Any labor dispute does not arise out of nothing, it has a reason. Analysis and correct understanding of the phenomena that led to the labor conflict contribute to the rapid and high-quality resolution of disagreements, reducing tension in the team.
Labor disputes
The legislation does not contain a formal explanation of the term "labor dispute". Based on the general content of the norms Labor Code, such disputes include any contradictions between the employer and subordinates, which: a) arose from labor relations; b) submitted for consideration to the authorized body.
The emergence and development of the dispute
Each phenomenon develops in a certain dynamics, the labor dispute is no exception. The main stages of a dispute over labor relations are:
- fact, event, action, inaction (issuance of an order, non-payment of wages, and so on);
- its subjective assessment by the participants - disagreements;
- negotiations - an attempt to resolve disagreements without the participation of a third party;
- referral of the dispute to an advising jurisdictional body for the resolution of an already labor dispute.
The stage of negotiations is not always pronounced. The law does not establish any formal requirements for conducting preliminary negotiations in the event of an individual dispute. You can appeal the order without sending a pre-trial warning to the administration. Conducting conciliation procedures (negotiations) is mandatory only for the settlement of collective disputes.
Types of labor disputes
The Labor Code classifies labor disputes according to the subjective composition of participants into individual and collective. The former affect the interests of a particular employee, the latter - a group of employees united by common interests.
Regardless of the composition of the participants, the grounds for the emergence of a production dispute are basically the same - improper performance by one of the parties labor rights silt and norms. Collective disputes are not always associated with violation of mandatory requirements, often the subject of negotiations between the administration and employees is the specification of their rights and obligations under the current legislation.
If the consequences of the violation affect the interests of an individual employee, the dispute is resolved on an individual basis by a special commission or court. Infringement of the rights of the labor collective leads to the need for conciliation procedures.
The decision on an individual dispute is binding on the individual employee who is a party to the conflict. The compromise reached between the administration of the enterprise and the representatives of the workers acquires a universal character, the agreements reached apply to all employees, regardless of their personal opinion.
The Labor Code calls the grounds for the emergence of an individual dispute the existence of disagreements over the execution of:
- labor legislation;
- industry and collective agreements;
- normative documents of the enterprise;
- employment contract.
A collective dispute, according to the code, arises over:
- working conditions: introduction of new ones, changes in old ones;
- remuneration terms
- conclusions, changes and implementation of sectoral and collective agreements;
- ignoring the position of the trade union when taking orders.
The ratio of individual and collective disputes
Often the cause of a collective dispute is the accumulated unresolved issues individual workers. The unwillingness or inability of the administration to meet the personal requirements of employees, force the latter to unite and solve the problem collectively. For example, in the first place among the causes of collective disputes is the delay in wages. Non-payment of remuneration gives the employee the right to bring a claim against the enterprise and obtain compulsion to fulfill the obligation through the court, resort to the help of bailiffs, that is, initiate an individual labor dispute. Mass Violation(delay in paying the whole plant) leads to a collective dispute, often using strikes. At the same time, individual disputes that have arisen do not stop; in the course of conciliation procedures, a solution can be reached that can only resolve collective claims. Each employee can continue the protection of personal rights independently.
Causes of labor disputes
In many ways, the specific causes of individual or collective disputes coincide, but at the same time, due to the difference in the subjective composition, they differ. In general, considering the problem of disputes between participants in a labor partnership, two categories are distinguished:
- objective reasons;
- subjective reasons.
Objective causes explain the general patterns of industrial conflicts arising from contradictions in property relations, wage labor, and others. Despite the declared social partnership, the interests of its participants are largely opposite. Employees are primarily interested in jobs and maximum wages. The owners of the enterprise - in increasing its profitability and minimizing costs. Different goals and attitudes towards the enterprise create an irreducible conflict of interests - a cause that, under certain conditions, will lead to a conflict. The decision of the owner to reduce wages will never be received positively by the workers. Demanding workers to raise wages will never cause enthusiasm among business owners.
Subjective reasons are not due to general patterns public relations, but by the actions of their participants, erroneous or deliberately illegal.
Conditions of occurrence
The causes of conflict in the enterprise are distinguished from the circumstances that contribute to its occurrence. The conditions for the emergence of conflicts between employees and the administration are divided into 3 groups:
- social;
- economic;
- legal.
Change financial condition enterprises can encourage the employer to lower salaries, decide to change working conditions, and others that will lead to a dispute with employees. Legal illiteracy, inconsistency of norms and gaps in legislation create conditions for different understanding of the rights and obligations by the parties, interpretation of the law. Adverse social conditions, for example, low salary, lead to dissatisfaction of workers, resulting in a labor dispute.
Reasons for disagreement
Disagreements are often caused by the unequal understanding of the employee and the employer, their different assessment of the conditions for exercising a subjective right or fulfilling a specific obligation, expressed in the actions or inaction of the employee (breach of discipline, failure to comply with orders, etc.) or the administrative apparatus (illegal compulsion to work, non-payment of remuneration, etc.). ). The irrational, unmotivated and unreasonable desire of an employee to beat out personal working conditions for himself, to challenge the lawful actions of the administration, also lead to a labor conflict.
The reasons for the emergence of a collective dispute in an enterprise are often common problems of the team:
- working conditions that do not meet mandatory requirements sanitation and safety;
- insufficient level of organization of work and production;
- shortcomings of the system for determining the amount of remuneration of employees;
- other negative and unfavorable circumstances.
The main causes of disputes in 2017
The main reasons for the emergence of collective disagreements about working conditions in the first half of 2017 were.
§ 1. Concept and reasons labor disputes
In the event of the emergence or termination of labor relations, as well as in the course of their action, disagreements often arise between employees and employers. The reason for their occurrence is, as a rule, a violation of existing legislation.
However, not every disagreement develops into a legal dispute. Participants in relations regulated by labor law can resolve their conflict voluntarily, peacefully, through negotiations and prevent the transition of disagreements that arise between them to the stage of a labor dispute.
In addition, purely psychological factors cannot be ignored. Thus, the majority of employees, despite their dissatisfaction with the unlawful actions of the employer, still avoid applying to the competent authorities for the protection of their rights, fearing negative consequences for themselves.
But if the conflict is not resolved by its participants and there is a need to involve special authorized bodies in its resolution, then it develops into a labor dispute.
