 The concept of an individual labor dispute
2 Types of individual labor disputes and their jurisdiction
Consideration of individual labor disputes in the commission on labor disputes
1 Legal status and principles of activity of the commission on labor disputes
2 The procedure for considering an individual labor dispute in a labor dispute commission
Consideration of individual labor disputes in court
1 Jurisdiction and jurisdiction of individual labor disputes
2 The procedure for considering individual labor disputes in court
Conclusion
Bibliography
Introduction
The relevance of the study is due to the fact that individual labor disputes are one of the main types of disputes that arise in practice. The interests of the employer and the employee hired by him often do not coincide, therefore, their clash often occurs, mainly associated with illegal dismissal, non-payment of wages, transfer to another job, refusal to conclude an employment contract, etc.
Labor legislation directs the participants in labor relations to establish social partnership relations among themselves, under which labor disputes and conflicts should, if not completely excluded, then be largely prevented. But the real socio-economic situation in the country shows that a conflict-free development of labor relations has not yet been observed.
Arising disagreements between the employee and the employer can always be resolved by mutual agreement, an agreement reached during direct negotiations between the conflicting parties. However, if such an agreement does not take place and the interested party submits the disagreement to the competent authorities, then an individual labor dispute or conflict in the legal sense arises.
The objectives of the study are:
-study of the legal aspects of resolving individual labor disputes; -conducting an analysis of the current labor legislation, which establishes the features of the consideration of individual labor disputes; To achieve these goals, the following tasks were set: -to analyze the concept of an individual labor dispute; -determine the range of principles for resolving individual labor disputes; -explore the system of bodies for the consideration of individual labor disputes; -consider the pre-trial procedure for resolving individual labor disputes in the commission on labor disputes; -consider the judicial procedure for resolving individual labor disputes. To achieve these goals and objectives, work was carried out, which was carried out using various methods. As a general method scientific knowledge the categories of materialistic dialectics were used. Widely used general scientific methods: analysis, synthesis, systematic approach, etc. The object of the study is the social relations that arise between the employee, the employer and the competent authorities in the process of considering and resolving individual labor disputes. The subject of the research is the norms of labor legislation, legal procedural and procedural norms that mediate the consideration and resolution of individual labor disputes. The theoretical basis of the study was the works of domestic and foreign experts in the field of labor law. These are, first of all, the scientific developments of K.N. Gusova, V.N. Tolkunova, A.M. Kurennogo, L.N. Anisimova, V.I. Mironova and others. 1. The concept and types of individual labor disputes 1 The concept of an individual labor dispute The right of citizens to labor disputes is enshrined in Part 4 of Art. 37 of the Constitution of the Russian Federation, which states that in Russian Federation the right to individual and collective labor disputes is recognized using the methods of their resolution established by federal law, including the right to strike. In accordance with Part 1 of Art. 381 further of the Labor Code of the Russian Federation, an individual labor dispute is an unresolved disagreement between an employer and an employee on the application of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, an agreement, a local regulatory act, an employment contract (including the establishment or change of individual working conditions), which are declared to the authority Also, according to part 2 of Art. 381 of the Labor Code of the Russian Federation, an individual labor dispute is a dispute between an employer and a person who previously had an employment relationship with this employer, as well as a person who has expressed a desire to conclude an employment contract with the employer, if the employer refuses to conclude such an agreement. A labor dispute arises when the subject of an employment or legal relationship closely related to him believes that his right has been violated, that the relevant body has incorrectly applied the norms of labor legislation, i.e. These are disputes arising in connection with the application of labor law. Labor disputes may also arise in connection with the application of an employment contract that provides for conditions established not only by law, but also by agreement of the parties. Actual or imaginary failure to comply with the terms of an employment contract by one of the subjects of an employment relationship leads to the emergence of labor disputes, which are disputes about the application of this contract. Along with this, disputes may arise between the subjects of labor and individual legal relations closely related to them not on the application of current legislation or labor contracts, but in connection with the establishment (change) of new working conditions. In these cases, we are not talking about the presence or absence of certain rights and obligations of the subjects of a particular legal relationship or their violations, but about what specific rights and obligations (working conditions), their scope and content should be established for the subjects of an employment relationship. Within the meaning of Art. 381 a) disagreements between the employer and a particular employee (including former employees and persons applying for an employment contract) arise over the employment relationship between them; b) the disagreements between these parties are related to the application of labor law rules governing labor relations with the participation of this particular employee; c) the relevant disagreements could not be resolved during direct negotiations; d) these disagreements are referred to the body for the consideration of individual labor disputes. If a dispute arises over non-fulfillment or improper fulfillment of the terms of an employment contract that are of a civil law nature (for example, on the provision of housing, on payment to an employee of the amount for the purchase of housing), despite the fact that these conditions are included in the content of the labor contract, they by their nature, they are civil obligations of the employer, and, therefore, the jurisdiction of such a dispute (district court or justice of the peace) should be determined based on the general rules for determining the jurisdiction of cases established by Art. Art. 23 Causes of labor disputes: culpable non-fulfillment or improper fulfillment of labor duties by an employee, employer; different assessment by the parties of the fact of application of labor legislation; conscientious misconception of an employee or employer about the ownership of a subjective right or an obligation imposed on the other party to the employment contract; certain gaps in some normative legal provisions (the concepts of moral damage, forced absenteeism, cancellation of an employment contract are not disclosed, suitable job) and etc. 2 Types of individual labor disputes and their jurisdiction Labor disputes can be classified, first of all, according to the nature of the subject matter of the dispute (content), i.e. by the nature of the powers of the disputed legal relationship. The subject of the dispute should be understood as a subjective right (or duty). By its nature, the subjective right (or duty) of the subject of labor or a legal relationship closely related to it can be the right (duty) to apply the current one or the right (duty) to establish a new (change) norm of labor legislation. Depending on whether the specified subject of the disputed legal relationship exercises its authority (duty) to apply the norm of labor law to specific social relations or whether it exercises the authority (duty) to establish new working conditions (rules of law), two types of labor disputes are distinguished: )disputes related to the application of the norms of the current labor legislation to specific social relations and the observance of the rights and obligations of the subjects of the relevant legal relations; disputes about the application of the norms of labor legislation established by it or labor contracts, social partnership agreements on rights and obligations; )disputes related to the establishment of new (changes in existing) working conditions that are not regulated by labor legislation or another act. The first type of disputes includes disputes related to the dismissal of an employee, the payment of wages, the provision of leave, compensation by the enterprise for material damage caused to the employee, etc. The second type of disputes includes those related to the revision of production standards, the establishment of a bonus system for workers, etc.
However, not all disputes related to the establishment of new working conditions are labor disputes. Labor law includes only those that arise in connection with the establishment of working conditions by the administration of enterprises (institutions) or by it jointly (or in agreement) with the trade union committee, i.e. when the subject of labor or legal relations closely related to them participates in the establishment of working conditions. Disputes about the establishment of working conditions between bodies that are not subjects of labor and closely related legal relations are the subject of study of administrative and other branches of law.
Also, labor disputes are divided depending on the type of disputed legal relationship. An additional defining feature here is the subject (party of the legal relationship) who has filed a dispute with the appropriate jurisdictional body. So, in the same labor relationship, the subject of the dispute can be both the employee and the administration, depending on who applied for the resolution of the dispute, whose rights are actually or allegedly violated .
