Liability labor disputes. Labor disputes. Conditions for labor disputes

"Labor Law", 2010, N 3

Most of the employees' appeals to the court with claims against employers regarding bringing employees to disciplinary liability are related to the fact that they do not agree that they have committed a disciplinary offense, or do not understand what their non-performance consists of. official duties. Conditions for the occurrence of employee liability and measures disciplinary action- in the practice of Russian reality.

To date, the economy has developed two legal regimes of regulation labor relations: written labor law for state (budgetary) organizations and "ordinary" law for the new commercial sector. If in government organizations The Labor Code of the Russian Federation is mostly observed, but in the commercial sector it practically does not work at all<1>. Trade union organizations are usually not created at small and medium-sized businesses, labor dispute commissions are not elected, that is, there are no bodies that should represent and protect the interests of workers. Legal insecurity, legal ignorance makes people accept any conditions of the employer. This situation gives rise to labor disputes.

<1>Alekseev S.S. General theory of law. In 2 vol. M., 2004. T. 1. 280 p. S. 189.

Labor disputes related to the disciplinary liability of an employee are a disagreement between an employee in respect of whom a disciplinary sanction has been applied and the employer who has taken the appropriate decision. Such a disagreement may be resolved directly between the parties to the dispute or by applying to the labor dispute resolution body of the interested party. These disputes arise on the application of legislation, local regulations in relation to an employee who has committed a disciplinary offense; on the issues of the correctness of imposing a disciplinary sanction, changing the wording of the grounds and date of dismissal, the compliance of the applied disciplinary sanction with the severity of the disciplinary offense committed, the recovery of funds for the time of forced absenteeism.

Conditions for labor disputes

These are the factors that directly or indirectly contribute to a large number of labor disputes on the same issues or significantly exacerbate the dispute that has arisen.<2>. The conditions of a labor dispute related to disciplinary liability, for example, include poor organization of work, when employees do not clearly know their functional responsibilities, so they don't do it. The level of labor discipline reduces unorganized leisure, the lack of formal living conditions, which also creates conditions for labor disputes<3>.

<2>Tolkunova V.N. Labor disputes and the procedure for their resolution. M., 1996. S. 10.
<3>Anisimov L.N., Anisimov A.L. Labor contracts. Labor disputes. M., 2003. S. 175.

They can be of a legal nature when there are gaps in the legislation, inaccurate wording, evaluative concepts that allow different interpretations of legal norms by the disputing parties. All this makes it difficult to understand. labor law for employee and employer.

Note. Due to the fact that the labor legislation does not disclose the concept of "immoral misconduct" and does not give examples of those actions that can be considered immoral, there are different opinions about the definition of immoral behavior, which is one of the grounds for termination employment contract with an employee for whom educational functions are the main content of his work (clause 8, part 1, article 81 of the Labor Code of the Russian Federation; hereinafter - the Labor Code of the Russian Federation).

The answer to the question whether the commission of an immoral act by an employee is disciplinary or not depends largely on the understanding of the employee’s job duties.<4>. Among the immoral offenses, for example, include the use of methods of education associated with physical or psychological impact<5>. This point of view is also consistent with judicial practice, which considers an immoral offense as foul language, bullying, offensive harassment, inducement to have sexual intercourse, physical or mental impact of an employee on a student, pupil (beating, hitting with a hand or some object)<6>etc.

<4>Boguslavskaya K.Yu. Dismissal of an employee performing educational functions in connection with the commission of an immoral offense incompatible with the continuation of this work. Problems legal regulation labor relations: Collection of materials scientific conference September 23 - 24, 2004 / Ed. ed. M.Yu. Fedorov. Omsk, 2004, p. 105.
<5>Kurennoy A.M. Labor Disputes: A Practical Commentary. M., 2001. S. 180.
<6>Decision of the Moscow District Court of Tver. The court recognized as lawful and justified the dismissal of a school teacher for committing an immoral offense incompatible with the continuation of work at school (from the archive of the court for 2000) // Court practice on labor cases / Comp. DI. Rogachev. M., 2006. S. 26 - 35; By the decision of the Cherdaklinsky District Court, the claim for the reinstatement of the educator S., who was dismissed for using unlawful methods of education, was dismissed (she punched a pupil of the boarding school K. in the face, put the barefoot pupil Z. on the cold floor). reinstatement at work // Lawyer of the university. 2005. N 12. S. 109.

But there is also a broader definition of immoral misconduct, when not only the action of the employee in relation to the pupil, the student, but also behavior in everyday life, after work is evaluated. For example drinking alcohol or appearing in in public places in a state of intoxication that offends human dignity or public morality<7>.

<7>Anisimov L.N., Anisimov A.L. Labor contracts. Labor disputes. M., 2003. S. 110.

In many cases, the case would not go to court if the Labor Code of the Russian Federation contained not only an approximate list of actions considered as immoral offenses, but also an indication of the inadmissibility of dismissal based on a general assessment of the employee's behavior in the team and at home, or on the basis of vague or insufficiently verified facts, rumors, etc.

P.V. Trubnikov defines the causes of labor disputes as legal facts that directly caused disagreements between the employee (employees) and the administration<8>. The content of the term "reasons for a labor dispute" by L.N. Anisimov and A.L. Anisimov - these are negative factors that cause a different assessment by the disputing parties of the implementation of a subjective labor right or the performance of a labor obligation and thereby give rise to disagreements between the subjects of labor relations. We can say that these are violations of any employee's rights or his obligations to the enterprise.<9>.

<8>Trubnikov P.V. Consideration by the courts of cases on claims for reinstatement at work // Legitimacy. 2006. N 1 - 2. S. 58 - 60.
<9>Anisimov L.N., Anisimov A.L. Labor contracts. Labor disputes. M., 2003. S. 173.

