The court considers labor disputes upon the application:
♦ on the invalidity of the employment contract in the cases provided for by Art. 22 TC;
♦ an employee or employer if they do not agree with the decision of the labor dispute committee;
♦ an employee, if the labor dispute committee has not considered his application within the established ten-day period;
♦ a prosecutor if the decision of the labor dispute committee contradicts the law.
Labor disputes are considered directly in court on applications:
1) employees working for employers where labor dispute commissions have not been created;
2) employees who are not members of the trade union, if they have not applied to the labor dispute committee;
3) employees on reinstatement at work, regardless of the grounds for terminating the employment contract, on changing the date and wording of the reason for dismissal, on payment for the time of forced absenteeism or performance of lower-paid work, with the exception of employee disputes for which a different procedure for their consideration is provided;
4) employers to compensate them for material damage caused by employees;
5) employees on the application of labor legislation, which, in accordance with the legislation, was decided by the employer and the trade union within the limits of the rights granted to them;
6) employees on the refusal of the employer to draw up an accident report or disagreement with its content.
Disputes on refusal to conclude an employment contract with:
1) by persons invited to work by way of transfer from another employer;
2) young specialists who graduated from institutions providing higher or secondary specialized education, postgraduate students who graduated from institutions providing postgraduate education, persons who graduated from institutions providing vocational education, and sent in the prescribed manner to work for a specific employer ;
3) other persons with whom the employer, in accordance with the legislation, is obliged to conclude an employment contract;
4) by persons on discriminatory grounds.
In addition to the listed labor disputes, disputes are also considered directly in court:
Workers in labor relations with trade union committees (librarians, accountants, etc.);
Workers working under labor contracts for citizens (domestic workers);
About compensation for material damage to an employee due to the employer's untimely submission of documents to the social protection department for the appointment of a pension, etc.
The court considers labor disputes based on applications from employees applying for the protection of their violated labor rights and on applications from the employer for compensation for material damage caused by the employee in the performance of labor duties. Cases arising from labor relations can be initiated in court in cases provided for by law at the request of the prosecutor, as well as at the suit of a trade union that defends the labor rights of its members.
When considering individual labor disputes, employees are exempted from paying court fees.
When deciding on the initiation of proceedings in a labor dispute, the judge is obliged to find out whether Part 2 of Art. 236 of the Labor Code of the obligatory out-of-court procedure for its resolution by the labor dispute commission *.
The list of disputes established by Part 2 of Art. 236 TC and subordinate CCC is not exhaustive. In particular, such disputes also include disputes: on the payment of average earnings during forced absence or the difference in earnings during the performance of lower-paid work in connection with an illegal transfer; on the collection of wages, including allowances provided for by the remuneration system; on the amount of earnings accrued taking into account the coefficient of labor participation; on the application of disciplinary sanctions; about incorrect or inaccurate entries in the work book of information about the conclusion, change or termination of the employment contract, if these entries do not correspond to the order (instruction) or other documents provided for by law.
If the plaintiff fails to comply with the extrajudicial procedure for resolving a labor dispute established by law, the judge refuses to initiate a case (part 2 of article 246 of the Code of Civil Procedure).
Having found the refusal to hire illegal, the court issues a decision obliging the employer to conclude an employment contract and sets a deadline for the execution of the decision.
A court decision on imposing the obligation on the employer to conclude an employment contract cannot affect the content and conditions of the employment contract, which, by virtue of Art. 19 of the Labor Code are determined by agreement of the parties in compliance with the requirements provided for by labor legislation.
Regardless of who filed the claim - the employee or the employer who disagrees with the decision of the CCC, the court considers this dispute in the course of action proceedings, in which the plaintiff is the employee, and the defendant is the employer challenging the employee's claims.
The employer, employee, legal representatives of the minor employee, as well as the prosecutor in the cases provided for in Art. 81 of the Code of Civil Procedure, and other persons in accordance with the rules established by Chapter 11 of the Code of Civil Procedure.