On this basis, the following types of disputes can be distinguished: )disputes arising from labor relations (the majority of them, for example, about payment for overtime work); )disputes arising from legal relations on employment, while legal relations on employment are divided into three subspecies: a) legal relations between a citizen interested in getting a job and an employment agency; b) legal relations between the employment agency and the enterprise to which the employee is sent; in) legal relations between the interested citizen and the enterprise to which he is sent. The number of labor disputes includes only disputes from the first and third subspecies of legal relations on employment. )disputes arising from legal relations between trade union and economic bodies on issues of production, labor and life (for example, disputes over the resolution of overtime work, hiring teenagers, etc.); )disputes arising from legal relations to compensate for material damage caused by an employee to an enterprise, institution (for example, the amount of administrative deductions made from wages for damage caused is disputed); )disputes arising from legal relations for compensation for material damage caused to an employee by injury or other damage to health associated with work (for example, a dispute over the right to compensation for damage caused by injury on the territory of the enterprise during a lunch break); )disputes arising from procedural labor relations (for example, a dispute between an employee and the trade union committee on the legality of considering the complaint of this employee against the decision of the CCC in the absence of half of the members of the trade union committee); )disputes arising from legal relations regarding the material support of employees (employees) and members of their families at the expense of social insurance funds (for example, a dispute about the amount or the right to receive temporary disability benefits; benefits on the occasion of the birth of a child, etc.). The classification of disputes is important for determining their jurisdiction - for each group, a certain procedure for consideration and a body authorized to resolve this dispute are established. 2. Consideration of individual labor disputes in the commission on labor disputes 1 Legal status and principles of activity of the commission on labor disputes According to Art. 382 of the Labor Code of the Russian Federation, labor dispute commissions (hereinafter referred to as CCC) are bodies for the consideration of individual labor disputes along with the courts. At the same time, in accordance with Part 1 of Art. 385 of the Labor Code of the Russian Federation, the CCC considers disputes that arise in organizations, with the exception of disputes for which federal legislation establishes a different procedure for consideration. In the legal literature, it is noted that the CCC, like the court, is a jurisdictional body, i.e. has the right to consider the dispute on the merits and make a decision binding on the parties, which can be enforced. Thus, the specificity of the legal status of the CCC is determined by the fact that this body is a jurisdictional body for pre-trial consideration of labor disputes within its competence. E.Yu. Zabramnaya points out that the competence of the CCC is determined according to the residual principle, since it considers only those cases for which federal legislation does not establish a different procedure for consideration. The Labor Code of the Russian Federation narrowed both the scope of the creation and functioning of the CCC, and the list of disputes subject to consideration by this body. The CCC acts as the body considering the majority of individual labor disputes. Its competence includes disputes on the recovery of: -wages, including allowances provided for by the wage system, bonuses; -on changes in the essential terms of the employment contract; -overtime pay; -on the application of disciplinary sanctions; -on the payment of compensation when sent on a business trip; -on the return of the amounts of money withheld from wages as compensation for damage caused to the employer; -disputes arising from incorrect or inaccurate entries in the work book, etc. The Commission does not have the right to accept for its consideration disputes that are within the competence of the court (Article 391 of the Labor Code of the Russian Federation). The commission does not consider disputes of civil servants and other categories of employees for whom a special procedure for resolving individual labor disputes has been established. In the event that an employee applied to the commission on labor disputes for consideration of a dispute that is not under its jurisdiction, the commission, having considered the application, may refuse to resolve the dispute on the merits. The employee is explained the procedure for considering an individual labor dispute that has arisen for him. Recently, the point of view has become widespread that the decrease in the importance of the CCC as a body for resolving individual labor disputes is due to the fact that labor dispute commissions, for various reasons, cannot cope with their legitimate role as an effective pre-trial dispute resolution body. Among such reasons A.K. Bondarev highlights the following: )The CCC is not, in practice, an impartial and independent body, since, established in an organization, it is under the strong influence of the employer; )there are not so many organizations where CCCs have been created and are functioning, and even more so there are practically none in commercial structures, and in most organizations labor dispute commissions have not been created due to the lack of initiative of employees and (or) the employer or a small number of staff ; )a significant part of labor disputes is subject to consideration only in the courts, thus, for the majority of labor disputes, the courts are the only, non-alternative bodies in which justice can be restored; )the incompetence of the members of the commission on labor disputes plays a significant role. They can't figure it out difficult questions current legislation due to insufficient preparedness to perform the functions assigned to them and, in particular, the lack of legal education and relevant practice. )decisions made by labor dispute commissions are often not executed by the employer voluntarily, since the commissions are not authoritarian bodies for them, and bailiffs, for various reasons (in most cases quite reasonably) refuse to enforce the decision of the labor dispute commission, including in connection with gross violations of the existing norms and rules for considering cases and making decisions, missing the deadlines for issuing executive documents by commissions or the deadline for presenting these documents for execution, etc. At the same time, many authors express a directly opposite point of view and argue that the argument that the CCC is not in a position to impartially consider the case and resolve the dispute, because it is under the influence of the employer, seems unconvincing. Currently, the CCC is being formed as a body of social partnership, on a parity basis, and includes both representatives of employees and representatives of employers. Thus, we believe that the true state of affairs, apparently, is somewhere in the middle. In practice, there are both situations when the CCC is not created or is inactive, and the exact opposite - when the CCC activity is sufficiently effective and balanced, primarily because when considering a dispute in the CCC, to a greater extent than in court, the specifics of specific organization. According to T.A. Savelyeva, the pre-trial procedure for considering labor disputes should be based on the following principles: -availability of appeal to the body for consideration of individual labor disputes; -free circulation; -the principle of legality; -the principle of publicity in the consideration of individual labor disputes. The pre-trial body should consist of professional lawyers (the principle of professionalism); -the principle of equality of arms. -the principle of dispositivity, which implies broad rights of persons participating in the case. -the principle of enforcement of the decision; -the principle of independence of the pre-trial body. None of the disputing parties should have the opportunity, even indirectly, to influence the work of the pre-trial body. When making a decision, he must be independent, independent and obey only the law. When considering this principle, one should agree with the opinion of I.O. Snigirev, who notes that “representatives of the employer in the KTS may, in terms of their position, coincide with persons classified as its representatives by law or by the constituent documents of the organization. However, the head of the organization cannot be its representative in the CCC. Since labor disputes, as a rule, arise as a result of making decisions with which the employee does not agree. The specified set of principles for the CCC activities proposed should be approached critically, weighing all the pros and cons. Thus, it is necessary to make very significant reservations regarding the principle of professionalism. So, in particular, the composition of the CCC is not always represented exclusively by lawyers, and this should not affect the decision. In general, as E. Safarova notes, for the employer, in addition to the obvious disadvantages in the form of the obligation to ensure the work of the commission and the presence of a body that considers labor disputes directly on its territory, the CCC can be a positive aspect of the educational nature of the consideration of disputes in such a body, since it is unfavorable for For the employer, the decision of the commission basically does not change anything: the employee can get a similar decision in court, but a favorable decision of the commission positions the employer as law-abiding and reduces the motivation of other employees to start individual labor disputes on the same or similar grounds. In addition, the formation and support of the work of the commission cannot but have a beneficial effect on the image of the employer as listening and taking into account the interests of employees. 2 The procedure for considering an individual labor dispute in a labor dispute commission Article 385 To apply to the KTS in Art. 386 Individual labor disputes are considered by the CCC in the following order (Article 387 A big problem today is the abuse by the employer of their rights. Thus, an employer can impede the activities of the commission with impunity, creating conditions for the absence of a quorum at a meeting of the CCC. For example, the employer has the opportunity to prevent the participation of his representatives (or part of his representatives) in the consideration of labor disputes of the CCC on legal grounds. In particular, on the day the dispute is considered, he can send some of his representatives (more than half of the total number appointed) to negotiate the conclusion of an agreement, to the tax service, other state authorities (administrations), etc. In some cases, this is due to the reluctance of the head of the organization to have on its territory such a pre-trial body as the CCC. Sometimes this is due to other reasons. For example, the head of an organization artificially creates conditions for delaying the consideration of a labor case in the CCC, hoping that the employee will not dare to exercise his right to judicial protection. From a legal point of view, such behavior of the head of the organization is quite difficult to classify as unlawful. Since the head is responsible for the activities of the organization as a whole, it is he who has the right to manage the personnel in order to achieve the tasks set and determine the importance of certain orders given to his subordinates, incl. appointed to the commission. It is quite difficult to prove abuse of the right in this situation. The dispute is considered in the presence of the employee who submitted the application, or a representative authorized by him. Consideration of the dispute in the absence of the employee or his representative is allowed only upon a written application of the employee. If the employee or his representative fails to appear at the meeting of the specified commission, the consideration of the labor dispute is postponed. In the event of a second non-appearance of an employee or his representative without good reason, the commission may decide to withdraw the issue from consideration. This does not deprive the employee of the right to file an application for consideration of a labor dispute again within the period established by the Labor Code Labor Code The Labor Disputes Commission has the right to summon witnesses to the meeting and invite specialists. At the request of the commission, the employer (his representatives) is obliged, within the time period established by the commission, to submit to it Required documents. A meeting of a labor dispute commission is considered competent if at least half of the members representing employees and at least half of the members representing the employer are present. At a meeting of the commission on labor disputes, a protocol is kept, which is signed by the chairman of the commission or his deputy and certified by the seal of the commission. The commission on labor disputes makes a decision by secret ballot by a simple majority of votes of the members of the commission present at the meeting. The decision of the commission on labor disputes shall indicate: the name of the organization or the surname, name, patronymic of the employer - an individual entrepreneur, and in the case when an individual labor dispute is considered by the commission on labor disputes of the structural unit of the organization - the name of the structural unit, surname, name, patronymic, position, profession or specialty of the employee who applied to the commission ; dates of application to the commission and consideration of the dispute, the substance of the dispute; surnames, names, patronymics of the members of the commission and other persons present at the meeting; Copies of the decision of the commission on labor disputes, signed by the chairman of the commission or his deputy and certified by the seal of the commission, are handed over to the employee and the employer or their representatives within three days from the date of the decision (Article 388 The decision of the commission on labor disputes is subject to execution within three days after the expiration of ten days provided for its appeal (Article 389 of the Labor Code of the Russian Federation). In case of non-execution of the decision of the commission on labor disputes within the time period established in the decision, the CCC issues the employee a certificate, which is an executive document. An employee may apply for a certificate within one month from the date of the decision of the labor dispute commission. If the employee misses the specified period for valid reasons, the labor dispute commission may restore this period. The certificate shall not be issued if the employee or the employer has filed an application for the transfer of the labor dispute to the court within the prescribed period. In order to enforce the decision of the CCC forcibly, it is necessary to present the certificate issued by the CCC to the bailiff within three months from the date of receipt of the certificate. For valid reasons, this period may be extended. 3. Consideration of individual labor disputes in court 1 Jurisdiction and jurisdiction of individual labor disputes If an individual labor dispute is not considered by the labor dispute commission within ten days from the date the employee submits the application, he has the right to transfer its consideration to the court (part two of Article 387, part one of Article 390 of the Labor Code of the Russian Federation).