Many researchers point to separate causes of individual labor disputes. B.I. Ushkov, S.A. Goloshchapov, V.K. Kolosov and others distinguish the following groups of causes of labor disputes: ideological (subjective), organizational-legal and organizational-economic nature<10>; M.V. Lushnikov - objective and subjective causes and conditions<11>; L.N. Anisimov, A.L. Anisimov - subjective factors<12>.

<10>Goloshchapov S.A. The concept, types, causes, jurisdiction of labor disputes. M., 1980. S. 15 - 23; Kolosov V.K. Labor rights of workers and employees. M., 1987. S. 84 - 86; Ushkov B.I. On the causes of labor disputes in the USSR // Bulletin of the Leningrad University. Series of Economics, Philosophy and Law. 1965. N 23. S. 109 - 119.
<11>Lushnikova M.V. Labor disputes in the USSR. Yaroslavl, 1991. S. 4 - 5.
<12>Anisimov L.N., Anisimov A.L. Labor contracts. Labor disputes. M., 2003. S. 174.

IN AND. Smolyarchuk believes that disputes, as a rule, arise due to violations of the law<13>. Without a violation of rights that actually took place or existed, in the opinion of one of the parties, a labor dispute does not arise. In turn, the causes of these actual or imaginary offenses will be factors that have been identified in the legal literature as the causes and conditions of labor disputes. Indeed, the emergence of the labor disputes under consideration, as a rule, is preceded by a labor offense, "that is, the guilty failure to perform or improper performance by the obligated subject of his labor duties in the field of labor and distribution, and therefore a violation of the right of another subject of this legal relationship"<14>. At the same time, a dispute over the legality of imposing a disciplinary sanction may also arise if one party labor relations acted within the law, and the second party assessed these actions as unlawful (the employer reprimanded the employee for being late for work, and the employee believes that he was punished unfairly, since the delay was caused by good reasons). In any case, the presence or absence of a labor offense is established by the body considering the labor dispute.

<13>Smolyarchuk V.I. Legislation on labor disputes. M., 1966. S. 15.
<14>Anisimov L.N., Anisimov A.L. Labor contracts. Labor disputes. M., 2003. S. 170.

According to S.Yu. Chuchi, disputes are caused by two groups of factors that differ in the type of causal relationship between them and the dispute: direct causal relationship (cause - labor dispute) and indirect (condition - cause - labor dispute)<15>. It is necessary to agree with the point of view of S.Yu. Chuchi that a dispute is brought to life by a set of conditions that need to be considered in conjunction, while it is necessary to distinguish between the causes of labor disputes and the causes of offenses<16>.

<15>Chucha S.Yu. Social partnership in the sphere of labor: formation and development prospects of legal regulation in Russian Federation: Monograph. Omsk, 2005, p. 182.
<16>There. S. 184.

The scientific literature draws attention to the fact that modern conditions appeared new reason the emergence of labor disputes and it is connected with the situation in the state as a whole. "The high level of inflation, the over-regulation of economic relations, as opposed to the laws of management in market conditions, leads to a constant impoverishment of workers, a decrease in their standard of living, which, in turn, causes the need to increase wages which the employer is often unable to implement"<17>. In our opinion, it is more correct to attribute these circumstances to the conditions for the emergence of labor disputes, since, as noted, they are of a nationwide nature and contribute to the emergence of tension and conflict not only in labor relations.

<17>Anisimov L.N., Anisimov A.L. Labor contracts. Labor disputes. M., 2003. S. 176.

In individual labor disputes related to disciplinary liability, the reason may also manifest itself in the guilty actions of the employer who violates labor law standards due to low legal culture, and in the actions of the employee when he disputes the legitimate actions of the employer. On the part of the employee, a negative attitude to work duties may manifest itself in the form of absenteeism, drunkenness at work, poor performance of production tasks, etc., which forces the employer to impose penalties on such an employee, which he begins to challenge<18>.

<18>Anisimov L.N. Employment contract and individual labor disputes. M., 2004. S. 284.

The employee in court proves the fact of respectfulness of his absence from work

Example. On November 25, 2002, an electrician of the Nizhny Tagil Iron and Steel Works JSC K. was detained at the checkpoint of the plant in a state of alcohol intoxication about which the act was drawn up. The employee was fired under s. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation only on December 27, that is, a month after the commission of the disciplinary offense. The decision of the Tagilstroevsky district court Sverdlovsk region dated March 17, 2003, K. was reinstated at work with payment for forced absenteeism, since the deadline for applying the penalty was missed<19>.

<19>Case N 2-153 // Archive of the Tagilstroevsky District Court of N. Tagil, Sverdlovsk Region.

Analyzing the judicial practice in cases of dismissal in the Ivanovo region, V.N. Tolkunova came to the conclusion that "the majority of labor offenses upon dismissal, and, consequently, labor disputes, are due to the ignorance of the leaders of labor legislation with the unprincipled attitude of trade union committees to this"<20>. It should be noted that employees are also characterized by poor knowledge of labor legislation (even to a greater extent than for the employer), in particular, their labor rights and obligations, and methods of protection.

<20>Tolkunova V.N. Labor disputes and the procedure for their resolution. M., 1996. S. 14.

When analyzing the materials of court cases on the reinstatement of employees at work, it is also possible to identify other violations by the employer of the procedure for dismissing an employee established by law.

Example. When considering the case on the reinstatement of R., chief engineer of Ural-NT LLC, dismissed by order of 11/14/2005 for absenteeism, the court found that there were no reports or other documents confirming R.'s absence from the workplace; the employer did not draw up an act on the employee's refusal to give explanations; the dismissal order dated November 14 was not announced to the employee within the 3-day period established by law. As a result, the court came to the conclusion that the dismissal was unlawful, and satisfied the claims of the plaintiff in full.<21>.