Vessels must strictly comply with the established part 2 of Art. 158 Code of Civil Procedure of a month for the consideration of disputes arising from labor relations.
When considering cases of this category, the courts should respond to the revealed facts of violation of labor legislation by issuing private rulings.
To draw the attention of the courts to the fact that according to Part 4 of Art. 241 of the Labor Code, employees are exempted from paying state duties and costs on individual labor disputes, including disputes over compensation for moral damage, if they arise from an employment relationship.
4. Describe the content of the employment contract.
An employment contract, like contracts in general, is an agreement between the parties aimed at establishing, changing or terminating certain rights and obligations.
Article 19 of the Labor Code establishes the following mandatory conditions of an employment contract:
1) information about the employee and employer who entered into an employment contract. Employee data includes last name, first name, patronymic, place of residence, passport data or other identity document of the employee. Information about the employer is the full name (if necessary, and abbreviated), the organizational and legal form of the organization, its location;
2) place of work with an indication of the structural unit to which the employee is hired. The place of work is understood as a specific organization, an enterprise, institution, other employer with whom an agreement was concluded, located in a certain area on the day of the conclusion of the employment contract;
3) the labor function of the employee (work in one or more professions, specialties, positions with an indication of qualifications in accordance with the employer's staffing table, functional duties, job descriptions);
4) the basic rights and obligations of the employee and the employer;
5) the term of the employment contract (for fixed-term employment contracts). If the term of its validity is not specified in the employment contract, the contract is considered concluded for an indefinite period;
6) the mode of work and rest (if it in relation to this employee differs from the general rules established by the employer);
7) terms of remuneration (including the size of the wage rate (salary) of the employee, additional payments, allowances and incentive payments).
Additional conditions are conditions permissible by law that do not affect the very fact of the conclusion of an employment contract and are established by agreement of the parties. The terms of an employment contract cannot worsen the employee's position in comparison with labor legislation, agreements of any level and collective agreements.
Additional conditions may be: the establishment of a probationary period, the obligation to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer; establishment of part-time work, business trips, etc. When concluding an employment contract, by agreement of the parties, a preliminary test may be established in order to verify the employee's compliance with the work entrusted to him. The test condition must be specified in the employment contract and in the order (order) for employment. The term of the preliminary test cannot exceed three months (for a citizen entering the civil service for the first time, by agreement of the parties, a preliminary test may be established for a period of three to six months). This period does not include the period of temporary disability and other periods when the employee was absent from work. The extension of the term established at the conclusion of the employment contract, even with the consent of the employee, is unacceptable. During the pre-trial period, the employee is fully covered by the labor legislation.
A preliminary test is not established for:
1) employees under eighteen years of age;
2) young workers (employees) after graduating from institutions providing vocational education;
3) young specialists after graduating from institutions providing secondary specialized and higher education;
4) disabled people;
5) temporary and seasonal workers;
6) when transferring to work in another locality or to another employer;
7) upon hiring by competition, based on the results of elections;
8) in other cases stipulated by the legislation (for example, in accordance with clause 4 of article 20 of the Law of the Republic of Belarus "On civil service in the Republic of Belarus", a preliminary test is not established when entering the civil service by approval, election, or by competition). If the test period has expired, and the employee continues to work, he is considered to have passed the test and his dismissal is allowed only on a general basis.
An employment relationship begins with the conclusion of an employment contract between an employee and an employer.
Labor contract is an agreement between the employer and the employee that governs their work responsibilities.
The main source that regulates labor relations is the Labor Code of the Russian Federation. Article 57 tells us about the content of the employment contract, we will study it.
Article 57 of the Labor Code of the Russian Federation. Content of the employment contract:
The employment contract specifies:
the surname, name, patronymic of the employee and the name of the employer (surname, name, patronymic of the employer - an individual) who entered into an employment contract;
information about the identity documents of the employee and employer - an individual;
taxpayer identification number (for employers, with the exception of employers who are individuals who are not individual entrepreneurs);
information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is endowed with the appropriate powers;
place and date of the conclusion of the employment contract.