But there are a number of disputes that are considered directly by the court, without considering them in the CCC. There are also individual labor disputes that are initially resolved by higher authorities. Therefore, it is very important to correctly determine the jurisdiction of a particular individual labor dispute for its fastest and correct resolution. The employee has the right to apply to the court for resolution of an individual labor dispute within three months from the day when the employee learned or should have learned about the violation of his right, and for disputes about dismissal - within one month from the date the employee received a copy of the dismissal order or from date of issue of the work book Article 391 at the request of the employee, employer or trade union protecting the interests of the employee, when they do not agree with the decision of the commission on labor disputes (appeal against the decision of the commission is made within ten days from the date of receipt of a copy of the decision); when an employee goes to court, bypassing the commission on labor disputes, at the request of the prosecutor, if the decision of the commission on labor disputes does not comply with labor legislation; Individual labor disputes are considered directly in the courts on the basis of the employee’s statements regarding: reinstatement at work, regardless of the grounds for termination of the employment contract; changes in the date and wording of the reason for dismissal; transfer to another job; payment for the time of forced absenteeism or payment of the difference in wages for the time of performing lower-paid work; unlawful actions (inaction) of the employer in the processing and protection of personal data of the employee; discrimination; denial of employment. At the request of the employer, the court will consider the dispute on compensation by the employee for damage caused to the employer, unless otherwise provided by federal laws. Also, the court will directly consider the applications of employees working under an employment contract with employers - individuals who are not individual entrepreneurs, and employees of religious organizations. In accordance with Part 2 of Art. 4 It should be borne in mind here that by virtue of Part 1 of Art. 45 Along with the prosecutor, in accordance with Part 1 of Art. 46 When applying to the court with a claim for claims arising from labor relations, employees are exempted from paying duties and court costs (Article 393 3.2 The procedure for considering individual labor disputes in court After accepting the application, the judge appoints a preliminary court session, in which the parties get acquainted with their rights, clarify the claims, the court determines the evidence necessary to present. It is at this stage of the process of consideration of the labor dispute "employer-respondent" that the judge proposes to conclude a settlement agreement. According to the results of the preliminary, the actual court session is scheduled. The court session is held according to the general rules for considering civil cases. The judge checks the appearance of persons, explains the rights and obligations to the parties, asks about the presence of challenges or petitions. The next step is for the parties to the dispute to state their position. After the court examines the evidence, interrogates witnesses, the parties ask each other questions. The total term for consideration of cases in civil proceedings is up to two months from the date of receipt of the application to the court, and cases on reinstatement, on the recovery of alimony are considered and resolved before the expiration of a month by virtue of Art. 154 After consideration of all the evidence, a debate of the parties is held (the plaintiff and the defendant state their final position on the case), and the court immediately makes a decision. At the court session, only the substantive part is announced - whether the plaintiff's claims were satisfied or denied. The decision itself is prepared within five days and handed over or sent by mail to the persons participating in the case. If the employer does not agree with the decision, it can appeal to higher courts in accordance with Art. 336 So, when recognizing a dismissal or transfer to another job as illegal, Art. 394 If the employer at the time of the decision has already excluded the position of the employee from the staff list The court must also decide on the payment to the employee of the average earnings for the entire period of forced absenteeism or the difference in earnings for the entire period of performance of lower-paid work. If the dismissal is recognized as illegal, the body considering the individual labor dispute may, at the request of the employee, decide to change the wording of the grounds for dismissal to dismissal of their own free will. If the wording of the grounds and (or) the reason for dismissal is recognized as incorrect or not in accordance with the law, the court considering an individual labor dispute is obliged to change it and indicate in the decision the grounds and reason for dismissal in strict accordance with the wording of the Labor Code If the dismissal is declared illegal, and the term of the employment contract for the time the dispute is considered by the court has expired, then the court considering the individual labor dispute is obliged to change the wording of the grounds for dismissal to dismissal after the expiration of the employment contract. If, in the cases provided for in this article If the incorrect wording of the grounds and (or) reasons for dismissal in the work book prevented the employee from entering another job, then the court decides to pay the employee average earnings for the entire period of forced absenteeism. In cases of dismissal without legal basis or in violation of the established procedure for dismissal or illegal transfer to another job, the court may, at the request of the employee, decide on the recovery in favor of the employee of monetary compensation for moral damage caused to him by these actions. The amount of this compensation is determined by the court. The decision on the reinstatement of an illegally dismissed employee at work, on the reinstatement of an employee illegally transferred to another job at the previous job, is subject to immediate execution. Immediate execution in this case means the issuance by the employer of an order to reinstate the employee at work in his previous position on the next business day after the decision is made. The employer does not have the right to postpone the execution of the court decision after it has entered into force, even if the employer has filed a cassation or supervisory appeal with a higher judicial authority. If the employer delays the execution of such a decision, the decision-making body issues a ruling on payment to the employee for the entire time of the delay in the execution of the decision of the average earnings or the difference in earnings (if the employee worked at another job during the delay in the execution of the judgment). Conclusion A labor dispute is an unresolved disagreement between the subjects of labor law, which has been submitted to the jurisdictional body for consideration regarding legal regulation labor and other social relations closely related to them, which are included in the subject of labor law. An individual labor dispute is recognized as unresolved disagreements between an employer and an employee on the application of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, an agreement, a local regulatory act, an employment contract (including the establishment or change of individual working conditions), about which it is declared in body on consideration of individual labor disputes. An individual labor dispute is also recognized as a dispute between an employer and a person who previously had an employment relationship with this employer, as well as a person who expressed a desire to conclude an employment contract with the employer, if the employer refuses to conclude such an agreement. Thus, the legislator regulated in sufficient detail the procedures for resolving individual labor disputes. Employees can protect their rights by negotiating with the employer, filing a labor dispute committee or going to court. This procedure should serve as an effective tool for protecting the labor rights of workers. The Labor Code of the Russian Federation defines two bodies that are authorized to consider individual labor disputes - the commission on labor disputes and the court. Having studied the issues of consideration and resolution of individual labor, we found that there are some problems of legislative regulation of this legal institution: the absence of legislatively fixed principles for the work of the commission on labor disputes; the presence of a condition providing for the consideration of an individual labor dispute in a labor dispute commission if the employee has not resolved the differences with the employer on his own or with the participation of his representative. This implies that the employee, before applying to the labor dispute commission, is obliged to resolve the dispute with the employer on his own and further prove this circumstance. The elimination of these problems will improve the procedure for resolving individual labor disputes. labor dispute legal legislation Bibliography 1. Regulatory legal acts: Labor Code of the Russian Federation [Text]: [adopted on December 30, 2001 No. 197-FZ] // Collection of Legislation of the Russian Federation. - 07.01.2002. - No. 1 (part 1). - Art. 3. Civil Procedure Code of the Russian Federation [Text]: [adopted on November 14, 2002 N 138-FZ] // Collection of Legislation of the Russian Federation. - 2002. - No. 46. - Art. 4532. Monographs: Anisimov L.N. Labor contract and individual labor disputes [Text] / L.N. Anisimov. - M.: Vlados, 2004. Buyanova M.O. Labor law: textbook. - M.: Prospekt, 2011. [Electronic resource] SPS "ConsultantPlus". Gusov K.N., Tolkunova, V.N. Labor law of Russia [Text] / K.N. Gusov, V.N. Tolkunov. - M.: Prospekt, TK Velby, 2010. - 496 p. Kiselev I.Ya., Leonov, A.S. Commentary on the Labor Code of the Russian Federation [Text] / I.Ya. Kiselev, A.S. Leonov. - M.: Delo, 2013. Kolobova S.V. Labor law of Russia. Tutorial[Text] / S.V. Kolobov. - M.: Yustitsinform, 2013. Commentary on the Labor Code of the Russian Federation [Text] / Ed. ed. M.Yu. Tikhomirov. - M.: Statute, 2010. Commentary on the Labor Code of the Russian Federation. Extracts: scientific and practical comment / otv. ed. Yu.P. Orlovsky. - M.: CONTRACT, 2012. [Electronic resource] ATP "ConsultantPlus". Kostyan I.A. Labor disputes: the procedure for considering labor cases / I.A. Kostyan. - 2nd ed., revised. and additional - M.: MTsFER, 2006. Desk book of a judge on labor disputes: educational and practical guide / G.A. Zhilin, V.V. Korobchenko, S.P. Mavrin and others; ed. S.P. Mavrina. - M.: Prospekt, 2011. [Electronic resource] SPS "ConsultantPlus". Savelyeva T.A. Law enforcement and pre-trial procedure for resolving individual labor disputes / T.A. Saveliev. - Tomsk: Ed. TSU, 2002. Labor Law of Russia: Textbook / otv. ed. Yu.P. Orlovsky, A.F. Nurtdinov. 2nd ed. - M.: CONTRACT, INFRA-M, 2008. [Electronic resource] ATP "ConsultantPlus". Bondarev A.K. Labor disputes: unresolved issues of legislation [Text] / A.K. Bondarev // Legislation. - 2009. - No. 8. Zabramnaya E.Yu. KTS: an extra link or a solution to problems? [Text] / E.Yu. Zabramnaya // Labor disputes. - 2009. - No. 5. Safarova E. Labor disputes: individual and collective [Text] / E. Safarov. // Labor law. - 2010. - N11. Arbitrage practice: Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” // Bulletin of the Supreme Court of the Russian Federation. - 2007. - N 3.