Thus, labor disputes are disagreements between the employee (employees) and the employer on the establishment and application of the current norms of labor and other social legislation, which were not settled during direct negotiations with the employer and became the subject of proceedings in specially authorized bodies .
The term "labor disputes" appeared only in 1971 in the then adopted third Labor Code of the RSFSR. Its chapter XIV was called "Labor disputes". The first two Labor Codes of Russia (1918 and 1922) used the term "labor conflicts". An independent branch of labor law, which has developed in many Western countries, especially in the post-war years - in some it is called social law (for example, in France), as well as international legal regulation of labor (which many scientists call international labor law), more and more departs from the term "labor conflict" and uses the term "labor dispute". And this is correct, since the conflict from the point of view of philosophy is an insoluble contradiction that threatens to explode (in labor relations - strike, strike And modern labor law provides mainly conciliatory conciliation procedures for resolving labor disputes. The current Labor Code of the Russian Federation of 2001 retains the term "labor disputes" And does not at all provide for the old term "labor conflict". a conflict situation that may arise before a labor dispute in case of disagreement of the parties on a particular labor issue.
The point of view expressed in the literature is that the conflict precedes the labor dispute. This point of view confused the conflict situation with a labor dispute resolved by a jurisdictional body.
The concept of labor disputes must be distinguished from the disagreements of the parties that preceded them, as well as from a labor offense, which is a direct cause for disagreement and one of the steps in the dynamics of a labor dispute.
The emergence of labor disputes, as a rule, is preceded by violations of labor or other social rights of employees in the field of labor or other relations, which are the immediate cause (cause) of the dispute.
A labor offense is a guilty failure to perform or improper performance by an obligated subject of his labor duties in the field of labor and distribution, and, consequently, a violation of the right of another subject of this legal relationship.
Labor offenses in themselves are not yet labor disputes. The same action can be evaluated by each side in its own way. The discrepancy in assessments is a disagreement. This disagreement can be resolved by the worker on his own or with the participation of the trade union committee representing his interests in direct negotiations with the administration. Unfortunately, the legislator has not established the procedure for resolving these disagreements by the disputing parties in individual labor disputes, as he did, for example, in collective labor disputes in Art. 399 and 400 of the Labor Code of the Russian Federation.
However, another situation is also possible when a disagreement between the subjects of labor law can develop into a labor dispute if it is not settled by the parties themselves, but submitted to the jurisdictional body, in other words, one party disputes the action (inaction) of the obligated party that violated its labor law .
The conditions for the emergence of disputes are those conditions, circumstances that directly or indirectly affect labor Relations, causing unsettled disagreements between employees and management. The reason for the emergence of labor disputes are legal facts that directly caused disagreements between the employee (employees) and the administration. Even the reasons common for labor disputes are of a specific nature in a specific legal relationship to resolve a labor dispute. These are violations of certain rights of an employee or non-compliance with his obligations to the enterprise (for example, when he is financially liable for the damage caused).
The conditions for the emergence of a labor dispute become the cause of the latter. For example, ignorance of the head of the organization of labor legislation or neglect of it leads to a violation of the rights of the employee and the emergence of an individual labor dispute. Often labor disputes arise as a result of a combination of several conditions (reasons). Some of them are economic, others are social, others are legal.
So, for example, economic conditions are the financial difficulties of organizations that prevent the full and timely payment of wages, the provision of guarantees and benefits due to employees (milk at work in unhealthy conditions, therapeutic and preventive nutrition, etc.) , lack or insufficiency of funds for labor protection.
The conditions for the emergence of disputes of an economic nature give rise to serious social consequences, which, in turn or in combination with economic consequences, give rise to labor disputes. Thus, a lack of funds leads to a reduction in the number of employees or the liquidation of an organization, to growing unemployment. The released workers, defending their right to work ( workplace), often apply for the resolution of a labor dispute and the protection of their rights to the judiciary.
The conditions of a social nature include, for example, a growing gap in the income level of low-paid and high-paid workers.
The conditions of a legal nature include, in particular, the complexity and inconsistency of labor legislation for the administration and, especially for employees, as a result - poor knowledge by employees of their labor rights and obligations of employers, ways to protect their rights; unwillingness to comply with labor legislation by many heads of organizations, officials of the administration; poor readiness of trade union leaders, trade union activists to protect workers on the basis of labor legislation.
Transition to market economy exacerbated the situation in many organizations, exacerbated the causes of labor disputes. Due to lack of funds, many organizations are forced to temporarily completely or partially stop work. A significant number of enterprises have been liquidated. Many workers were laid off. Unemployment has become ubiquitous. Differences in working conditions and in the amount of wages increased sharply. One side, minimum size wages turned out to be significantly below the subsistence minimum; on the other hand, wages are no longer limited maximum size. This was facilitated by significant changes in labor legislation that took place during last years:
1) the use of international legal acts and international legal norms in the system of labor legislation of the Russian Federation;
2) differentiation of powers between federal authorities state authorities and public authorities of the constituent entities of the Russian Federation in the field of labor relations, i.e. the possibility of regulating labor relations by the authorities of the constituent entities of the Russian Federation;
3) expansion of local regulation, as well as the establishment of working conditions through individual labor contracts; weakening of the centralized way of regulating labor relations;
Trade unions, intended by law to represent the interests of workers and protect their rights, do not always actively and effectively contribute to resolving disagreements between workers and the administration, do not use all the means at their disposal for this purpose.
The weakening of supervision and control over compliance with labor laws also played a negative role. Creation of new state bodies for supervision and control over compliance with labor legislation - the State Labor Inspectorate (according to Decree of the President of the Russian Federation of March 9, 2004 No. 314 Ministry of Labor and social development Russian Federation is abolished after the entry into force of the relevant federal law; the functions of adopting normative legal acts are transferred to the formed Ministry of Health and Social Development of the Russian Federation, the functions of control and supervision and the functions of providing public services - Federal Service on labor and employment), etc. - is accompanied by the withdrawal from the competence of the labor inspectorate, which is under the jurisdiction of trade unions, of state power (issuance of binding orders, imposition of fines). As a result, the number of violations of workers' labor rights has sharply increased, and the legal responsibility of administrative officials for such violations has decreased.