Task 1. Insert the missing words (either orally or in writing if you printed out the recommended file for the lesson).
1. Surname, name, patronymic _________________ and the name of the employer
2. Information about _________________, identifying the employee (passport, military ID)
3. Identification number _________________
4. Information about the representative _________________ who signed the employment contract
5. Place and _________________ of the conclusion of the employment contract
The following conditions are mandatory for inclusion in an employment contract:
place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of an organization located in another locality, - a place of work with an indication of the separate structural unit and its location;
labor function (work according to the position in accordance with the staffing table, profession, specialty with an indication of qualifications; the specific type of work entrusted to the employee).
the date of commencement of work, and in the case when a fixed-term employment contract is concluded, also the period of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with this Code or other federal law;
terms of remuneration (including the size of the wage rate or salary (official salary) of the employee, additional payments, allowances and incentive payments);
working hours and rest hours (if for this employee it differs from the general rules in force for this employer);
guarantees and compensation for work with harmful and (or) hazardous working conditions, if the employee is hired in appropriate conditions, indicating the characteristics of working conditions at the workplace;
conditions that determine, if necessary, the nature of work (mobile, traveling, on the road, other nature of work);
working conditions at the workplace;
a condition on compulsory social insurance of an employee in accordance with this Code and other federal laws;
other conditions in cases provided for by labor legislation and other regulatory legal acts containing labor law norms.
Task 2. Insert the missing words in the list of required information to be included in the employment contract.
1._________________ work
2. Labor _________________ (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; the specific type of work entrusted to the employee)
3. Date _________________ of work
4. Working conditions _________________
5. Working hours _________________ and rest time
6. Warranties and compensations for work with _________________ and (or) hazardous working conditions
7. Conditions that determine, if necessary, _________________ work
8. Conditions _________________ in the workplace
9. Conditions on compulsory _________________ employee insurance
An employment contract may provide additional conditions, in particular:
on clarification of the place of work (indicating the structural unit and its location) and (or) on the workplace;
about the test;
on non-disclosure of secrets protected by law (state, official, commercial and other);
on the employee's obligation to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer;
on the types and conditions of additional insurance for the employee;
on improving the social and living conditions of the employee and his family members;
to clarify, in relation to the working conditions of this employee, the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms;
on additional non-state pension provision for the employee.
Task 3. Insert the missing words into the list of additional conditions for inclusion in the employment contract.
1. About clarification of _________________ work
2. About testing and nondisclosure of legally protected _________________
3. On the obligation of the employee _________________ after training at least the period established by the contract, if the training was carried out at the expense of the employer
4. About the types and conditions of an additional _________________ employee
5. On improving social welfare _________________ of the employee and his family members
6. About clarification in relation to the working conditions of this employee _________________ and the obligations of the employee and the employer
7. About additional non-state _________________ provision of the employee
Task 4. Determine which of the conditions included in the employment contract is mandatory and which is optional.
about the test
terms of remuneration
working hours and rest hours
on the types and conditions of additional employee insurance
on improving the social and living conditions of the employee and his family members
compulsory social insurance condition for the employee
to clarify the rights and obligations of the employee and the employer in relation to the working conditions of this employee
on additional non-state pension provision for an employee
place of work
labor function
on nondisclosure of secrets protected by law
start date
guarantees and compensation for work with harmful and (or) hazardous working conditions
conditions that determine, where necessary, the nature of the work
on the employee's obligation to work after training for at least the period specified in the contract, if the training was carried out at the expense of the employer
Labor contracts are of two types:
1) open-ended employment contracts (concluded for an indefinite period)
2) fixed-term employment contracts (concluded for a specified period, but not more than five years)
An employment contract comes into force on the day it is signed by the employee and the employer. The employee is obliged to start performing work duties from the day specified in the employment contract.
If the day of starting work is not specified in the employment contract, then the employee must start work on the next business day after the entry into force of the contract.