Individual labor disputes are considered by the commission on labor disputes and the court.
Commission on Labor Disputes by its legal nature, it is a body formed on an equal footing. In accordance with Art. 384 of the Labor Code of the Russian Federation, commissions are formed at the initiative of employees and (or) the employer from an equal number of representatives of employees and the employer. Representatives of employees to the commission on labor disputes are elected by the general meeting of employees of the organization or delegated by the representative body of employees with subsequent approval at the general meeting of employees of the organization. Representatives of the employer are appointed to the commission by the head of the organization.
Labor dispute commissions consider individual disputes arising in the organization, with the exception of disputes for which the Labor Code and other federal laws establish a different procedure for their consideration.
An employee may apply to a labor dispute committee within three months from the date on which he learned or should have known about the violation of his right.
Article 387 of the Labor Code of the Russian Federation provides for the procedure for considering an individual labor dispute in a labor dispute commission. The Commission is obliged to consider the dispute within ten calendar days from the date of submission of the application. The meeting of the commission is considered competent if it is attended by at least half of the members representing employees and at least half of the members representing the employer. The dispute is considered in the presence of the applicant and representatives of the employer. At the request of the employee, the dispute can be considered in his absence. For an objective and comprehensive consideration of the case, witnesses may be called to a meeting of the commission, specialists may be invited, the necessary documents and calculations may be requested. The decision is taken by secret ballot by a simple majority of votes of the members of the commission present at the meeting. The committee's decision must be in writing. As a rule, the decision has a motivational and resolutive parts (part 2 of article 388 of the Labor Code of the Russian Federation).
Certified copies of the commission's decision are handed over to the employee and the head of the organization within three days from the date of the decision. The decision of the commission on labor disputes may be appealed by the employee to the court within ten days from the date of handing him a copy of the decision of the commission.
The decision of the commission on labor disputes is subject to immediate execution within three days after the expiration of the ten days provided for appeal. In case of non-execution of the decision of the commission within the established period, the commission for labor disputes issues a certificate to the employee. The certificate is an executive document, on the basis of which the bailiff enforces the decision of the commission on labor disputes forcibly.
The certificate is not issued to the employee if he or the employer applied within the prescribed period with an application to transfer the labor dispute to the court.
In accordance with the current legislation, individual labor disputes are considered by district (city) courts. As part of the general procedure for resolving labor disputes, the district (city) court acts in relation to the commission on labor disputes as the second instance in cases of applying to it with a statement:
- an employee whose application was not considered within 10 days by the commission on labor disputes;
- an employee, employer or relevant trade union protecting the interests of an employee who is a member of this trade union, when they disagree with the decision of the labor dispute committee;
- prosecutor, if the decision of the commission on labor disputes does not comply with laws and other regulatory legal acts.
The court is not endowed by the current legislation with the right to review decisions of commissions on labor disputes on its own initiative, for example, by way of supervision. At the same time, the legislation refers to the competence of the court the direct resolution of a number of labor disputes as the first instance. So, directly in the courts are considered labor disputes on applications:
- employees on reinstatement at work, regardless of the grounds for termination of the employment contract, on changing the date and wording of the reason for dismissal, on payment for the time of forced absenteeism or performance of lower-paid work;
- the employer on compensation by the employee for material damage caused to the property of the employer.
In addition, disputes are also considered directly in the courts:
- about denial of employment. For example, at the request of persons invited by way of transfer from another employer at the request of other persons with whom the employer, in accordance with the law, was obliged to conclude an employment contract (for example, with a person sent by the employment service for employment at the expense of a quota);
- at the request of persons working under an employment contract with employers - individuals;
- at the request of persons who believe that they have been discriminated against.
The Plenum of the Supreme Court of the Russian Federation in its decision of March 17, 2004 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" explained that a person who believes that his rights have been violated may, at his own discretion, choose the method of resolving an individual labor dispute. He has the right to either initially apply to the commission on labor disputes (except for cases that are directly considered by the court), and in case of disagreement with its decision - to the court within 10 days from the date of delivery of a copy of the commission's decision to him, or immediately go to court.
Consideration of labor disputes in court as a whole is subject to the general requirements of civil proceedings. The procedure for considering labor disputes in court is regulated by labor and civil procedural legislation.
For the resolution of an individual labor dispute, the employee has the right to apply to the court within three months from the day when he learned or should have learned about the violation of his right, and for disputes about dismissal - within one month from the date of delivery of a copy of the dismissal order to him or from the day issuance of a work book. In case of missing the established deadlines for valid reasons (for example, in case of illness, moving to another area), they can be restored by the court. The day of dismissal is considered the last day of work. However, the term for appealing the dismissal begins its course in accordance with Part 2 of Art. 14 of the Labor Code of the Russian Federation on the day following the delivery of the dismissal order to the employee.
According to Art. 28 Code of Civil Procedure of the Russian Federation, a claim against an organization is filed with the court at the location of the organization, if the claim is related to work in a branch or representative office of the organization, the claim can be filed at the location of the branch or representative office.
The judge has the right to refuse to accept the application in the following cases: there is a court decision that has entered into legal force on the same issue, the dispute is not under the jurisdiction of the court in general, or on a territorial basis.
When considering a dispute in court, the parties are the employee and the employer. Representatives of the prosecutor's office and the trade union may act as participants in the process. But even if the application is filed by the trade union or the prosecutor in defense of the rights of the worker, they do not become a party to the dispute, and the worker in whose defense they spoke must confirm the claims. Employer ( individual or an organization) mainly acts as a defendant, and only if a claim is brought against the employee for compensation for material damage caused to the employer, he acts as a plaintiff.
In accordance with Art. 393 of the Labor Code of the Russian Federation, when applying to the court with a claim on claims arising from labor relations, employees are exempted from paying duties and court costs. Costs in relation to labor disputes may include amounts payable to witnesses and experts; costs associated with the production of on-site inspection; costs associated with the execution of a court decision.