<21>Case N 2-183 (2) / 2006 // Archive of the Tagilstroevsky District Court of N. Tagil, Sverdlovsk Region.

In a number of cases, the causes of labor disputes related to the disciplinary liability of an employee are disagreements between the parties to labor relations regarding the assessment of the reasons for the employee's absence from work. The employer considers these reasons disrespectful and dismisses the employee for absenteeism. The employee in court proves the fact of respectfulness of his absence from work. In the dispute that has arisen, the court is called upon to establish the truth.

Example. The assistant driver of the diesel locomotive of OJSC "NTMK" A. did not come to work on the night of September 25 to September 26, 2005. On September 25, he became ill, and in the evening he called an ambulance. A. refused hospitalization, on the morning of September 26 he did not go to the doctor, as he began to feel better. Thus, the employee did not have a document confirming his illness, and the employer fired him for absenteeism. The employee went to court. Ambulance workers were heard in court, certificate No. 231 was presented stating that the ambulance team really went to A. and stated that the patient was in a moderate condition. Thus, the court confirmed the validity of A.'s absence from work. The employer in this situation offered to resolve the dispute by changing the wording of the dismissal to "dismissal for own will"and paying compensation for the time of forced absenteeism<22>.

<22>Case N 2-33 (2) / 2006 // Archive of the Tagilstroevsky District Court of N. Tagil, Sverdlovsk Region.

There may be cases when an employee refuses to perform labor duties stipulated by an employment contract for health reasons.

Example. Electrician K. presented the employer with a medical report on the need to transfer to another job. The employer not only did not transfer him to more light work, although there was one at the enterprise, but he fired K. who did not go to work according to paragraphs. "a" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation for absenteeism. By the decision of the Tagilstroevsky court of N. Tagil, the claim to the employee was denied. The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, having considered the cassation appeal of the plaintiff, canceled the decision of the district court, because the absenteeism that arose was forced for the employee. In accordance with medical opinion the plaintiff could not perform the work of an electrician at height. The employer did not give consent to the transfer of K. to another workshop, where working conditions correspond to the prescription of doctors<23>.

<23>Case N 2-473 / 2006 // Archive of the Tagilstroevsky District Court of N. Tagil, Sverdlovsk Region.

Sometimes an employee does not go to work, sincerely believing that he is acting in accordance with the law.

Example. By order dated 03.01.2006, the electrician of NTMK OJSC V. was dismissed for absenteeism from December 4, 2005. At the court session, the plaintiff explained that he did not go to work due to his reduction. On November 10, 2005, V. was warned, against signature, to reduce his position. Employees on general meeting They explained that they work for another 2 months, and then the issue of their employment in the enterprise's sanatorium-dispensary is decided if there is a personal application or dismissal. On November 28, an order was issued to reduce a number of workers from November 30, but V.'s name was not in it. Thus, the court did not find confirmation of the fact of V.'s reduction, he was mistaken in the legality of his absence from the workplace. As a result, the claims were not satisfied by the court.<24>.

<24>Case N 2-85 (2) / 2006 // Archive of the Tagilstroevsky District Court of N. Tagil, Sverdlovsk Region.

Thus, the resolution of labor disputes, including those related to the disciplinary liability of an employee, requires knowledge of the essence of the matter, clarification of its sides, determination of their legal status, causes and conditions of occurrence, circumstances of disagreements and their subject. In addition, knowledge of the causes and conditions for the emergence of labor disputes makes it possible to develop a legal mechanism for preventing disputes and to carry out preventive measures.

S.A. Ustinova

department of documentation

The concept of labor disputes

In fulfilling his labor duties, the employee has the right to protect his labor rights, freedoms and legitimate interests. The Constitution of the Russian Federation and labor legislation recognize the right of an employee to resolve individual and collective labor disputes using the methods of their resolution established by law.

A labor dispute is a disagreement between the employer and employees on the regulation of labor relations, which are submitted for resolution by a special jurisdictional body.

The procedure for resolving individual labor disputes is regulated by Ch. 60 of the Labor Code of the Russian Federation, collective - Ch. 61 of the Labor Code of the Russian Federation.

The traditional cause of a labor dispute is labor offenses.

Employers are required to consider all employee requirements.

Stages of resolving a collective labor dispute:

• consideration of the arisen collective labor dispute by the conciliation commission;
• consideration of a collective labor dispute with the help of an intermediary;
• consideration of a collective labor dispute in labor arbitration.

Figure 1. Bodies dealing with labor disputes

Labor legislation, and in particular Art. 407 of the Labor Code of the Russian Federation provides for the settlement of collective labor disputes by a special service created in the system of state bodies of federal or municipal government. The functions of the service for the settlement of collective labor disputes are as follows:

• register collective labor disputes;
• check the powers of representatives of the parties to the collective labor dispute, if necessary;
• form a list of labor arbitrators and train them;
• identify the causes that gave rise to collective labor disputes;
• provide methodological assistance to the parties at all stages of dispute resolution;
• organize the financing of conciliation procedures;
• promote interaction between representatives of workers and employers with authorities state power and local government.

If an agreement is reached between the parties to a collective labor dispute, it shall be drawn up in writing and shall be binding on the parties.

If an agreement is not reached and the collective labor dispute is not resolved, workers, in accordance with the law, have the right to resort to a strike.

The right to strike, its procedure, obligations of the parties, guarantees, legal status workers and the prohibition of illegal strikes are regulated Labor Code RF.

In the performance of labor duties, the employee has the right to protect his labor rights, freedoms and legitimate interests, using all methods and procedures not prohibited by law. At the same time, the Constitution of the Russian Federation (Article 37) and labor legislation recognize the right of an employee to resolve individual and collective labor disputes using the methods established by federal law for their resolution, including the right to strike.