Task 5. Find and correct errors in the text (7 errors in total):
Irina entered into a 7-year fixed-term employment contract with a legal services company. She began to perform her duties the next day after the conclusion of the contract, since it did not indicate a specific date for the commencement of labor duties. As soon as Irina got down to work, her employment contract immediately entered into force. Among the prerequisites, the employment contract included information on testing, on nondisclosure of secrets protected by law, and on the terms of remuneration. The list of additional conditions included the labor function, working conditions at the workplace and working hours and rest.
Read the article of the Labor Code on the age at which it is possible to enter into an employment contract.
Article 63. Age from which it is allowed to conclude an employment contract
The conclusion of an employment contract is allowed with persons who have reached the age of sixteen years, with the exception of cases provided for by this Code and other federal laws.
Persons who have received a general education and have reached the age of fifteen may conclude an employment contract for performing light work that does not harm their health. Persons who have reached the age of fifteen and, in accordance with federal law, have left a general education organization before receiving basic general education, or who have been expelled from the said organization and continue to receive general education in another form of education, may conclude an employment contract to perform light work that does not harm their health and without prejudice to the development of the educational program.
With the written consent of one of the parents (guardian) and the guardianship and trusteeship body, an employment contract may be concluded with a person who has received a general education and has reached the age of fourteen years, to perform light work that does not harm his health, or with a person receiving general education and those who have reached the age of fourteen, to perform light work in their free time from receiving education, which does not harm their health and without prejudice to the development of the educational program.
In cinematographic organizations, theaters, theater and concert organizations, circuses, it is allowed, with the consent of one of the parents (guardian) and the permission of the guardianship and guardianship authority, to conclude an employment contract with persons under the age of fourteen years to participate in the creation and (or) performance (exhibiting) ) works without prejudice to health and moral development. In this case, the employment contract on behalf of the employee is signed by his parent (guardian). The permission of the guardianship and trusteeship body indicates the maximum permissible duration of daily work and other conditions in which the work can be performed.
Task 6. Answer the questions
1. At what age is an employment contract concluded according to the general rule?
2. Is the situation correct: Nadya finished 9th grade, she is preparing to celebrate her 16th birthday magnificently in six months. To do this, she decided to go to work and got a job as a ticket clerk in a night cinema.
3. Is the situation correct: Artyom finished 9th grade, he is 14 years old. He categorically does not want to study, so he dropped out of school and went to work as a waiter, having previously obtained the verbal consent of his parents.
4. In what areas of activity is it allowed to conclude an employment contract for persons under 14 years of age?
When concluding an employment contract, a person has a number of guarantees:
Article 64. Guarantees when concluding an employment contract
Unjustified refusal to conclude an employment contract is prohibited.
Any direct or indirect limitation of rights or the establishment of direct or indirect advantages when concluding an employment contract, depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence ( including the presence or absence of registration at the place of residence or stay), attitude to religion, beliefs, belonging or not belonging to public associations or any social groups, as well as other circumstances not related to the business qualities of employees are not allowed, with the exception of cases in which the right or obligation to establish such restrictions or benefits is provided for by federal laws.
It is forbidden to refuse to conclude an employment contract for women for reasons related to pregnancy or the presence of children.
It is forbidden to refuse to conclude an employment contract for employees invited in writing to work by transfer from another employer, within one month from the date of dismissal from their previous place of work.
At the written request of the person who was refused to conclude an employment contract, the employer is obliged to inform the reason for the refusal in writing no later than within seven working days from the date of such request.
Refusal to conclude an employment contract can be appealed against in court.
Task 7. Comment on the situation:
1. At the end of the interview with the candidate for the position of manager, the director said: "Sorry, you are not suitable for us, we will not conclude an employment contract with you." Then he refused to answer any questions and left the room.
2. The company needed twenty people in its sales department. Fifty women and twenty-one men applied for this position. As a result, twenty men were recruited into the department.
3. At the end of the interview with a candidate for the position of a programmer, the director said: "Sorry, you are not suitable for us. You have a small child, he will be sick and you will constantly take sick leave, and our company needs a person who will perform his duties continuously."