Based on a comprehensive study of all materials, testimonies of the parties and other participants in the process, the court makes a decision. The decision formulates the conclusion of the court on the satisfaction of the claim or on the refusal of the claim. When satisfying the claims, the court clearly formulates what actions should be taken by the defendant in pursuance of the decision.
If the plaintiff renounced the claim in the course of the trial or the dispute ended with an amicable agreement, the court does not issue a decision, but a ruling in which the waiver of the claim is recorded or the amicable agreement is approved.
The decision of the district (city) court may be appealed by the parties to the dispute to a higher court within ten days. The complaint will be filed through the court that issued the decision.
An individual labor dispute considered in court shall be terminated by the execution of a court decision. The execution of a judgment is the actual implementation of the instructions contained therein. Decisions of courts on labor disputes are subject to execution upon their entry into legal force, except for cases of immediate execution. Article 396 of the Labor Code of the Russian Federation provides that the decision to reinstate an employee who was illegally dismissed or transferred to another job is subject to immediate execution. In case of disagreement with the court decision, the employer has the right to appeal the court decision, but this does not affect the execution of the decision on reinstatement. Not later than the next business day after the court decision on reinstatement at work, the employer must issue an order for reinstatement, and the employee must begin to perform his duties. If the employer delays the execution of such a decision (for example, the employer did not issue an order to reinstate the employee at work), the body that made the decision issues a ruling on payment to the employee for the entire time of the delay in the execution of the decision of the average earnings or the difference in earnings.
The direct execution of decisions of judicial bodies on labor disputes is assigned to the bailiffs.
The procedure for resolving labor disputes. The Constitution of the Russian Federation (clause 4, article 37) recognizes the right to individual and collective labor disputes using the methods of their resolution established by federal law, including one such as a strike. Labor disputes should be understood as disagreements arising over the application of labor legislation, the establishment or change of working conditions.
Disputes can be caused by:
- lack of awareness of employers and employees in labor legislation, as a result of which it is applied incorrectly;
- the imperfection of the legislation itself in rapidly changing external circumstances;
- disagreements between employees and the employer on the establishment of new or changes in existing working conditions, for example, the introduction of new production standards;
- disagreements between the employer and the trade union.
Individual labor disputes(Articles 381 - 397 of the Labor Code of the Russian Federation), arising between the employee and the employer on the application of legislation and other regulatory acts on labor, the collective agreement and other labor agreements, as well as the terms of the employment contract, are considered by labor dispute commissions or courts of general jurisdiction .
Commission on Labor Disputes(KTS) is elected by the general meeting of the labor collective and the employer. Candidates who received the majority of votes and for whom more than half of those present at the meeting voted are considered elected to the commission.
Election procedure, the number and composition of the CCC, the term of its powers are determined by the general meeting of the labor collective. The Commission elects a chairman and a secretary from among its members.
A labor dispute is subject to consideration in the CCC if the employee, independently or with the participation of the trade union organization, has not settled the differences during direct negotiations with the employer. An employee can apply to the CCC within three months from the day when he learned or should have learned about the violation of his right.
In its turn, the commission is obliged to consider the dispute within ten days from the date of filing the application. An employee's application received by the KTS is subject to mandatory registration. The dispute is considered in the presence of the employee who submitted the application and the representative of the employer. Consideration of the dispute in the absence of the employee is allowed only upon his written application. If the employee does not appear at the meeting of the commission, the consideration of the application is postponed. In the event of a second non-attendance of an employee at a meeting of the commission without a good reason, the commission may decide to withdraw this application from consideration.
KTS has the right to call to the meeting of witnesses, to invite specialists, representatives of the trade union. At the request of the commission, the employer is obliged to provide the necessary calculations and documents. The CCC makes decisions by a majority vote of the committee members present at the meeting. A member of the commission who does not agree with the decision of the majority is obliged to sign the protocol of the meeting of the commission, but has the right to express his dissenting opinion in it. Copies of the decision of the commission are handed over to the employee and the employer within three days from the date of the decision.
The decision of the CCC is subject to execution by the employer within three days after the expiration of the ten days provided for appeal. If the employer fails to comply with the decision of the commission within the prescribed period, the employee is issued a certificate having the force of a writ of execution. On the basis of a certificate issued by the commission and presented no later than three months from the date of its receipt by the court, the bailiff enforces the decision of the CCC by force.
Labor disputes are considered in courts of general jurisdiction in the following cases (Articles 391 - 397 of the Labor Code of the Russian Federation):
- if the employee or the employer does not agree with the decision of the CCC;
- at the request of the prosecutor, if the decision of the CCC contradicts the law;
- if at the enterprise the commissions on labor disputes are not assembled or have not been created;
- at the request of the employee for reinstatement at work, for changing the date and wording of the reason for dismissal, for payment for the time of forced absenteeism or for performing low-paid work;
- at the request of the employer on compensation by the employee for material damage caused to the enterprise.
The courts are considering also disputes about the refusal to hire persons invited in the order of transfer from another enterprise, as well as persons with whom the employer, in accordance with the law, was obliged to conclude an employment contract.
In a claim for reinstatement at work, an employee has the right to demand:
- immediate reinstatement at work;
- payment for forced absenteeism (even if the plaintiff does not require this in the statement of claim, the court is obliged to raise this issue with the defendant);
- compensation for moral damage (courts may satisfy claims for compensation for moral damage in an amount proportional to the value of the claim).
Job reinstatement claims are filed with the court within a month from the date of delivery to the employee of a copy of the dismissal order or from the date of issuance of the work book. An application for resolving a labor dispute is filed with the court within three months from the day when the employee found out or should have found out about the violation of his right. If an employee causes material damage to the enterprise, the employer has the right to apply to the court within one year from the date of discovery of the damage caused.
Reinstatement decision an employee unlawfully dismissed or transferred to another job is subject to immediate execution. If the employer delays the execution of the court decision on reinstatement at work, the court issues a ruling on the payment of average earnings to him.
Collective labor disputes. Collective labor dispute- unresolved disagreements between employees (their representatives) and employers (their representatives) regarding the establishment and change of working conditions (including wages), the conclusion, amendment and implementation of collective agreements, agreements, as well as in connection with the refusal of the employer to take into account the opinion of the elected representative body of employees when adopting acts containing labor law norms in organizations (Article 398 of the Labor Code of the Russian Federation).
Conciliation procedures - consideration of a collective labor dispute for the purpose of its resolution by a conciliation commission, with the participation of a mediator and (or) in labor arbitration(Article 398 of the Labor Code of the Russian Federation).
The moment of the beginning of the collective labor dispute - the day of notification of the decision of the employer (his representative) on the rejection of all or part of the claims of employees (their representatives) or failure to report the employer (his representative) in accordance with Art. 400 of the Labor Code of the Russian Federation of its decision, as well as the date of drawing up the protocol of disagreements during collective bargaining (Article 398 of the Labor Code of the Russian Federation).
Strike
- temporary voluntary refusal of employees to perform their labor duties (in whole or in part) in order to resolve a collective labor dispute (Article 398 of the Labor Code of the Russian Federation).
Employees and their representatives, determined in accordance with Art. 29 - 31 of the Labor Code of the Russian Federation. The requirements put forward by employees and (or) a representative body of employees of an organization (branch, representative office, other separate structural unit) are approved at a general meeting (conference) of employees. The meeting of employees is considered competent if more than half of the employees are present at it. The conference is considered eligible if it is attended by at least two thirds of the elected delegates.
The employer is obliged provide employees or representatives of employees with the necessary premises for holding a meeting (conference) to put forward demands and have no right to interfere with its (her) holding. The requirements of employees are set out in writing and sent to the employer. The demands of trade unions and their associations are put forward and sent to the relevant parties of social partnership. A copy of the requirements, drawn up in writing, may be sent to the Service for Settlement of Collective Labor Disputes. In this case, the specified Service is obliged to check the receipt of claims by the other party to the collective labor dispute.
Employers are required to consider workers' demands directed to them. The employer informs the representative body of the employees of the organization (branch, representative office, other separate structural unit) about the decision taken in writing within three working days from the date of receipt of the employees' request. Representatives of the employer (association of employers) are obliged to take into consideration the requirements of trade unions (their associations) sent to them and inform the trade unions (their associations) of the decision taken within one month from the date of receipt of these requirements (Article 400 of the Labor Code of the Russian Federation).
The procedure for resolving a collective labor dispute consists of the following stages:
- consideration of a collective labor dispute by a conciliation commission;
- consideration of a collective labor dispute with the participation of a mediator and (or) in labor arbitration.