The procedure for consideration between the employee and the employer is established ch. 60 of the Labor Code of the Russian Federation. And the procedure for permission is provided ch. 61 Labor Code of the Russian Federation and is called "conciliation procedures", while workers have the right to strike. The right to strike is granted by art. 37 of the Constitution of the Russian Federation and regulated by Art. 409-415 of the Labor Code of the Russian Federation.

- these are disagreements between the employer (or his representatives) and the employee (employees) on the regulation of labor relations, received for the permission of a special jurisdictional body.

disagreement is a different assessment of the situation by the interacting parties.

The cause of a labor dispute, as a rule, is labor offenses or, in some cases, an honest misconception about the existence of an offense.

Classification and types of labor disputes

All labor disputes can be classified on various grounds.

Types of labor disputes by disputing subjects:

• individual labor disputes - when they affect the interests of individual employees;
• collective labor disputes - when the interests of the entire labor collective are affected (for example, non-fulfillment by the employer of the collective labor agreement) or part of it (a separate structural unit).

Types of labor disputes on legal relations from which they arise (follow from the subject of labor law):

1. labor disputes arising from the violation of labor relations (for example, but non-payment of wages, about illegal dismissal, delay in issuing a work book, etc.);

2. labor disputes arising from the violation of relations directly related to labor, i.e.:

• arising from the violation of relations but the organization and management of labor. For example, the employer requires the implementation of labor standards that are not provided technological process or requires employees to complete all production tasks at a pace exceeding the normal speed of completing tasks, or does not release an employee from work until he completes a production task, etc., and employees in a jurisdiction recognize these requirements as unlawful;
• arising from a violation of employment relations with this employer. For example, an unlawful denial of employment may be challenged in court;
• arising from the violation of social partnership relations. For example, the employer does not comply with the collective agreement and the employee in court requires the implementation of its norms. Usually such violations lead to a collective labor dispute, but each employee individually can protect his interests;
• arising from the violation of relations on the participation of employees (their representative bodies) in the management of the organization. For example, an employer adopts local regulations without the consent of the primary trade union organization;
• arising from a breach of relationship vocational training, retraining and advanced training at this employer. For example, the employer requires the employee to pay for his training or establishes probation after successful training;
• arising from a violation of relations on the material liability of the parties to the employment contract. For example, an employer, in violation of labor law, recovers from an employee full damages in excess of his average salary, by your order;
• arising from a violation of the relationship of supervision and control. Thus, the employer and the employee can appeal against the illegal application of administrative liability measures for violation of labor protection standards, and the parties can also appeal against the accident investigation act if they disagree with its content and conclusions;
• arising from the violation of relations on the resolution of labor disputes. For example, a party that does not agree with the decision of the labor dispute commission appeals its decision to the court, and the employer can also recognize the strike as illegal in court;
• arising from a violation of relations on a mandatory social insurance. For example, an employer refuses to pay a two-day sick leave to an employee, although according to the law, the first three days are paid at the expense of the employer, and the employee is forced to apply to the KTS.

Types of labor disputes by the nature of the dispute:

• disputes over the application of labor laws. Including disputes on 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 representative body of employees);
• disputes about the establishment or change of existing working conditions.

Types of labor disputes on the subject of the dispute:

• disputes about the recognition of a right violated by the other party to the employment contract;
• disputes about the award of payments and compensation for harm.

Types of labor disputes according to the method of its resolution:

• claims disputes;
• disputes of a non-competitive nature.

Disputes of a claim nature include disagreements arising in connection with the application of regulations, contracts, labor agreements. In the course of their resolution, the employee seeks the restoration or recognition of a specific right for him, that is, he files a claim. Litigation disputes are usually individual. Individual labor disputes of a claim nature are considered by labor dispute commissions, courts, higher authorities, therefore, from the point of view of jurisdiction, three types of proceedings are distinguished. Disputes of a non-contractual nature include disagreements arising in connection with a change in existing or the establishment of new working conditions. Collective labor disputes always have a non-competitive nature and therefore are resolved in a special procedural form.

Types of bodies capable of resolving a labor dispute

Types of bodies that can resolve disagreements between participants in labor relations.

The choice of a jurisdictional body capable of resolving a conflict between participants in labor relations largely depends on the nature of the dispute and its causes. A higher organization (or a ministry, if the enterprise has departmental subordination) can resolve the conflict, if the higher organization is authorized to change the decisions of the lower organization or give binding instructions. The dispute can be resolved by the CTC (commission on labor disputes) if the disagreements relate to relations in the field of labor and the parties are the employee and the employer. The judiciary considers all individual disputes, since Art. 46 of the Constitution of the Russian Federation enshrines the right of all citizens to judicial protection. Also, the court may establish the illegality of the ongoing or announced strike. Collective disputes are considered in the order of conciliation procedures, the jurisdictional body in which is the conciliation commission, mediator or labor arbitration. In addition, the supervisory and control authorities, which have the right to issue binding instructions, can also help eliminate the causes that caused the conflict, that is, in fact, end it.

Article 382 of the Labor Code of the Russian Federation names the bodies for the consideration of individual labor disputes: labor dispute commissions and the court. Therefore, we separate the bodies that consider labor disputes, and the bodies that can resolve the conflict between the participants in the labor and directly related relations. The confusion arises because of the conflict of labor laws. So, for example, according to Art. 391 of the Labor Code, individual disputes about reinstatement at work are considered directly in the courts, regardless of the grounds for termination of the employment contract and at the request of persons who believe that they have been discriminated against. Whereas Art. 373 of the Labor Code of the Russian Federation practically allows you to consider a dismissal dispute in an administrative manner. In particular, part 3 of this article says: “The State Labor Inspectorate, within ten days from the date of receipt of the complaint (application), considers the issue of dismissal and, if it is recognized as illegal, issues to the employer a binding order to reinstate the employee at work with payment for forced absenteeism ".