4. Andrey worked in a restaurant of a well-known chain in the city of Moscow. He wanted to move to St. Petersburg and asked to arrange a transfer for him to the same restaurant in St. Petersburg. The transfer was completed on June 5, but when he arrived to draw up a contract for a new place of work on July 10, he was refused.
5.K candidate for the position of manager, to whom the director at the end of the interview said: "Sorry, you are not suitable for us, we will not conclude an employment contract with you," and then quickly left the room, wrote an official request to explain to him the reasons for refusing to conclude an employment contract. What development of events should the candidate expect? What benefit do you think this action might be for the candidate?
6. The woman, who was refused to take on the position of a programmer, filed a lawsuit. Can the court dismiss her claim? If not, what kind of court decision should she expect?
When concluding an employment contract, a person is required to present a number of documents. The Labor Code says the following about this:
Article 65. Documents to be presented when concluding an employment contract
Unless otherwise established by this Code, other federal laws, when concluding an employment contract, a person applying for work presents to the employer:
passport or other identity document;
work book, except for cases when an employment contract is concluded for the first time or an employee starts working on a part-time basis;
insurance certificate of compulsory pension insurance;
military registration documents - for those liable for military service and persons subject to conscription;
a document on education and (or) on qualifications or availability of special knowledge - when applying for a job requiring special knowledge or special training;
a certificate of the presence (absence) of a criminal record and (or) the fact of criminal prosecution or the termination of criminal prosecution on rehabilitating grounds, issued in the manner and in the form established by the federal executive body;
a certificate on whether or not a person is subject to administrative punishment for the consumption of narcotic drugs or psychotropic substances without a doctor's prescription.
Article 69. Medical examination upon conclusion of an employment contract
Persons under the age of eighteen, as well as other persons in cases provided for by this Code and other federal laws, are subject to mandatory preliminary medical examination when concluding an employment contract.
Task 8. Comment on the situation:
1. Arthur, a 38-year-old man, came to conclude an employment contract for the position of an engineer. He brought a passport, work book and a university graduation diploma. What else will he be asked to bring?
2. Rita, a 17-year-old girl, got a job as a seller in a shoe store. What kind of certificate will be required from her, plus to those documents that are usually asked from adults?
Often when hiring people are assigned a probationary period. It is needed for the employer to check the correctness of his choice, and the employee - his capabilities. During the probationary period, workers are paid less than after it ends. Some people are not assigned a probationary period, this is written in article 70 of the Labor Code:
Article 70. Probation for employment
When concluding an employment contract, by agreement of the parties, a condition may be provided for testing the employee in order to verify his compliance with the assigned work.
The absence of a test condition in the employment contract means that the employee was hired without a test.
During the trial period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations.
A test at hiring is not established for:
pregnant women and women with children under the age of one and a half years;
1. persons elected by _________ to fill the relevant position;
2. _________ _________ and women with children under the age of one and a half years;
3. Persons under the age of _________ years;
4. persons who have received _________ _________ education or higher education and _________ applying for work (within _________ after graduation);
5. persons _________ in an elective position for a paid job (for example, the position of mayor or deputy);
6. persons invited to work in the order of _________ from another employer;
7. persons who enter into an employment contract for a period of up to _________ months.
6) the employee's refusal to continue work in connection with a change in the owner of the organization's property, with a change in the jurisdiction (subordination) of the organization or its reorganization, with a change in the type of state or municipal institution
7) the employee's refusal to continue working in connection with a change in the terms of the employment contract determined by the parties;
8) the employee's refusal to transfer to another job that is necessary for him in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation, or the employer does not have an appropriate job;
9) the employee's refusal to transfer to work in another locality together with the employer;
10) circumstances beyond the control of the parties;
11) violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work.