To eliminate the causes of labor disputes, means and methods should be used that affect each of them and in a complex manner. However, even if all necessary measures will be accepted, it is unrealistic to completely eliminate the causes of labor disputes. Labor disputes will not disappear. Their total number may decrease. There may not be disputes on some specific issues, the causes of which are completely eliminated. Disputes may arise on other issues that did not exist before. Therefore, labor disputes will exist for the foreseeable future.
§ 2. Classification of labor disputes
Finding out the type of labor dispute helps to correctly determine its initial jurisdiction and the procedure for its resolution.
All labor disputes can be classified into types on the following three grounds:
1) for the disputing subject:
a) individual
b) collective;
2) by the nature of the dispute;
3) by the type of disputed legal relationship.
For example, disputes about transfer, promotion of an employee's qualification level, dismissal, etc. are individual, and disputes of a trade union committee or labor collective with an employer, its administration that arise when concluding a collective agreement, when approving bonus provisions or other local regulations , are disputes of collective significance.
An individual labor dispute differs from a collective one (Article 398 of the Labor Code) both in its subjective composition and in the content of the subject of the dispute. In individual disputes, the subjective rights of a particular employee, his legitimate interest are contested and protected. In collective disputes, the rights, powers and interests of the entire labor collective (or part of it), the rights of the trade union committee as a representative of workers in a given production on issues of labor, life, and culture are contested and protected. In collective disputes, the powers of labor collectives, their vital interests, are also protected from the willful dictates of the administrative apparatus, including ministries, departments as the higher management body of this labor collective.
Collective disputes can arise from three legal relations: the legal relations of the labor collective with the employer, its administration, including the higher management body, and from the legal relations of the trade union committee with the administration, as well as new social partnership legal relations that have appeared in recent years between representatives of workers and employers with the participation of bodies executive power at the federal, regional, territorial and sectoral levels. Therefore, collective disputes are divided according to the subject into disputes between the labor collective and the employer and disputes between the trade union committee and the employer, and at the four higher levels indicated, where the disputing subjects are different, there are also disputes over partnership agreements.
Labor disputes and the procedure for resolving them are one of the most important forms of self-defense by an employee (employees) of their labor rights and interests, because without their initiative to apply to a jurisdictional body for resolving disagreements not resolved by the parties themselves, a labor dispute will not arise, and this form must be expressly stated in Art. 379 of the Labor Code of the Russian Federation in accordance with Art. 45 of the Constitution of the Russian Federation and art. 21 of the Labor Code, providing for the right of everyone to protect their labor rights and legitimate interests in all ways not prohibited by law.
Thus, according to the nature of the dispute, all labor disputes are subdivided into two types:
1) disputes about the application of the norms of labor legislation established by it, collective or labor contracts, agreements of rights and obligations. Such disputes can arise from all legal relations in the sphere of labor law, i.e. both from labor and from all other derivatives of them. In such disputes, the violated right of an employee or trade union committee or the authority of the labor collective is protected and restored. These are disputes about rights, and their absolute majority among individual labor disputes;
2) disputes about legitimate interests, i.e. on the establishment of new or changes in existing socio-economic conditions of work and life, not regulated by law. Disputes of this type may arise from an employment relationship - on the local establishment of new working conditions for an employee (a new vacation period according to a vacation schedule, a new tariff category); and from all legal relations (social partnership) of a collective organizational and managerial nature.
The Labor Code provided for a unified procedure for resolving individual labor disputes, both about labor rights and legitimate interests.
According to the legal relations from which a dispute may arise, all labor disputes are divided into disputes arising from:
1) labor relations(their absolute majority);
2) employment legal relations (for example, a disabled person not accepted by reservation or another person with whom the administration is obliged to conclude an employment contract);
3) legal relations for supervision and control over compliance with labor legislation and labor protection rules (for example, the actions of a sanitary inspector who closed the work site, a technical or legal state inspector of the State Labor Inspectorate who imposed a fine on an official, etc.) are disputed;
4) legal relations for the training of personnel and advanced training in production (for example, on the quality of training in second professions, etc.);
5) legal relations for compensation of material damage by an employee to an enterprise (for example, the size of the deduction made by the administration from wages for the damage caused is disputed);
6) legal relations for compensation by the employer of damage in connection with damage to his health at work or violation of his right to employment;
7) legal relations of the trade union with the employer on issues of labor, life, culture (for example, on the timing of the revision of production standards, the adoption by the employer of a local normative act in case of objection of the trade union);
8) legal relations of the labor collective with the employer, administration (for example, in the election and approval of economic managers, work plans);
9) social partnership legal relations.
The classification of individual labor disputes according to the indicated grounds is necessary in order to correctly determine its jurisdiction, nature and subject matter of the dispute for each labor dispute. And for this it is necessary to understand whether it is an individual or a collective dispute, about the application of labor legislation or about establishing new working conditions, changing existing ones and from what legal relationship it arose.
§ 3. Jurisdiction of labor disputes
The question of the jurisdiction of labor disputes is the definition of the form of protection of a given labor right or interest.
Proper and prompt resolution of labor disputes contributes to the protection of the labor rights of citizens and their labor collectives, the restoration of violated rights and the strengthening of law and order in the field of labor. This is also the aim of the correct definition of the jurisdiction of labor disputes, which must be checked when accepting a statement on the dispute.
The jurisdiction of labor disputes and the competence of the dispute resolution body are two closely related concepts, but they are not identical or equivalent.
The competence of the body is the legal field of activity, determined by its various functions in the field of labor disputes. Competence includes both the authority to accept a dispute for consideration, and the authority to consider disputes in compliance with a certain procedural order and make a decision on disputes, etc. Competence is characterized by a complex of its three elements: rights, duties, responsibility. The jurisdiction of disputes affects only the first of the specified powers of the body, that is, the power to accept the dispute for consideration, and it is the dispute that is subordinate to this body. The jurisdiction of the dispute is determined by law. But the law has not established, unfortunately, scientifically based criteria, why some labor disputes are under the jurisdiction of this body, while others are not. The initial jurisdiction of a labor dispute is determined by the properties and content of the dispute.
Jurisdiction is a determination by the properties and content of a labor dispute in which body this dispute should initially be resolved. Such an indicator in individual disputes is the nature of the dispute and the legal relationship from which the dispute arises, as well as in some cases the subject and object of the dispute. Therefore, when determining the jurisdiction of each specific labor dispute, one must first find out what type of dispute, i.e., individual or collective. If individual, then determine its nature: on the application of labor legislation or on the establishment of new working conditions, and then to establish from what legal relationship it follows. If you do not find out the indicated properties of a specific labor dispute, then you can incorrectly determine its jurisdiction. It should be noted that the decision on a dispute that is not under the jurisdiction of this body is subject to cancellation.