Until 2006 Art. 3 of the Labor Code of the Russian Federation also secured the right of persons who believe that they have been discriminated against in the field of labor to apply for the restoration of violated rights to the federal labor inspectorate or to the court. June 30, 2006 Federal Law No. 90-FZ Art. 3 was changed and only the court was left as an instance protecting citizens from discrimination in the sphere of labor. But, of course, certain norms of labor legislation that determine the functions of supervisory authorities that are unusual for them to consider labor disputes should not be considered binding, since the powers and competence of supervisory authorities are determined by special legislation. Therefore, the supervisory authorities can eliminate the conflict only in the course of performing their control functions.

The nature of the emergence and development of a labor dispute is reflected in the following stages:

• first, the root cause of the dispute arises, is it an employment offense or a conscientious error about the offense;
• different assessment of the current situation by the parties to the employment contract, i.e. the emergence of disagreements;
• an attempt to resolve the disagreements that have arisen independently through negotiations or mutual consultations, which does not bring results. The law requires mandatory consideration of the conflict (disagreements) between the parties only in certain cases (for example, Article 235 of the Labor Code of the Russian Federation, which provides for compensation by the employer for damage to the employee's personal property);
• sending a statement on the essence of the disagreement with a view to its resolution to the competent jurisdictional body. It is at this stage that a labor dispute arises;
• resolution of the dispute on the merits, making a decision;
• it is possible to appeal the decision (optional stage);
• implementation of the decision.

In a labor dispute, the legislator determines an important point that these are unsettled disagreements (Article 381 of the Labor Code of the Russian Federation). The dictionary of the Russian language contains the following definition: disagreements - lack of agreement due to dissimilarity in opinions, views, interests; contradiction, inconsistency (of words, thoughts). Thus, in order to eliminate disagreements, the parties can conduct mutual negotiations, and if the disagreements are not resolved in this way, then the conflict develops into a labor dispute if one of the parties, in in due course, specifically to resolve the conflict that has arisen, will apply to a special institution (body) endowed with certain powers (jurisdiction).

The subjects of disagreements in individual disputes are the employee and the employer, but it should be noted that the subject of an individual dispute may be a citizen who has expressed a desire to conclude an employment contract with the employer if the employer refuses to conclude such an agreement. The subject of collective labor disputes opposing the employer or his representative is the labor collective or representatives of employees who make demands 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 take into account the opinion of the elected representative body of employees when adopting acts containing labor law norms.

LABOR DISPUTES

Introduction

The leading role in the regulation of social relations (including in the sphere of labor) belongs to the law. Today, citizens of the Russian Federation and other persons residing on the territory of the Russian Federation can exercise their constitutional right to work in a variety of forms. Thus, the Constitution of the Russian Federation establishes the right of everyone to work in conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination and not lower than that established by federal law. minimum size wages and the right to protection against unemployment. Everyone has the right to rest. A person working under an employment contract is guaranteed the length of working time established by federal law, weekends and holidays, and paid annual leave.

The Constitution recognizes the right to individual and collective labor disputes using the methods of their resolution established by federal law, including the right to strike.

However, these constitutional guarantees, which are very important for each person, are by no means automatically implemented in specific labor relations that a person enters into when he enters a job as an employee and concludes an employment contract. They are specified taking into account laws, other regulations (including those concluded within specific organizations) in individual and collective labor contracts.

Based on the requirements of the Constitution of the Russian Federation, generally recognized principles and norms of international law, state guarantees of labor rights and freedoms of citizens, regulation of labor relations (and other relations directly related to them) are carried out by the Labor Code of the Russian Federation (Labor Code of the Russian Federation). The Labor Code of the Russian Federation contains a special section XIII “Protection of labor rights of workers. Resolution of labor disputes. Responsibility for violation of labor legislation. The norms of this institution of labor legislation provide for the protection of the rights of workers and employers, both with the help of special bodies created specifically to resolve labor disputes, and in court.

The interests of the employer and the employee hired by him do not always coincide, therefore, a clash of these interests is possible at any stage of the existence of an employment relationship. This, in turn, leads to conflicts.

The emergence of labor disputes, as a rule, is preceded by labor offenses, i.e., non-fulfillment or improper fulfillment by the subject (employee or employer) of his labor duty. Therefore, there is a violation of the right of another subject of this legal relationship. If the actions of the obligated subject were legal, and the other subject considers them unlawful, a labor dispute may arise, although there was no offense. The presence or absence of a labor offense is established by the jurisdictional body considering the labor dispute.

The foregoing determines the relevance of this work, the purpose of which is to substantiate the concept of labor disputes, study the causes of their occurrence, as well as consider the characteristics of individual and collective labor disputes of the organization.

1. The concept and causes of 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 the existing norms of labor and other social legislation.

However, not every disagreement develops into a legal dispute. Participants in relations regulated by labor law can resolve their conflict peacefully, through negotiations and prevent the transition of disagreements that arise between them to the stage of a labor dispute. But if the conflict is not resolved by its participants and it becomes necessary to involve special authorized bodies in its resolution, then it develops into a labor dispute. Based on the foregoing, we formulate the definition of labor disputes.

A labor dispute is a disagreement between an employee (employees) and an 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 conditions for the emergence of disputes are 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 for the resolution of 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).

Trade unions are intended by law to represent the interests of workers and protect their rights. They do not always actively and effectively contribute to resolving disagreements between employees and management, since they do not use all the means at their disposal for this purpose.