Task 10. Insert the missing words in the sentences (use the printed file)
The grounds for terminating an employment contract are:
1) _________ parties;
2) _________ term of the employment contract;
3) termination of the employment contract on the initiative of _________;
4) termination of the employment contract on the initiative of _________;
5) _________ of an employee, at his request or with his consent, to work for another employer or transfer to elective work;
6) _________ employee from continuing work in connection with a change in the owner of the organization's property;
7) the employee's refusal to continue working in connection with the __________ _________ labor contract;
8) _________ employee from _________ to another job;
9) _________, independent of the will of the parties;
11) violation of _________ conclusion of an employment contract.
A three-year labor contract was concluded with the locksmith Sidorov. After two years, Sidorov decided to quit his job, and he notified the employer about it.writing. The employer refused the locksmith to terminate the employment contract, referring to the fact that there was a year left before the expiration of the contract, which Sidorov must work at the enterprise. Is the employer's refusal legal? Name any two principles on which labor relations in the Russian Federation are based.
Are the following judgments about the employment contract in the Russian Federation correct? A. In accordance with the Labor Code of the Russian Federation, the receipt by an employee of a copy of an employment contract mustbe confirmed by the employee's signature on a copy of the employment contract kept by the employer. B. If the term of its validity is not stipulated in the employment contract, then the contract is deemed to be concluded for five years.
1) only A is true 3) both statements are true
2) only B is true 4) both judgments are wrong
he did not enter into writing with him, the order for hiring was not issued, the record of hiring was not entered in the work record book. to the combing machine, collect the processed down from the container into bags and take it to the sewing workshop located on the second floor. K. did not undergo any preliminary training in the skills of working on a combing machine; he was not instructed in labor protection. It was verbally explained to him that if the chewing machine gets clogged, it must be turned off and cleaned by hand or some other means at hand. On November 27, 2012, when the plaintiff was cleaning the chewing machine, an accident occurred with traumatic amputation of the left hand. The employer refuses to investigate the accident. Did the employer act legally? If not, list which legal provisions have been violated.
1. Citizen K. submitted an application in which she asks to be relieved of her post. Which of the following may be the basis fortermination of the employment contract: a) her own desire; b) the director's refusal to pay her bonuses; c) her desire to retire, since she is 50 years old and she is tired of working; d) a request from the chief to write this statement, since citizen K. is pregnant; e) transfer to another job. Explain your answer. 2. Experts are preparing for release a collection, the working title of which is "Protecting the interests of schoolchildren and students in obtaining education." Comments and recommendations of a professional lawyer should provide practical assistance to the future graduate, including when choosing an educational institution. What results, in your opinion, should be in this guide? Think about what samples of documents you need to include in it? 3. Polish poet and philosopher of the XX century. E. Lets wrote: "A man is also superior to a car in that he knows how to sell himself." Please comment on the statement from the perspective of labor law.
Find in the list below the features of civil legal relations 1. civil legal relations are based on the principle of freedom of contract 2.civil legal relations are based on the principle of equality of the parties 3. Civil legal relations regulate relations in the field of public administration 4. civil legal relations regulate relations between an employer and an employee based on an employment contract 5. civil legal relations arise exclusively as a result of the commission of a crime 6. participants in civil legal relations are: state, legal entities, individuals
537 Alla Semeleva
When an employer wants to change the terms of payment for an employee's work or his mode of work, you first need to try to negotiate with him. If the employee agrees, an additional agreement can be signed in one day. There is no need to wait 2 months to start working in new conditions. But if you cannot convince the employee, then you cannot do without a lengthy procedure.
Article 74 of the Labor Code of the Russian Federation allows the employer to change the terms of the employment contract unilaterally.
But as practice shows, the application of this norm is rather complicated. And this is despite the fact that in Art. 74 of the Labor Code of the Russian Federation, wording was used that would seem to give employers freedom of action. For example, organizational changes often include adjustments to the staffing table in terms of reducing salaries for a number of positions. But the courts consider this approach formal and satisfy the claims of employees who do not agree with the reduction in the level of income. A loss awaits the company even when the work function of the employee was affected during the events. Changing it is guaranteed to lead to the cancellation of the employer's decision. In addition, the application of Art. 74 of the Labor Code of the Russian Federation when canceling allowances and other benefits due to an employee for harmful working conditions. They cannot be canceled, explaining this only by conducting a special assessment in the company. Elimination of benefits is only allowed if it is confirmed that the conditions in the workplace have actually improved.