The jurisdiction of labor disputes must be distinguished from the right of citizens to complain that they bring to a higher authority in relation to the one they are complaining about. The established procedure for considering labor disputes, including their jurisdiction, does not deprive an employee of the right to apply to a higher authority or administration with a complaint about the actions (inaction) of a particular leader. For example, a dispute about the dismissal of a driver of an enterprise to reduce staff is subordinated directly to the court. But the driver can also apply to the higher administration with a complaint about illegal dismissal. And if the administration refuses to reinstate at work, and the court, resolving this dispute, restores it, then the court decision will be executed. When a labor dispute is under the jurisdiction of another body, then when an employee files a complaint with a higher administration, it is no longer resolved in the procedural form of considering a labor dispute.
The correct determination of the jurisdiction of a particular labor dispute is of great practical importance, since the resolution of the dispute by an unauthorized body has no legal force and cannot be enforced.
All individual labor disputes according to their jurisdiction to one or another body can be divided into the following four groups:
1) considered in general order when the CCC (commission for labor disputes) is the mandatory primary instance, after which the dispute can go to court. In a general order, starting with the CCC and further in court, disputes arising only from an employment relationship are considered. Disputes related to labor relations are not considered in this order, since CCC cannot resolve them;
2) considered directly by the court;
3) resolved by a higher body in a special order (then they can be decided by the court);
4) disputes with an alternative jurisdiction at the choice of the employee: in a higher authority or in court.
Collective disputes have a single jurisdiction and are considered, starting with a conciliation commission, then by a mediator and labor arbitration.
Attributing a dispute to one of these groups means at the same time that other bodies are either not authorized to consider this dispute, or can consider it only after it has passed the initial (necessary) stage of proceedings for this group of disputes. Consider each of these groups of disputes.
Individual disputes, both on the application of labor legislation and on the establishment of new conditions, are subject to the various bodies indicated above, depending on the content of the dispute and the type of legal relationship.
In a general manner, starting with the CCC, the majority of individual disputes arising from labor relations are considered, but not all. Thus, the KTS considers disputes within its jurisdiction over wages, the application of production standards and established rates, the return of amounts illegally deducted from wages and other disputes between an employee and an employer and his administration. All other disputes between the subjects of labor relations, unless otherwise provided for them, are also considered by the CCC.
A different procedure is established by law for disputes considered either directly by the court (i.e., without consideration by the CCC), or by a higher authority.
The jurisdiction of disputes on compensation for material damage is determined depending on which side of the legal relationship suffered damage. So, disputes about compensation for damage caused by an employee to an employer are considered directly in court at the suit of the employer. If the administration withheld from the employee’s wages amounts in compensation for damage, and the employee considers this illegal, then the subject of the dispute will already be illegal withholding, and it is under the jurisdiction of the CCC, where the employee applies for the return of the withheld amounts. Disputes about collective financial responsibility are resolved directly in court, since this is always full financial responsibility.
The court directly considers all disputes about compensation by the employer for harm caused to the employee in connection with his labor injury or other damage to health at work, when the employee does not agree with the decision of the employer or did not receive the employer’s response to your statement. The limitation period for these disputes does not apply.
Alternative jurisdiction of some labor disputes is jurisdiction at the choice of the employee in a higher body or in court. It appeared with the adoption of the Federal Law of 1995 on the federal public service, paragraph 2 of Art. 9 of which established such jurisdiction of labor disputes for civil servants. This can be explained by the fact that CCCs are not created in state authorities and administrations. At the same time, international standards require that the employee has the right to protest the procedure that he went through, objecting to the actions of the employer. The second category of labor disputes with alternative jurisdiction is labor disputes on compensation for harm to an employee (his family) in the event of an accident at work. With them, the victim (his family) can apply to the State Labor Inspectorate or to the court.
The Labor Code of 2001 expanded the alternative subordination of labor disputes by establishing in part seven of Art. 193 that controversy about imposing disciplinary actions on employees is considered by the body of the State Labor Inspectorate or the body for the consideration of individual labor disputes.
But the Russian legislator has not yet issued a law on the procedure for considering labor disputes by a higher body, although, as we see, it is increasingly expanding the alternative jurisdiction of labor disputes. Therefore, before the adoption of the Russian law, one should be guided here by Section IV of the Law of the USSR of March 11, 1991 "On the procedure for resolving individual labor disputes."
With the creation of the State Labor Inspectorate and its local bodies, disputes about compensation by the employer to the employee of harm in connection with an accident at work have the right to consider these bodies. And as practice shows, many victims of an accident at work apply to the State Labor Inspectorate. Therefore, we can say that here, at the choice of the injured employee (the family of the deceased), there is an alternative jurisdiction for such disputes: directly in court or first, as a pre-trial stage, in the body of the State Labor Inspectorate.
Higher authorities (higher administration) have the right and are obliged to consider any complaints received from employees about the actions of lower-standing authorities, including labor disputes subordinate to the CCC and the court. However, special federal laws have established that higher authorities consider labor disputes of judges, prosecutors, their deputies and assistants on issues of dismissal, changing the date and wording of the reason for dismissal, transfer to another job, payment forced absenteeism or performance of lower-paid work and imposition of disciplinary sanctions, certification of them.
Thus, judges' disputes according to the Federal Law of June 26, 1992 "On the Status of Judges in the Russian Federation" are considered by higher qualification boards of judges, and disputes on the termination of a judge's powers are considered by the Supreme Court of the Russian Federation. Disputes of prosecutors, their deputies and assistants, as well as investigators of the prosecutor's office on these three issues are resolved in accordance with the Federal Law of January 17, 1992 "On the Prosecutor's Office of the Russian Federation" (as amended on December 23, 1998) Prosecutor General or a prosecutor superior to the one who fired them, transferred them, or imposed a penalty. After consideration of their disputes by higher authorities, all these categories of workers have the right to apply to judicial protection.
A civil servant has the right to apply to the relevant state bodies or to the court with disputes, including on the conduct of qualification examinations and certification, their results, the content of the issued characteristics, admission to public service, its passage, translation, disciplinary responsibility, as well as those related to the violation of his rights and guarantees.