To eliminate the causes of labor disputes, means and methods that affect each of them in a complex manner should be used. However, even if all the necessary measures are taken, it is unrealistic to completely eliminate the causes of labor disputes. Labor disputes will not disappear. May decrease them total number but labor disputes will exist for the foreseeable future.

An effective tool for protecting the labor rights of workers is called upon to be the procedure for resolving labor disputes established by law. Let us name the normative acts regulating this procedure.

Main regulations for the consideration of labor disputes are the laws of the Russian Federation. First of all, this is the Constitution of the Russian Federation, which enshrines the fundamental rights in the sphere of labor, and among them is the right to protect one's rights (including judicial protection). Among the most important regulations governing the consideration of labor disputes is the Labor Code of the Russian Federation, adopted State Duma December 21, 2001. International legal regulation of labor relations is also becoming one of the most important sections of Russian labor law, which must be taken into account when resolving labor disputes.

Judicial practice is also of great importance for the consideration of labor disputes. Of course, the decisions of the Plenum of the Supreme Court of the Russian Federation are not sources of law and are not included in the system of normative acts. However, they contain a judicial interpretation of the relevant issues, and the courts, considering specific cases, are guided by them and use them to develop a uniform judicial policy.

2. Individual labor disputes

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.

By general rule, individual labor disputes, depending on their jurisdiction, are divided into those considered in general order(the commission on labor disputes is a mandatory pre-trial stage) and on individual disputes (considered directly by the court). In addition, some of them may be authorized by the employer and the relevant trade union body, as well as a higher body.

The main cause of labor disputes are disagreements between the employee and the employer directly or through its administration. On the subject of disagreement, disputes can be divided into three groups, depending on the immediate causes of their occurrence.

1. Employees claim to improve the conditions for the sale of their labor force - an increase in wages, benefits, vacation time, improved working conditions, etc., but the employer does not agree with this.

3. Disputes of a legal nature. These include those that arise due to the complexity and inconsistency of legislative and other regulatory legal acts, as well as due to the fact that many administrative workers do not know labor legislation well.

Trade union workers are often hindered in their actions to protect the rights of workers, encountering misunderstanding and resistance on the part of the administration and the passive attitude of workers to the illegal actions of its representatives.

In the Russian economy, two legal regimes for regulating labor relations have developed - a written labor law for budget organizations and "ordinary" law for the new commercial sector. If the Labor Code is still somehow observed in budgetary organizations, it simply does not work in the new commercial sector. At small and medium-sized businesses, civil law relations are common, as it is convenient for the employer (there is no need to comply with the minimum guarantees established in labor legislation).

The growth in the number of small and medium-sized enterprises exacerbates the problem of protecting the legal rights of employees. Trade union organizations are usually not created at these enterprises, commissions on labor disputes are not elected, i.e. there are no bodies that should represent and protect the interests of workers.

Now consider ways to resolve individual labor disputes.

Any labor dispute can be resolved through negotiations between the employee and the employer.

The employee can set out his requirements in a statement and transfer it to the employer in the prescribed manner. But it is better to meet with the employer in person and state your requirements orally to him, but at the same time it is necessary to prepare a written version of your requirements in duplicate.

The resolution of an individual labor dispute through negotiations with the employer can be considered a mandatory procedure. This follows from Art. 385 of the Labor Code of the Russian Federation: “An individual labor dispute is considered by a labor dispute commission if the employee, independently or with the participation of his representative, has not resolved the differences in direct negotiations with the employer.” That is, before applying to the labor dispute commission (CTS) or to the court, the employee must take all measures to resolve the dispute through negotiations.

An employee can negotiate both independently and with the participation of a representative. Article 370 of the Labor Code of the Russian Federation states that a trade union organization may take part in the consideration of labor disputes related to violations of labor protection legislation, obligations stipulated by collective agreements and agreements, as well as changes in working conditions. In cases of violation of labor legislation, trade unions have the right, at the request of trade union members, other workers, as well as at own initiative apply with statements in defense of their labor rights to the bodies considering labor disputes. But this situation is possible only at enterprises where there is a trade union organization. These are usually large enterprises.

An employee who works for an employer - a small business entity, who did not find an understanding of his problems on the part of the employer, can immediately go to court. But he also has the opportunity to involve representatives of the Federal Labor Inspectorate or the prosecutor's office in solving his problems.

Another body to which an employee can apply for the protection of his rights if it is impossible to resolve an individual labor dispute through negotiations with the employer is the Prosecutor's Office of the Russian Federation.

An appeal to the Federal Labor Inspectorate and the prosecutor's office can be considered as the involvement of these bodies to participate in the negotiation process between the employer and the employee on the merits of an individual labor dispute. But these bodies will already exercise an imperative influence on the employer. This imperative influence on the employer by these bodies is possible only in case of violation of labor legislation by the employer.

3. Collective labor disputes

A collective labor dispute is an unresolved disagreement between employees and employers regarding the establishment and change of working conditions (including wages), the conclusion, amendment and implementation of collective agreements, agreements on social and labor relations (Article 398 of the Labor Code of the Russian Federation).

First of all, it is necessary to note the difference between a collective labor dispute and an individual one, which follows from this definition. The fact is that in an individual dispute, the parties have disagreements about the norms and rules already established by law that regulate the work of an employee and their implementation. In the process of a collective dispute, we are talking about rules and agreements that are usually not written in laws, but provided (or assumed) in the text of collective agreements and agreements. These agreements are the subject of "bargaining", negotiations between the parties to labor relations.

Collective labor disputes arise between the employer (employers) and employees of an organization, branch, representative office of several organizations. All of them exercise their powers through representatives. In the event of a collective labor dispute, the parties must proceed to conciliation procedures.

Since the terms for resolving a collective labor dispute with the help of conciliation procedures are precisely defined by law, it is important to establish the moment when a collective labor dispute begins. It depends on the nature of the dispute.