Consideration of a collective labor dispute conciliation commission is a mandatory step. If no agreement is reached in the conciliation commission, the parties to the collective labor dispute proceed to the consideration of the collective labor dispute with the participation of a mediator and (or) in labor arbitration. Each of the parties to a collective labor dispute, at any time after the start of this dispute, has the right to apply to the Service for the Settlement of Collective Labor Disputes for notification registration of the dispute.
Neither side collective labor dispute is not entitled to evade participation in conciliation procedures. The representatives of the parties, the conciliation commission, mediator, labor arbitration, the specified Service are obliged to use all the possibilities provided for by law to resolve the labor dispute that has arisen.
Conciliation procedures are carried out within the time limits stipulated by the Labor Code of the Russian Federation. If necessary, the terms provided for the conduct of conciliation procedures may be extended by agreement of the parties to the collective labor dispute.
If conciliation procedures did not lead to the resolution of the collective labor dispute, or the employer evades conciliation procedures, does not comply with the agreement reached in the course of resolving the collective labor dispute, then the employees or their representatives have the right to start organizing a strike. Participation in a strike is voluntary. No one may be forced to participate or refuse to participate in a strike. Persons forcing employees to participate or refuse to participate in a strike shall bear disciplinary, administrative, criminal liability in accordance with the procedure established by the Labor Code of the Russian Federation, other federal laws.
Employer Representatives not entitled to organize a strike and take part in it. The decision to declare a strike is made by the general meeting (conference) of employees of the organization (branch, subdivision, other separate structural unit) at the suggestion of the representative body of employees previously authorized by employees to resolve a collective labor dispute. The decision to declare a strike, adopted by a trade union (association of trade unions), is approved for each organization by a meeting (conference) of employees of this organization.
Meeting (conference) of employees is considered eligible if it is attended by at least two thirds of the total number of employees (conference delegates). The decision is considered adopted if at least half of the employees present at the meeting (conference) voted for it. If it is impossible to hold a meeting (convening a conference) of workers, the representative body of workers has the right to approve its decision by collecting the signatures of more than half of the workers in support of the strike.
After five calendar days of work The conciliation commission may be declared a one-hour warning strike, about which the employer must be notified in writing no later than three working days in advance. When conducting a warning strike, the body that leads it provides the minimum necessary work (services) in accordance with the Labor Code of the Russian Federation.
The employer must be notified in writing of the start of the forthcoming strike no later than ten calendar days in advance.
The decision to declare a strike shall specify:
- a list of disagreements between the parties to the collective labor dispute, which are the basis for declaring and holding a strike;
- the date and time of the start of the strike, its expected duration and the expected number of participants;
- the name of the body leading the strike, the composition of the representatives of employees authorized to participate in conciliation procedures;
- proposals for the minimum necessary work (services) performed in an organization, branch, representative office, other separate structural unit during the strike.
- The employer warns about the forthcoming strike to the Service for Settlement of Collective Labor Disputes.
In accordance with Art. 55 of the Constitution of the Russian Federation are illegal and strikes are not allowed: - during periods of introduction of martial law or a state of emergency or special measures in accordance with the legislation on a state of emergency; in the bodies and organizations of the Armed Forces of the Russian Federation, other military, paramilitary and other formations and organizations in charge of ensuring the defense of the country, state security, rescue, search and rescue, firefighting, prevention or liquidation natural Disasters and emergencies; in law enforcement agencies; in organizations that directly serve dangerous species production or equipment, at stations of emergency and emergency medical care;
- in organizations related to ensuring the life of the population (energy supply, heating and heat supply, water supply, gas supply, aviation, rail and water transport, communications, hospitals), in the event that strikes pose a threat to the defense of the country and state security, life and health of people .
Strike if available of a collective labor dispute is illegal if it was declared without taking into account the terms, procedures and requirements provided for by the Labor Code of the Russian Federation.
The decision to recognize a strike as illegal is made by the supreme courts of the republics, regional and regional courts, courts of cities of federal significance, courts of an autonomous region and autonomous districts upon the application of an employer or a prosecutor.
The decision of the court is brought to information of workers through the body leading the strike, which is obliged to immediately inform the strike participants about the court decision. The court decision on the recognition of the strike as illegal, which has entered into legal force, is subject to immediate execution. Employees must end their strike and return to work no later than next day after serving a copy of the said court decision to the body leading the strike (Article 413 of the Labor Code of the Russian Federation).
In the event of an imminent threat life or health of people, the court has the right to postpone a strike that has not begun for a period of up to 30 days, and to suspend a strike that has begun for the same period. In cases of particular importance for ensuring the vital interests of the Russian Federation or its individual territories, the Government of the Russian Federation has the right to suspend the strike until the issue is resolved by the appropriate court, but not more than for ten calendar days.
Right to strike may be limited by federal law. The participation of an employee in a strike cannot be considered as a violation of labor discipline and grounds for terminating an employment contract, except in cases of failure to fulfill the obligation to end the strike (Article 414 of the Labor Code of the Russian Federation). It is forbidden to apply disciplinary measures to workers participating in a strike, except for the cases provided for in Part 6 of Art. 413 of the Labor Code of the Russian Federation.
During the strike the employees participating in it retain their place of work and position. The employer has the right not to pay wages to employees during their participation in the strike, with the exception of employees engaged in the performance of the mandatory minimum of work (services). A collective agreement, agreement or agreements reached in the course of resolving a collective labor dispute may provide for compensation payments to workers participating in a strike.
Workers not on strike, but in connection with its implementation, who was not able to perform his work and declared in writing about the beginning of downtime in connection with this, payment for downtime through no fault of the employee is made in the manner and in the amount provided for by the Labor Code of the Russian Federation. The employer has the right to transfer these employees to another job in the manner prescribed by the Labor Code of the Russian Federation.
collective agreement, an agreement or agreements reached in the course of resolving a collective labor dispute, a more preferential procedure for payments to employees who do not participate in a strike may be provided for than provided for by the Labor Code of the Russian Federation. In the process of settling a collective labor dispute, including holding a strike, a lockout is prohibited - the dismissal of employees at the initiative of the employer in connection with their participation in a collective labor dispute or strike (Article 415 of the Labor Code of the Russian Federation).
Actions of the parties to a collective labor dispute, agreements and recommendations adopted in connection with the resolution of this dispute are drawn up in minutes by representatives of the parties to the collective labor dispute, conciliation bodies, the body leading the strike (Article 418 of the Labor Code of the Russian Federation).
Labor disputes should be understood as disagreements arising over the application of labor legislation, the establishment or change of working conditions. These disputes are resolved in the manner prescribed by law.
All labor disputes are divided into individual and collective.
Individual labor disputes - labor disputes arising between an employee and the administration of an enterprise, institution, organization on the application of legislative and other regulatory acts on labor, a collective agreement and other labor agreements, as well as an employment contract (contract).
Collective labor disputes.
The subject of a collective labor dispute is the legitimate interests and rights of the labor collective or collectives of two or more enterprises, institutions, organizations. The reason for such disputes may be disagreements on the issues of changing production rates, piece rates, the establishment of wage systems, working hours, holidays, labor protection, etc.
Principles of consideration of labor disputes KTS
The equal right of all employees to protect their interests.
Speed of consideration.
Publicity.
Availability of appeals to labor dispute resolution bodies.
Trade union establishment.
Collectivity.
Free review.
Guaranteed execution of decisions.
Consideration of disputes in strict accordance with existing legislation.
Labor disputes are considered:
commissions on labor disputes;
district (city) courts.
The Labor Disputes Commission is the primary body for the consideration of labor disputes arising at enterprises, institutions, organizations (subdivisions), with the exception of disputes for which a different procedure for their consideration has been established.
A labor dispute is subject to consideration by the CCC if the employee, on his own or with the participation of the trade union organization representing him, has not settled the differences in direct negotiations with the administration.
In accordance with the current legislation, an employee can apply to the CCC within three months from the day when he learned or should have learned about the violation of his right. And CCC is obliged to consider the dispute within ten days from the date of filing the application. The CCC makes decisions by a majority vote of the committee members present at the meeting.
Organization of commissions on labor disputes
The commission on labor disputes is an elected body of the labor collective, elected by its general meeting (conference). The general meeting (conference) decides how many members of the KTS should be elected and for how long. And also secretly or openly hold elections of the CCC. Employees who received the majority of votes and for whom more than half of the members of the labor collective present at the meeting, and at the conference - of the conference delegates present, are considered elected to the CCC (including the CCC of the subdivision).