All social security disputes are an area of social security law. KTS does not solve them. For example, a dispute about the right to benefits between an employee and the social insurance commission is resolved by the trade union, and a dispute between an employee and a trade union about a ticket is resolved by a higher trade union body, and about benefits - by a social protection body.
Only higher trade union bodies have jurisdiction over disputes between administration officials and technical and legal labor inspectorates of trade unions. The actions of state inspectorates (sanitary, etc.) are appealed to their higher authority, and on the imposition of a fine - to the court at the place of residence. The decisions of the inspectors of the State Labor Inspectorate can be appealed against by the head of the State Labor Inspectorate by subordination, the Chief Inspector of the State Labor Inspectorate or in court, i.e. These are also disputes with alternative jurisdiction.
The jurisdiction of collective labor disputes is the same both on the application of labor legislation and on the establishment of new working and living conditions for workers. It is defined by the Law on Collective Labor Disputes and Chapter 61 of the Labor Code of the Russian Federation.
In case of a dispute between the council of the labor collective and the administration and if the administration disagrees with the decision of the STK, the issue is resolved at general meeting(conference) of the labor collective. The dispute between the trade union and the employer about the local establishment of new working conditions (for example, when revising new labor standards, when approving the vacation schedule, etc.) is now decided by the State Labor Inspectorate or the court (see parts four and five of Article 372 of the Labor Code ), i.e. this is the only collective labor dispute with alternative jurisdiction and the trade union can start the procedure for considering a collective dispute by a conciliation commission. It should be borne in mind that the administration is not given the right to appeal somewhere the refusal of the trade union to give consent to certain of its law enforcement actions.
It is easy to see that permanent bodies are called upon to resolve labor disputes in accordance with Russian legislation.
This is a national system of specialized bodies for the resolution of labor disputes. We do not include in it the Constitutional Court of the Russian Federation and the constitutional (charter) courts of the constituent entities of the Federation, which speak about the law, and not about the fact, higher authorities in the order of subordination, the Federal Labor Inspectorate, and the European Court of Human Rights. The latter can consider disputes, while imposing obligations not on the parties to labor relations, but on the state. But there are also non-specialized bodies, whose competence, due to certain circumstances, may include consideration of individual labor disputes. We are talking about the judicial procedure for considering individual labor disputes in the course of the bankruptcy procedure of an enterprise.
Arbitration courts should be included among non-specialized bodies considering labor disputes during bankruptcy proceedings.
Disagreements arising between the employees of the debtor enterprise and the arbitration manager keeping the register of creditors' claims, on the issues of the composition and size of claims for wages and severance pay to persons working under employment contracts (this list is exhaustive) - are considered arbitration court in the manner prescribed by Article 60 of the said Law. In the presence of these disagreements at any stage of the insolvency proceedings, the employee has the right to apply to the arbitration court with an application or complaint about the violation of his rights and interests, which are considered in the court session no later than in month from the date of receipt. With a statement on disagreements, the arbitration manager can also apply to the court.
The law does not establish any special requirements for the form of such an application. In any case, it must contain an indication of the arbitration court to which the case is filed, the name of the applicant and his address, a statement of the grounds on which the representative of the employees considers the determination by the arbitration manager of the composition and amount of claims to be incorrect, as well as an indication of why the claims of the workers are legal and justified. In case of disagreement on the size of the requirements, it is desirable to submit an appropriate calculation. In addition, the requirement itself should be clearly formulated, for example, what specific amounts are unlawfully not included by the arbitration manager in the register of creditors' claims. The application must be accompanied by evidence that the person who signed it has the appropriate authority, for example, a certificate of employment, a copy work book etc. For a representative of the debtor's employees, such a document will be the minutes (extract from the minutes) of the meeting of employees of the organization of his choice, signed by the chairman and secretary of the meeting, if such demands are made by a group of employees, provided that their demands are identical. In this case, the court will consider these claims together in one court session.
The court has no legal grounds to return such a statement or leave it without movement on formal grounds, for example, by the fact that Article 128 of the Arbitration Procedure Code of the Russian Federation provides for a statement of claim. However, the arbitral tribunal will not be able to consider an application that is objectively impossible to appoint for a hearing, for example, when it is not clear from its content in which case it is filed, the name, address and signature of the applicant are missing.
As for the procedure for consideration of these disagreements by the arbitration court, the corresponding special procedure is not provided for by the legislation. Therefore, by virtue of Article 32 of the Bankruptcy Law, Article 223 of the APC, the procedure for issuing rulings established by the APC of the Russian Federation is applicable. Under such circumstances, in contrast to the decision on the insolvency case, the consideration of these disagreements can be carried out by the judge alone.
The ruling issued based on the results of consideration of the application or complaint must also comply in form and content with the requirements of Article 185 of the Arbitration Procedure Code of the Russian Federation. Until recently arbitrage practice followed the path of the impossibility of appealing against such acts. However, the Constitutional Court of the Russian Federation recognized the norms of the said law as inconsistent with the Constitution of the Russian Federation, excluding the right to appeal the rulings. Arbitration courts, at the same time, at the request of interested parties, have the right to use the procedures for appellate review of judicial acts, review due to newly discovered circumstances or review by way of supervision. Now the corresponding rule is enshrined in Art. 60 of the Bankruptcy Law.
The practice of consideration of relevant applications by the arbitration court shows that the latter recognizes established requirements on remuneration in the amount determined by the decision of the court of general jurisdiction, and does not accept additional evidence and arguments of persons participating in the arbitration process in the insolvency case
§ 4. Principles for adjudication of labor disputes
The principles of labor law (or its institutions) are the fundamental principles (ideas) enshrined in legislation that express the essence of labor law norms and the main directions of state policy in the field of legal regulation of relations related to the functioning of the labor market, the use and organization of hired labor . It is possible to formulate a number of principles for such an institution of labor law as labor disputes. These include:
ensuring the protection of labor rights of employees;
equality of the parties to the dispute before the law;
participation of workers' representatives (democratism);
availability of appeal to the bodies considering labor disputes;
ensuring legality in resolving labor disputes;
ensuring the objectivity and completeness of the study of materials and evidence;
free;
the principle of prompt consideration of labor disputes;
ensuring the real execution of decisions on labor disputes;
responsibility of officials for non-execution of such decisions.