So, if a dispute arises in connection with the establishment or change of working conditions, non-fulfillment of a collective agreement or agreement, or the refusal of the employer to take into account the opinion of an elected representative body containing labor law norms in the organization, there is a certain procedure for putting forward workers' demands.

The requirements put forward are subject to mandatory approval at the relevant meeting (conference) of employees.

The meeting is convened by the representative body of employees and is considered competent if more than half of the employees are present at it.

The employer is obliged to create appropriate conditions for holding a meeting (conference).

The demands of employees are sent to the employer in writing. Employers are obliged to consider the claims of the employees of the organization sent to them and inform the representative body of employees of the decision in writing within 3 working days from the date of receipt of the claims.

If the employer satisfies the requirements of the employees, the disagreements are considered settled, and a collective labor dispute does not arise. In case of rejection of all or part of the requirements, as well as the employer's failure to communicate its decision, the day of notification of the rejection of the requirements or the expiration of the 3-day period for their consideration is considered the moment the collective labor dispute begins.

There are three stages of conciliation procedures: conciliation commission, consideration of a collective labor dispute with the participation of a mediator, labor arbitration.

All conciliation procedures are created taking into account the fact that at some stage the parties will finally come to a common opinion. If this does not happen or the employer does not comply with the terms of the agreement reached, the workers have one more remedy left - a strike. But such a solution to the problem will be far from peaceful.

A strike is a temporary voluntary refusal of employees to perform their labor duties (in whole or in part) in order to resolve a collective labor dispute. The strike must be properly prepared in order to avoid formal grounds for recognizing the strike as illegal.

No one may be forced to participate in a strike or to refuse to participate in a strike. Representatives of the employer are not entitled to organize a strike and take part in it. Information about the beginning of the upcoming strike must be provided by the representatives of employees to the employer in writing and no later than 10 calendar days. The employer is warned about holding a warning strike 3 working days in advance.

Conducting a strike does not stop conciliation procedures for the settlement of a collective labor dispute. Moreover, the parties are obliged to continue to resolve the dispute through conciliation procedures.

Minimum necessary work(services) in organizations, branches, representative offices, whose work is related to the safety of people, ensuring their health and the vital interests of society, must be provided during a strike.

The responsibility of a trade union organization that declared and did not stop a strike after it was declared illegal is to compensate for the losses caused by the illegal strike at its own expense in the amount determined by the court.

Conclusion

As a regulator of social relations, law usually actively manifests itself precisely when this or that conflict arises, including labor conflicts. Labor law violations are common. They begin even before the conclusion of employment contracts, when the applicant for a vacancy is exposed in advance to illegal conditions for concluding an employment contract. As a result, the employment contract is concluded on previously illegal conditions.

Russian reality shows that in the economy today there are two legal regimes for regulating labor relations - a written labor law for state (budgetary) organizations and "ordinary" law for the new commercial sector. If in state organizations the Labor Code of the Russian Federation is mostly observed, then in the commercial sector it practically does not work at all. In small and medium-sized businesses, civil law relations are common, as it is convenient for the employer. Legal insecurity plus legal ignorance makes people accept any conditions of the employer.

It is this situation that contributes to the emergence of labor disputes, both individual and collective.

As can be seen from the content of the work, the legislator regulated in sufficient detail the procedures for resolving individual labor disputes. The Labor Code of the Russian Federation defines two bodies that are authorized to consider labor disputes. This is a commission on labor disputes and a court.

It must be remembered that an effective process of developing labor relations is possible only in conditions of law and order and respect for labor law. It aims at legal education and intolerance to any violations of the law, at the prevention of any labor offenses and the elimination of the causes that give rise to them. Active implementation of this contributes to the reduction and elimination of the causes and conditions of labor disputes.

List of used sources and literature

Labor Code of the Russian Federation of December 30, 2001 (as amended on July 24, 25, 2002, June 30, 2003)

Decree of the Plenum of the Supreme Court of the Russian Federation of December 20, 2004 N10 "Some questions of the application of legislation on compensation for moral damage" with amendments and additions.

Vlasova V.I., Krapivin O.V. Resolution of individual labor disputes // Citizen and Law. - M, 2004.

Gavrilina A.V., Chikanova L.T., Korshunova T.I., Bocharnikova I.I. Comment judicial practice. Issue 9. - M, 2006. dispute iv. Yak was already meant to be, reasons labor dispute and in the number of violations of legislation ...); from the broken order of the collective labor dispute industrious arbitration; s disruption of the order accepted ...

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If, as a result of improper performance of labor duties by one of the parties to the employment contract, the other party has suffered damage, liability arises. The employer is obliged to compensate the employee for the earnings not received by him in all cases of illegal deprivation of the employee of the opportunity to work, for example, if: the employee is illegally suspended from work, dismissed or transferred to another job; the employer refused to comply with or failed to comply with the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee in his previous job; the employer delayed the issuance of a work book to the employee, work book incorrect or inconsistent with the law wording of the reason for the dismissal of the employee and in other cases provided for by federal laws and collective agreement.

Liability in labor law

The general is to impose on the employee disciplinary sanctions provided for. Labor Code of Ukraine and rules internal labor old schedule. Certain categories of employees are subject to special disciplinary responsibility under disciplinary charters and regulations on discipline.

For violation of labor discipline, only one of two types of sanction can be applied to an employee - a reprimand or dismissal. Legislation, charters and discipline regulations may provide for other disciplinary sanctions for certain categories of employees. This applies to prosecutors and investigative workers, judges, ratsivniki in railway transport, communications, mining enterprises, etc. Disciplinary sanctions are applied by the body that has been granted the right to hire (election, approval and appointment) of an employee.