The management of the KTS, i.e. its chairman, deputies and secretary are elected by the already elected members of the CCC at its first organizational meeting.
Competence of the commission on labor disputes
The competence of the CCC is the legal sphere of its activity, reflecting its various functions in the field of labor disputes. The CCC is a mandatory primary body for the consideration of all labor disputes arising from an employment legal relationship on the application of labor legislation, except for those for which a different procedure for their consideration is established.
Deadline for applying to the labor dispute committee
The term for applying to the KTS is a claim or limitation period, as a period of time established by law for applying to a jurisdictional body for the protection of a violated (according to the plaintiff) right or legitimate interest.
An employee always addresses the CCC with a labor dispute. The administration is not given such a right by law.
The claim period for an employee to apply to the CCC with a labor dispute is three months from the day when he learned or should have learned about the violation of his rights.
Missing the claim period for applying to the CCC without good reason entails for the employee the loss of the right to protect his right to the CCC. Therefore, the claim period is considered as a material period for the implementation of the protection of the labor rights of the employee. And skipping it without good reason entails the adoption of a decision by the CCC to dismiss the claim for missing the statute of limitations. KTS cannot refuse to accept an application for a labor dispute due to a missed limitation period. Only at its meeting the CCC finds out the reason for this omission. She can restore the claim. If the reason for his omission was valid, and consider the dispute on the merits.
All applications of employees to the KTS must be registered in the register of their registration by an employee allocated by the administration for the organizational and technical maintenance of the KTS. This journal indicates the deadline for receipt of a labor dispute. What is the dispute about and the term for the decision of the CCC on this dispute.
The procedure for considering a labor dispute in the commission
Article 386 of the Labor Code of the Russian Federation contains the main provisions on the dispute resolution process. The CCC may sit on this dispute more than once, interrupted to clarify additional issues, evidence, etc.
The presence of the representative - the administration and the employee who submitted the application at the meeting is obligatory. An absentee consideration of a labor dispute is possible only upon a written application of the employee. He may indicate in the application on the dispute that he asks to consider the dispute in his absence. If the employee fails to appear for the second time without good reason at the meeting of the commission, then the CCC may decide to withdraw his application from consideration. But this does not deprive the employee of the right to re-apply for the dispute, if the three-month claim period has not been missed.
The CCC meeting is held at a non-working time convenient for the employee concerned, he and the administration are notified in advance of the time for the consideration of the labor dispute. A representative of the administration must be present to express the opinion of the administration on the requirement of the worker. The procedure for consideration of labor disputes in the CCC is exceptionally democratic. The case must be prepared for the meeting in an appropriate manner by the chairman of the CCC or, on his behalf, by a member of the CCC: the necessary witnesses in the case are called, if necessary, a technical or accounting check is carried out by the relevant specialists and the necessary documents and calculations are requested from the administration, and it is obliged to submit them upon request KTS.
The law does not precisely define the procedure for holding a CCC meeting. But he determined that the meeting of the CCC is competent to resolve the dispute if at least half of the members elected to its composition are present. This does not count members who retired due to death or dismissed.
The commission resolves the dispute by conferring and voting directly in the meeting room in the presence of the employee and other persons. This ensures "wide publicity and public control over the work of the CCC. A copy of the minutes of the CCC meeting is usually posted for general familiarization of members of the labor collective.
The procedure for making decisions on labor disputes
The decision of the CCC is considered adopted if the majority of the members of the commission present at the meeting voted for it (voting open). The minutes of the CCC meeting shall be signed by all members of the commission present at the meeting. Including those who voted against this decision.
At the same time, a member of the commission who does not agree with the decision of the majority, signing the protocol, has the right to express his dissenting opinion in it.
The three-day period for handing over copies of the CCC decision to the employee and the administration is the procedural period established by law. Only after receiving such a copy of the decision of the CCC, any of the disputing parties can appeal it to the court.
The decision of the commission on labor disputes may be appealed by the interested employee or the administration to the district (city) court within ten days from the date of delivery of copies of the decision of the commission to them. Missing the specified period is not grounds for refusing to accept the application, recognizing the reasons for the omission as valid, the court may restore this period and consider this dispute on the merits.
Execution of the decision of the commission on labor disputes
The decision of the CCC must be executed by the administration on a voluntary basis within three days after the expiration of the ten-day period for appealing it, if it has not been appealed within this period.
The decision of the CCC on the reinstatement of an illegally transferred employee must be executed by the administration immediately, that is, on the second day after the decision of the CCC, the administration is obliged to issue an order to reinstate him at work and allow him to his previous job, even if she appealed the decision of the CCC to the court.
Labor disputes considered in district (city) courts
Article 391 of the Labor Code of the Russian Federation provides for the jurisdiction of labor disputes to the court. There are two types of labor disputes. The first part provides for an appeal to the court of decisions of the CCC by an employee, administration or the relevant trade union committee that protects the interests of an employee who is a member of this trade union, as well as a prosecutor who considers the decision of the CCC unlawful. Thus, here the court accepts the labor dispute for consideration, which has passed the pre-trial stage of its resolution.
The second group of labor disputes considered by the court are disputes directly (that is, without consideration by the CCC) subordinate to the court.
The following labor disputes are considered directly in court without applying to the CCC:
at the request of employees of those small industries where CCCs are not elected or where for some reason they have not been created;
at the request of a dismissed employee to be reinstated at work, regardless of the grounds for termination of the employment contract, to change the date and wording of the reason for dismissal, to pay for involuntary absenteeism, with the exception of disputes on these issues by executive employees and others specified in the CT of the Russian Federation, as well as federal civil servants. Thus, the law provides for direct judicial protection of the right to work upon dismissal of all employees, except for the above persons. Disputes of selected employees about early release from office by decision of the bodies that elected them;
at the request of the administration for compensation by the employee for material damage caused to the enterprise, institution of the organization.
Disputes about unreasonable refusal to hire upon application are also resolved directly in court:
a person invited to work in the order of transfer from another enterprise, institution, organization;
a young specialist sent after the completion of vocational training in accordance with the established procedure to this production;
another person with whom the administration, in accordance with the law, was obliged to conclude an employment contract, sent, for example, by the employment service at the expense of the quota for accepting a disabled person or a teenager established by this employer;
a pregnant woman or a woman with children under the age of three, a single mother? children under 14 years of age (disabled child under 16 years of age) in case of refusal of admission on the grounds of motherhood.
The court also directly considers all labor disputes on compensation by the employer for harm caused to the employee in connection with. injury or other damage to health at work. If the victim does not agree with the decision of the administration on his statement about this or did not receive the employer's response to his statement within the established 10-day period.
Terms of applying for resolution of a labor dispute to a district (city) court
An application for resolving a labor dispute is submitted to the district (city) court within three months from the day when the employee learned or should have learned about the violation of his right, and in cases of dismissal - within three months from the date of delivery of a copy of the dismissal order or from the date of issuance work book.
These terms are shorter in comparison with other civil cases considered in court, which reflects one of the basic principles of the procedure for considering labor disputes - the speed of resolving these disputes.
The procedure for consideration of collective labor disputes (conflicts)
Collective labor disputes (conflicts) arising between the administration of an enterprise, institution, organization and the labor collective (subdivision team) or trade union on the issues of establishing new or changing existing working and living conditions, concluding and executing collective agreements and other agreements are considered in accordance with the legislation on procedure for resolving collective labor disputes (conflicts).
Collective labor disputes are unresolved disagreements between employees and employers (hereinafter referred to as the parties) regarding the establishment and change of working conditions (including wages). Conclusions, changes and implementation of collective agreements, agreements on issues of social and labor agreements.
Employees at their general meeting (conference) put forward and formulate demands in writing, accepting them by a majority vote. At the same time, they elect their authorized representatives to participate in the resolution of a collective labor dispute.
When putting forward the same requirements by different representatives of employees, they have the right to create a single body to participate in the resolution of a collective labor dispute.
The employer, having received the demands of the employees in writing, is obliged to consider them and inform the representative of the employees of his decision in writing within three working days from the date of receipt of the requirements.
If the employer satisfies the requirements of the employees, then the disagreements are considered settled and there is no collective dispute.
If the employer completely or partially rejects the demands of employees, then a collective labor dispute may already arise.
The moment of the beginning of a collective labor dispute is the day when the employer's decision to reject all or part of the workers' claims or the employer's failure to communicate its decision on the claims within the prescribed period of three working days is announced, as well as the date the protocol of disagreements was drawn up during collective negotiations.