Now we will give a description of each principle of consideration of labor disputes separately.
The principle of ensuring the protection of labor rights of workers means the right and obligation of jurisdictional bodies (authorized to resolve labor disputes) on the basis of the law to stop the violation of these rights, to restore them. (For example, if the administration refuses to pay the wages due to the employee, oblige her to do this; if illegal dismissal- reinstate the employee at work and pay for forced absenteeism). Regarding the topic of this work, this principle will sound like "ensuring judicial protection of the labor rights of workers." The right to judicial protection is not subject to any restrictions. Enshrined in the Constitution of the Russian Federation, the provision on the highest legal force and the direct effect of the Constitution of the Russian Federation means that all constitutional norms have supremacy over laws and by-laws, due to which the courts, when considering specific cases, must be guided by the Constitution of the Russian Federation, if the norms of sectoral legislation contain exceptions to this principle.
The principle of equality of parties before the law means that both the employee (workers) and the administration are equally obliged to comply with labor legislation, obey it and the will of the jurisdictional body when resolving labor disputes. The decision of the jurisdictional body is binding on the parties to the dispute.
The principle of democracy (participation of representatives of workers) in resolving labor disputes is expressed:
firstly, in that the bodies for the consideration of individual labor disputes in organizations (commissions for labor disputes) are formed by the labor collective from its composition;
Secondly, in the participation of trade unions as representatives of workers on their side in the process of resolving labor disputes;
third, representatives of employees of the organization (labor collective) or trade union participate in the bodies for the consideration of collective disputes (conciliation commissions, labor arbitration).
The accessibility of applying to labor dispute resolution bodies is ensured by the creation of such bodies directly in organizations (for example, CCC, conciliation commissions), the proximity of the courts to the place of work of the employee applying there.
The principle of ensuring legality in resolving labor disputes is expressed in the use by jurisdictional bodies of laws, other normative legal acts and making decisions on disputes only on their basis. Be guided by considerations of expediency (inexpediency), other motives, except for the normative legal basis, jurisdictional authorities are not entitled.
The principle of ensuring transparency means the openness of the meetings of all bodies considering labor disputes, the possibility of attending them by everyone. So-called "closed" meetings are possible only if the issue of maintaining state or commercial secrets arises when resolving a labor dispute.
The principle of ensuring the objectivity and completeness of the studied materials and evidence requires the jurisdictional authorities to consider the case exclusively on the basis of a comprehensive consideration and in full of all available materials and evidence, correlate them only with the law, and not allow a subjective approach to the case and its parties.
The principle of free of charge is directly enshrined in the law. When submitting applications to bodies that consider labor disputes directly in organizations, to other bodies on individual and collective labor disputes, the law does not provide for any payment for their services. When filing a claim with the court for claims arising from labor relations, employees are exempted from paying court costs to the state. Trade union members do not pay for the services provided by trade unions (legal protection services, trade union legal advice, etc.) in protecting their labor rights and interests in the process of resolving labor disputes. Workers who are not members of a trade union can receive assistance from them on terms determined by agreement (as a rule, such services are paid).
The principle of speed of consideration requires the bodies resolving labor disputes to comply with the short deadlines that are provided by law for the performance of all actions related to the consideration of such cases (as a rule, a labor dispute must be considered within 10 days). The law also establishes the deadlines for applying (submitting an application) to jurisdictional bodies. Missing the deadline for filing applications for labor disputes does not deprive employees of the right to seek protection in jurisdictional bodies. They can be restored by these bodies.
The principle of ensuring the real execution of decisions on labor disputes is implemented with the help of a special mechanism enshrined in the law of coercive influence on the administration if it does not voluntarily comply with a decision on a labor dispute, as well as bringing the responsible managers and officials to justice. Enforcement of decisions of jurisdictional bodies is ensured by the issuance of special certificates by them and their enforcement with the help of bailiffs.
The responsibility of officials for non-execution of decisions of bodies considering labor disputes, as a principle of considering labor disputes, is manifested in the possibility of bringing guilty officials to various types of legal liability (disciplinary, material, administrative).
The concept, causes and classification of labor disputes.
Labor disputes are unsettled disagreements that arise between an employee or a group of employees and an employer on issues related to the use of labor.
A labor dispute is considered to have arisen when the disagreements could not be resolved through direct negotiations with the employer.
Reasons for labor disputes:
1. low legal culture of many managers (poor knowledge of the laws, disrespect for the laws and the legitimate rights of employees, ignoring the requirements of the law, etc.);
2. poor organization of labor;
3. unclear definition of labor functions of employees;
4. non-compliance of the work with the qualifications of the performer;
5. unfavorable moral and psychological climate in the team, leading to conflict situations;
6. leadership style that causes dissatisfaction among employees;
7. ignorance by employees of labor legislation, their rights and obligations, etc.
The main means of overcoming labor disputes is the eradication of these causes.
Types of labor disputes
1. According to the subjects, labor disputes are divided into individual and collective.
Individual - these are disputes between a specific employee and the employer (Articles 381-397 of the Labor Code).
Collective - disputes between the staff of the organization or its structural unit (workshop, production, etc.) and the employer (Articles 398-418 of the Labor Code).
2. According to the subject of the dispute, labor disputes are divided into claims and non-claims.
Claims are disputes on issues related to the application of existing working conditions established by law, a collective agreement, agreements, an employment contract.
These include disputes over layoffs, transfers to another job, payment for work performed, vacation days, etc.
Non-claims are disputes related to the establishment of new or changes in existing working conditions.
These include disputes about the revision of production standards, the establishment of new wage conditions, etc.
The judicial procedure for considering labor disputes is regulated by the norms of the Civil Procedure Law.
Consideration of individual labor disputes.
Individual labor disputes are 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 legal act, an employment contract, which are reported to the labor dispute resolution bodies.
The primary body for the consideration of individual labor disputes is the KTS. KTS is formed at the initiative of employees or employers from equal number their representatives.
Representatives of employees are elected at the general meeting (conference) or delegated by the representative body of employees with subsequent approval at the general meeting.
Representatives of the employer are appointed by the head of the organization (Article 384 of the Labor Code).
Since CCCs are created at the initiative of the parties, the creation of such a commission is not mandatory.
The competence of the commission on labor disputes includes the resolution of individual labor disputes only claims.