Labor legislation provides for two types of material liability of employees: limited and full. The main type of material liability of an employee is limited material liability. It consists in the obligation of the employee, through whose fault the damage was caused, to compensate the employer for direct damages, but not more than his average monthly earnings.
Direct actual damage is understood as the loss, deterioration or decrease in the value of property, the need for the enterprise to incur costs for restoration, acquisition of property or other valuables, or spend extra, i.e. caused as a result of a violation by the employee of labor duties, cash payments. Unreceived income is not eligible for reimbursement. Full liability without limitation by any border for harm caused by an employee is provided for in Article 134. Labor Code.

Topic 5.3. labor law liability

Direct actual damage is understood as a real decrease in the employer's cash property or deterioration of the said property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition or restoration of property. The employee is liable both for direct actual damage directly caused by him to the employer, and for damage incurred by the employer as a result of compensation for damage to other persons. Topics for projects, abstracts and discussions 1. Strikes - "for" and "against".
2. Wages and labor discipline.

The concept and types of liability under labor law

If after 2 working days the specified explanation is not provided by the employee, then an appropriate act is drawn up. The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction. A disciplinary sanction is applied no later than 1 month from the date of discovery of the misconduct.

Attention

A disciplinary sanction may not be applied later than 6 months from the date of the misconduct, and based on the results of an audit, audit of financial and economic activities or audit- later than 2 years from the date of its commission. For each disciplinary offense, only one disciplinary sanction may be applied. The order (instruction) of the employer on the application of a disciplinary sanction is announced to the employee against signature within 3 working days from the date of its issuance, not counting the time the employee is absent from work.

Consequently, the basis of disciplinary liability is always a disciplinary offense committed by a particular employee. In accordance with Art. 189 of the Labor Code of the PMR, a disciplinary offense is a failure to perform or improper performance by an employee due to his fault of the labor duties assigned to him. If an employee commits a disciplinary offense, the employer has the right to apply the following disciplinary sanctions: 1) remarks; 2) reprimand; 3) dismissals on relevant grounds; 4) transfer to a lower paid job for up to 3 months or shift to a lower position for the same period.
Laws, charters and regulations on discipline for certain categories of employees may provide for other types of disciplinary sanctions. Before applying a disciplinary sanction, the employer must request a written explanation from the employee.
With limited material liability, the maximum amount of compensation for the damage caused is limited to the established limits of the wages of the employee who caused the damage. The main type of limited material liability is liability in the amount of actual damage, but not more than the average monthly salary of an employee. It occurs in all cases of damage caused by an employee, unless higher limits are established by law.
With full financial responsibility, the damage caused is recovered in full without any restrictions beyond the limits of wages. It occurs in cases established by law (art.

§ 7. legal liability in labor law

Info

What are labor disputes? What are the reasons for their occurrence? 2. What is a labor dispute committee, how is it formed and how does it work? 3. How does the conciliation commission work? 4. What is a strike? 5.

When are strikes not allowed? 6. What is labor discipline? 7. What incentives are provided for exemplary performance of labor duties? 8. What is disciplinary responsibility? 9. What is the liability of the employer? We examine the documents Labor Code of the Russian Federation (Extracts) Article 232.

Obligation of a party to an employment contract to compensate for damage caused by it to the other party to this contract A party to an employment contract (employer or employee) that caused damage to the other party compensates for this damage in accordance with this Code and other federal laws.

Labor law liability

Disciplinary responsibility of employees. One of the duties of employees is the proper performance of labor duties, the rules of internal work schedule that is included in the concept of labor discipline. If an employee violates labor discipline through his fault and commits a disciplinary offense, he is subject to disciplinary liability. Disciplinary liability of employees is one of the types of legal liability that is imposed for misconduct. Disciplinary responsibility is the obligation of the employee to endure adverse consequences, provided for by the norms of labor law, for guilty, unlawful failure to perform or improper performance of their labor duties. Employees who have committed a disciplinary offense may be subject to disciplinary liability.

Responsibility under labor law presentation

Since, unlike recreation and entertainment, labor requires very significant volitional, mental, physical efforts from the person employed by it, not always and not everyone succeeds in the process. labor activity be up to standard standards of conduct. This determines the importance of maintaining a certain, necessary level of labor discipline. Labor discipline is obligatory obedience for all employees to the rules of conduct determined in accordance with the Labor Code of the Russian Federation, other laws, a collective agreement, and local regulations of the organization. The content of labor discipline includes requirements for employees to work honestly, conscientiously, timely and accurately follow the orders of the employer, comply with safety regulations, labor protection requirements, take care of material values, etc.

Responsibility under labor law in brief

Important

These include: 1. Conclusion between the employee and the owner written contract on full liability (clause 1, article 134) 2. Receipt of property and other valuables by an employee against a report on a one-time power of attorney or other one-time documents (clause 2, article 134) 3. Damage caused by the employee’s actions that have signs of acts prosecuted in criminal procedure (p.

C in 134) 4. Damage caused by an employee who was in a state of intoxication (clause 4 of article 134) 5. Damage caused by shortage, deliberate destruction or deliberate damage to materials, semi-finished products, products (products), including during their manufacture , as well as tools, measuring instruments, special clothing and other items issued to the employee for use by the enterprise, institution, organization (clause 5 of article 13434). 6.

Responsibility under labor law abstract

The party to the employment contract (employee or employer) that caused damage to the other party compensates for this damage in accordance with the Labor Code of the PMR and other laws. An employment contract or written agreements attached to it may specify the liability of the parties to this contract. At the same time, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer - higher than provided for by the Labor Code of the PMR or other laws.

Termination of an employment contract after causing damage does not entail the release of the party to this contract from material liability provided for by the Labor Code of the PMR or other laws. Material liability the employer to the employee: 1) the employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work.