A collective dispute is resolved, as a rule, by conciliation procedures. They are the consideration of a collective labor dispute with the aim of resolving it by a conciliation commission, parties with the participation of an intermediary, in labor arbitration.
Representatives of employees are bodies of professional trade unions and their associations authorized to represent in accordance with their charters, as well as bodies of public amateur performance formed at a meeting (conference) of employees of an organization, branch, representative office and authorized by them.
Representatives of employers are the heads of organizations or other persons authorized in accordance with the charter of the organization, other legal acts, as well as the authorized bodies of associations of employers or other bodies authorized by employers.
Consideration of a collective dispute that has arisen begins with a conciliation commission. It is created within three working days from the moment the collective labor dispute begins from the representatives of the parties, and according to their role in making the decision of the commission. The dispute must be considered by it within a period of up to five working days from the date of issuance of the order on its creation. The employer has no right to evade the creation of a conciliation commission and participation in its work.
The decision of the conciliation commission is made if there is an agreement on it by the disputing parties, and not by voting. It is drawn up by the minutes of the commission and is binding on the parties, and is executed in the manner and within the time period established by the decision.
If the parties do not reach an agreement in the conciliation commission, they continue the conciliation procedures with the participation of a mediator. This is the second stage of consideration of a collective labor dispute, when it is not resolved in the conciliation commission. But the parties can agree to resolve the dispute not with an intermediary, but in labor arbitration immediately.
The mediator is invited by agreement of the parties on the recommendation of the Collective Dispute Resolution Service or independently of it. If the parties, within up to three working days from the moment of applying for an intermediary to the Service, do not reach an agreement on the candidacy of the mediator, then he is appointed by the Service.
The very procedure for considering a dispute with the participation of a mediator is determined by the mediator by agreement with the disputing parties. And the term for its consideration is up to seven calendar days from the moment of invitation (appointment) of the intermediary. Its consideration ends with the adoption of an agreed decision in writing or the preparation of a protocol of disagreements, if an agreed decision has not been made.
Labor arbitration? This is a temporary body for the consideration of a collective labor dispute. It is created by the disputing parties and the Service, but from third parties? three labor arbitrators recommended by the Service or proposed by the parties themselves. It is created no later than three working days from the end of the consideration of the dispute by the conciliation commission or mediator.
Representatives of the parties cannot be members of the labor arbitration, but it considers the dispute with the participation of representatives of the parties within up to five working days from the date of its creation.
Labor arbitration ends the consideration of the dispute with the development of recommendations in writing, which are transmitted by the parties and are binding on them if the parties have concluded an agreement on this in writing.
The law provided for the rights and obligations of the state body that facilitates the resolution of a collective labor dispute by organizing conciliation procedures and participating in them - the Service for the Settlement of Collective Labor Disputes with its local bodies (hereinafter referred to as the Service).
forms a list of mediators and labor arbitrators and trains them how to resolve collective labor disputes;
checks, if necessary, the powers of the parties to the collective labor dispute;
carries out notification registration of collective labor disputes upon notification of employers;
identifies and summarizes the causes and conditions for the emergence of collective labor disputes, prepares proposals for their elimination;
provides methodological assistance to the parties at all stages of resolving collective labor disputes;
organizes the financing of conciliation procedures, i.e. payment of intermediaries, labor arbitrators;
organizes work on the settlement of collective labor disputes.
The law established guarantees for members of the conciliation commission, mediators, labor arbitrators for the time of their participation in the resolution of a collective labor dispute: they are released for this time from their main job with the preservation of average earnings for a period of a year - no more than three months, i.e. they may be released several times a year, but not more than three months in total.
During the period of resolution of a collective labor dispute, representatives of trade unions, their associations, bodies of public amateur performance (elected by the meeting, conference of workers) participating in it cannot be dismissed at the initiative of the administration, transferred to another or moved, and also subjected to disciplinary action without the prior consent of the person who authorized them to body representation. These additional special guarantees of the right to work of these workers were introduced for the first time by the Law of the Russian Federation on collective labor disputes.
The law was fixed in accordance with Art. 37 of the Constitution of the Russian Federation, the right of workers to strike under the conditions and in the manner prescribed by law.
Representatives of employers are not entitled to organize a strike and participate in a strike.
The law gave a legal definition of the concept of a strike, indicating that a strike is a temporary voluntary refusal of employees to perform their work duties (in whole or in part) in order to resolve a collective labor dispute. It can be only after attempts by peaceful procedures to solve it. If conciliation procedures have not led to the resolution of the dispute or the employer evades conciliation procedures, does not comply with an agreement on a collective labor dispute, employees have the right to use meetings, rallies, demonstrations, picketing, including the right to strike.
Participation in a strike is voluntary and no one can be forced to participate or refuse to participate in a strike, otherwise the persons who force it to do so bear disciplinary, administrative and criminal liability.
A strike may be declared only by decision of a meeting (conference) of production workers (branch, representative office) or by decision of a trade union organization, association of trade unions.
The assembly (conference) has the right to take such a decision on a strike. When it is attended by at least two thirds of the total number of employees, members of the trade union organization (conference delegates). This decision is made if at least half of those present at the meeting (conference) voted for it. The meeting (conference) elects the body leading the strike. This body warns the employer about the beginning of the strike in writing no later than ten calendar days, indicating in the warning the date and time of the strike, its duration, and the number of participants.
The law also provided for another type of strike - a warning watch. It can be announced once after five calendar days of work of the conciliation commission. The employer must also be notified in writing about it, but no later than three working days in advance. The employer warns the Service about the strike.
When conducting a strike, including a warning one, the heading body is obliged to provide a minimum of work and services.
This body has the right to suspend the strike, but when it is resumed, it is obliged to notify the employer and the Service about this no later than three working days.
The authority of the body leading the strike is terminated by the signing of an agreement on the settlement of a collective labor dispute or when the strike is declared illegal. Unless otherwise provided by the meeting (conference) of employees. For example, by electing this body, it may entrust it with control over the execution of the agreement on the dispute.
During the strike period, the disputing parties, together with the executive authority (local self-government), are obliged to ensure public order, the safety of production property, as well as the operation of machinery and equipment, the stoppage of which poses a direct threat to human life and health. In the same industries, the work of which is related to the safety of people, ensuring their health and the vital interests of society (transport, water supply, supply, ambulance, hospitals, etc.), during a strike, a minimum of necessary work (services) must be provided, which is determined by agreement of the parties together with the local government (executive) within five days from the date of the decision to declare a strike.
If this minimum necessary work (service) is not provided, then the strike may be declared illegal.
During the strike period, the parties continue to resolve the collective labor dispute through conciliation procedures.
A strike may be declared illegal by a court of a subject of the Russian Federation (republic, territory, region, etc.) at the request of the employer or the prosecutor.
The decision of the court to recognize the strike as illegal is communicated to the body leading the strike, which is obliged to immediately inform the workers about this and they must start work the next day.
Strikes that create a real threat to the foundations of the constitutional order and the health of others are illegal; employees of the Armed Forces of the Russian Federation, law enforcement, bodies of the Federal Security Service - if this creates a threat to the defense of the country and the security of the state.
The state of emergency law may restrict the right to strike.
Legislation on the Federal public service and on the tax police, these workers are prohibited from calling strikes and taking part in strikes.
Postponing a strike that has not begun, and a strike that has begun, can be suspended by a court for up to 30 days in the event of an immediate threat to the life and health of people, for example, a strike of medical workers during an epidemic.
The President of the Russian Federation and the Government of Russia have the right to suspend the strike until the issue is resolved by the relevant court, but for no more than ten calendar days.
If a strike cannot be held in the cases specified by law, then the decision on a collective labor dispute is made by the President of the Russian Federation within 10 days.
The law is enshrined in Art. 18 certain legal status of workers in connection with the strike and the guarantee of their right to work. Thus, participation in a strike is not a violation of labor discipline and a ground for terminating an employment contract, except in cases of continuation of a strike recognized by a court decision that has entered into force as illegal, or a delayed or suspended strike.
For the duration of the strike, the place of work and position are retained for the duration of the strike, and the employer has the right not to pay wages to them during this time.
Non-strike workers continue to work and receive; wages, and if they cannot work because of a strike, they are paid downtime through no fault of theirs, i.e. not less than two thirds of their tariff rate.
A collective agreement, a social partnership agreement or an agreement reached on a collective labor dispute may provide for compensation payments to strike participants.
The Law of the Russian Federation of 20.X.1995 in chapter 4 provided for liability for violation of the legislation on collective labor disputes.
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