The procedure for considering non-contractual labor disputes in the legislation has not been fully regulated. They can be considered with the participation of trade unions.
Labor disputes that are submitted for direct consideration to the courts cannot be considered in the CCC (Article 391 of the Labor Code).
The employee has the right to apply to the CCC by submitting a written application within three months from the day he learned about the violation of his rights (Article 386 of the Labor Code).
The procedure for resolving labor disputes is regulated by Art. 387, 388 TK. The dispute must be considered within 10 calendar days from the date of receipt of the application in the presence of the employee concerned. Consideration of a dispute in the absence of an employee is possible only upon his written application.
The commission has the right to summon witnesses and specialists to the meeting. At the request of the CCC, the head is obliged to provide her with the necessary documents.
If the CCC does not consider the labor dispute within 10 days, the employee has the right to transfer its consideration to the court.
The decision of the CCC may be appealed by the parties to the dispute in court within ten days. The decision comes into force after 10 days after its adoption and is subject to mandatory execution by the employer within 3 days.
If the employer fails to comply with the decision, the CCC issues the employee a certificate of enforcement, having the force of a writ of execution, which the employee submits to the court for execution.
Directly in the courts as the first instance considering labor disputes referred to in Art. 391 TK. These include:
1. disputes on the applications of employees - on reinstatement at work, on transfer to another job, on payment for the time of forced absenteeism, etc.;
2. disputes at the request of employers - about compensation by the employee for damage caused to the employer;
3. refusal to hire;
4. persons working under an employment contract with employers - individuals who are not individual entrepreneurs, and workers of religious organizations;
5. persons who believe that they have been discriminated against.
The employee has the right to apply to the court within 3 months from
the day when he found out or should have found out about the violation of his right, and in case of dismissal disputes - within 1 month from the date of delivery of a copy of the dismissal order to him or from the date of issue of the work book.
The employer may apply to the court with a claim for compensation by the employee for the damage caused to the employer within 1 year from the date of discovery of the damage.
When applying to the court with a claim on claims arising from labor relations, including non-fulfillment or improper fulfillment of the terms of an employment contract that are of a civil law nature, employees are exempted from paying duties and court costs (Article 393 of the Labor Code).
Resolution of collective labor disputes. Collective labor disputes are 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 an elected representative body of employees when adopting local regulations (Article 398 of the Labor Code).
Dispute consideration begins with conciliation procedures (Articles 401-406 of the Labor Code).
Stage 1. Consideration of the dispute in a conciliation commission, formulated from representatives of the parties on an equal basis, which must resolve the dispute within 5 working days from the moment of its formation. The decision in the commission is taken by agreement of the parties and is binding, not subject to appeal. If the parties come to an agreement, their decision is binding and the dispute is considered resolved.
If an agreement is not reached, the parties begin negotiations on inviting a mediator and (or) establishing a labor arbitration.
Stage 2. Consideration of the dispute by representatives of the parties with the participation of a mediator or transfer of the dispute to labor arbitration.
A three-stage conciliation procedure and a two-stage one are possible.
With a three-stage conciliation procedure, the second stage is the consideration of the dispute with the participation of a mediator. If within 3 working days the parties have not reached an agreement on the candidacy of the mediator, then they proceed to the creation of a labor arbitration.
The dispute involving the mediator must be considered within 7 working days from the moment of his invitation and end with the adoption of an agreed decision in writing or drawing up a protocol of disagreements, if such a decision could not be made.
In the latter case, the dispute is referred to labor arbitration. Establishment of labor arbitration, its composition, regulations, powers are formalized by the decision of the employer, representatives of employees and the state body for the settlement of collective labor disputes. The dispute must be considered within 5 working days from the date of creation of the labor arbitration. Labor arbitration decides on the merits of a labor dispute. This concludes the conciliation proceedings.
If conciliation procedures have not led to the resolution of a collective labor dispute, workers have the right to start organizing a strike (Articles 406, 409 of the Labor Code).
Strike as a way to resolve collective labor disputes. The right to strike as a way to resolve collective labor disputes is a constitutional right of Russian citizens, enshrined in Art. 37 of the Constitution of the Russian Federation.
The procedure for organizing and conducting a strike is regulated by Art. 410-414 TC. Participation in a strike is voluntary. No one may be forced to participate or refuse to participate in a strike.
The strike is led by a representative body of workers.
The employer must be warned in writing about the strike no later than 10 calendar days in advance.
He must warn of a strike government agency on the settlement of collective labor disputes.
For the duration of the strike, the employee retains the place of work and position, but the employer has the right not to pay wages.
The employer, executive authorities, compulsory medical insurance are obliged to take all measures to ensure public order, the safety of the property of the organization and employees.
In Art. 413 of the Labor Code provides for cases of prohibition of a strike in order to ensure security:
1. strikes are unacceptable when martial law or a state of emergency is introduced in the country;
2. in bodies and organizations of the Armed Forces of the Russian Federation;
3. in organizations in charge of ensuring the defense and security of the country;
4. in law enforcement agencies;
5. in organizations serving especially dangerous types of industries;
6. at ambulance and emergency medical aid stations;
7. in organizations related to the provision of vital functions of the population.
Strikes prohibited by law are recognized as illegal.
The decision to recognize a strike as illegal is made by the supreme courts of the republics, as well as by the courts of other subjects, upon the application of the employer or the prosecutor.
A court decision that has entered into force shall be subject to immediate execution. Workers are obliged to stop the strike and start work no later than the next day after the delivery of a copy of the court decision to the body leading the strike.
Employees who continue an illegal strike are subject to disciplinary liability as a violation of labor discipline.
1 Legal capacity legal entities is also recognized as special, since it is determined by the goals and objectives of their activities, specified in the relevant charters and regulations.
Chapters 60 and 61 of the Labor Code are devoted to this issue.
Article 381 An individual labor dispute is an unresolved disagreement that arises between an employee and an employer on a specific issue.
Different terms are used: disagreements, dispute, conflict.
The official concept of an individual labor dispute is given in article 381 of the Labor Code of the Russian Federation. Regarding its content, the following remarks can be made:
1) It seems inappropriate to use different concepts to characterize the same legal phenomenon: unresolved disagreement and dispute.
2) The legislator uses the concept of "unresolved disagreement", but law enforcement practice does not know the application of the concept of "resolved disagreement". Therefore, it is not entirely correct to use this concept to characterize an individual labor dispute.
3) The legislator indicates the employee and the employer as parties, but it should be borne in mind that in most cases disagreements arise between the employee and the authorized representatives of the employer.
4) From the second part of Article 381 it follows that one of the parties to an individual labor dispute may be individual who previously had an employment relationship with an employer, or job seeker and applying for an employment contract.
5) It is difficult to agree with the position of the legislator (these are seditious thoughts of Perederin) that an individual labor dispute arises from the moment an employee applies for the protection of his rights to a specialized body. It seems that an individual labor dispute arises from the moment of the actual violation of the employee's subjective labor rights.
What are individual labor disputes about?
1. Regarding the application of the current labor legislation and other regulatory legal acts containing labor law norms. Labor legislation includes (Article 5): the Labor Code of the Russian Federation, the Federal Law of the Russian Federation, containing labor law norms and the laws of the constituent entities of the Russian Federation, containing labor law norms. Distinguished from the term "labor legislation", there are already local and by-laws.
2. With regard to the application of collective agreements and labor agreements (they are of various levels - from federal to municipal).
3. Regarding the application of local regulations. They are lower in legal force than collective agreements and labor agreements.
4. Regarding the establishment of new or changes in existing working conditions, established on an individual basis.
The dynamics of the emergence of an individual labor dispute.
The dynamics of the emergence of an individual labor dispute includes next steps:
1) There is a labor offense, real or imaginary, in the opinion of the employee or employer.
2) Different assessment of the offense (real or imaginary) by the employee and the employer.
3) An attempt to resolve an individual labor dispute that has arisen independently by the parties through direct negotiations.
4) Appeal for resolution of an individual labor dispute to a specialized body (CCC or a court of general jurisdiction).
Causes of individual labor disputes.
Conditions for the emergence: there are conditions of an economic nature (there is no work in the state or in a constituent entity of the Russian Federation ...), a social nature ... These conditions are well described in textbooks.
In the educational and scientific literature on labor law, there are three groups of reasons that cause individual labor disputes.
1. The first group of reasons - reasons of a subjective nature.
· Tyranny and ignoring the legitimate rights of employees by employers, bureaucracy;
· Conscious violation by employees and employers of the current labor legislation;
· Different understanding and interpretation of labor law;
· Poor knowledge of current labor legislation;
· Honest delusion.
· And a number of others.
2. The second group of reasons is organizational and legal reasons.
· Abundance of normative legal acts regulating the use of dependent labor.
· Rapid update and change of the current labor legislation.
· The presence of many gaps and evaluative concepts.
· Lack of legal liability of the employer for non-compliance with certain norms of labor law.
3. The third group of reasons is organizational and economic reasons.
Use of obsolete equipment, mechanisms, units;
・Untimely delivery technical documentation;
Failure to provide workers with overalls, by individual means protection.
Types of individual labor disputes.
In the educational literature, individual labor disputes are classified on various grounds.
Based on the nature of the dispute, individual labor disputes are divided into:
a) Litigation disputes. That is, disputes over the application of labor laws.
b) Disputes of a non-contentious nature. These are disputes about establishing or changing working conditions on an individual basis. It's a matter of interest.
Based on the nature of legal relations, individual labor disputes are divided into:
a) disputes arising from labor relations;
b) relations directly related to labor.
Depending on the institution of labor law, labor disputes are divided into disputes arising from the application of the rules contained in a particular institution of labor law.
Bodies dealing with individual labor disputes.
According to the current legislation, individual labor disputes can be considered:
1) Commissions on labor disputes, which are divided into two types:
Commissions on labor disputes operating within the organization;
· Commissions on labor disputes operating within the framework of structural divisions.
2) Courts of general jurisdiction.
The legal status of labor dispute commissions is determined by the local normative act- Regulations on the KTS.
The regulation of consideration and resolution of labor disputes by the CCC is carried out on the basis of the application of labor law norms.
Consideration and resolution of individual labor disputes in courts is regulated by the Civil Procedure Code (CPC).
The conditions for the emergence of disputes are those conditions, circumstances that directly or indirectly affect labor relations, causing unsettled disagreements between employees and the administration.
The causes of labor disputes are those legal facts that directly caused disagreements between the employee (employees) and the administration. Even the reasons common for labor disputes are specific in a specific legal relationship to resolve a labor dispute. These are violations of certain rights of an employee or his obligations to the enterprise (for example, when he is financially liable for the damage caused).
The conditions for the emergence of labor disputes become causes in a particular labor dispute. Often labor disputes arise as a result of a combination of several reasons. Some of them are economic, others are social, others are legal.
The most common grounds for labor disputes are disagreements between the employee and the employer. Employees do not want to put up with violations of their labor rights, they strive to prevent the deterioration of existing working conditions and claim to improve them. In addition, such conflicts are often caused by such qualities of labor legislation as complexity, fragmentation, inconsistency and gaps. One of the main reasons that give rise to individual labor disputes is poor knowledge or ignorance of the labor legislation by the employee and the employer, i.e. low legal culture.
In a number of cases, individual labor disputes arise as a result of the dishonest attitude of some employees to the performance of their labor duties and the presentation of illegal demands by them, as well as due to the deliberate violation of labor laws by individual employers.
AT recent times quite often labor disputes arise due to the unfair attitude of employees towards their employers. For example, a former employee applies to the court for reinstatement due to the fact that he was fired while he was on sick leave. Formally, he is right. But in fact, the employee presents a sick leave - a document confirming the period of his disability, only at the stage of trial.
Economic conditions include, in particular, the financial difficulties of organizations that prevent the full and timely payment of wages, the provision of guarantees and benefits due to employees (for example, therapeutic and preventive nutrition), the absence or insufficiency of funds allocated for labor protection. Such conditions for the emergence of labor disputes give rise to serious social consequences, which in turn or in combination with economic consequences give rise to the emergence of labor disputes.
The conditions of a social nature include, for example, a growing gap in the income level of low- and high-paid workers.
The conditions of a legal nature include, in particular, the complexity, inconsistency, as well as the lack of accessibility of labor legislation for the administration and especially for employees, as a result - poor knowledge by employees of their labor rights and obligations of employers, ways to protect their rights; unwillingness to comply with labor legislation by many heads of organizations, officials of the administration; poor readiness of trade union leaders, trade union activists to protect workers based on the analysis of labor legislation.
Loading...