Switching to new equipment is a reason to change the terms of the contract
Employers often feel that it is enough to provide the employee with a notice to comply with the procedure for changing the terms of the employment contract. But this is not the case. First, you need to check whether the company is actually undergoing organizational and (or) technological changes in working conditions. Without such grounds, it is impossible to start notifying employees. You should also make sure that the adjustment to the provisions of the employment contract is directly related to such changes, and at the same time it is impossible to maintain the employee's previous working conditions.
If at least one of these conditions is not met, the courts, as a rule, recognize the employer's use of Art. 74 of the Labor Code of the Russian Federation. This is confirmed by the rulings of the St. Petersburg City Court dated 07.09.2009 No. 11899, the Leningrad Regional Court dated 23.11.2011 No. 33-5730 / 11, the Magadan Regional Court dated 02.04.2014 in case No. 2-14 / 2014, 33-261 / 2014 ... The basis for such decisions is clause 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 (hereinafter - Resolution No. 2). It explains the principles that make it possible to recognize changes in the terms of an employment contract as unlawful. Examples of organizational and technological changes are contained in Art. 74 of the Labor Code of the Russian Federation and clause 21 of Resolution No. 2. These include changes in technology and production technology, structural reorganization of production, improvement of workplaces on the basis of their certification (it was replaced by a special assessment).
Courts include changes in organizational or technological working conditions:
- structural reorganization, including the merger of companies, the change of the location of the division, the workplace, the organization of new divisions with the redistribution of the subordination of employees and job duties (definitions of the Armed Forces of the Republic of Mordovia dated 03.26.2015 in case No. 33-597 / 2015, the Chelyabinsk Regional Court dated 05.03.2015 on case No. 11-2103 / 2015, Moscow City Court dated March 25, 2015 No. 4g / 8-571);
- changing working hours in order to improve production processes (appellate rulings of the Kaliningrad Regional Court of 23.10.2013 in case No. 33-4694 / 2013, St. Petersburg City Court of 04.12.2014 No. 33-18721 / 2014);
- changes in the operating rules and the introduction of new production equipment (ruling of the Moscow Regional Court dated 09.21.2010 in case No. 33-18182) and others. So, it will be possible to prove the legality of adjusting the terms of the employment contract only if the company has experienced organizational and technological changes in working conditions.
In the event of a dispute, the relationship of these events will be proved by a written feasibility study, service notes, orders and other documentation. Their absence will significantly complicate the process and may lead to the satisfaction of the employee's requirements for reinstatement at work or for the recognition of the introduced changes as illegal.
When can the terms of the employment contract be changed *
- The presence of organizational and (or) technological changes in working conditions
- The relationship between these changes and adjustments to the employment contract
- The impossibility of maintaining the previous conditions of the employment contract in connection with the specified changes
* you need a set of all signs
The results of the special assessment do not always become the reason for changing the terms of the contract.
For harmful and hazardous working conditions at the workplace, employees are entitled to benefits (additional pay, additional vacation or reduced working hours). Previously, employers had to provide all three guarantees, but now the amount of benefits depends on the degree of "harmfulness" of the workplace. In this regard, it is not clear whether the employer has the right to use the results of the special assessment to cancel compensation unilaterally. After all, it is far from always possible to sign an agreement on the reduction of the amount of guarantees with employees voluntarily.
So, changes to labor contracts in accordance with Art. 74 of the Labor Code of the Russian Federation, based on the results of the special assessment, it will not always be justified. Suppose that working conditions remained harmful, but the subclass of working conditions was reduced solely as a result of the application of the new method of special appraisal without any changes in the workplace. For example, due to the exclusion of the absence of natural light from the number of harmful factors. In such a situation, use Art. 74 of the Labor Code of the Russian Federation and it is risky to cancel benefits.
On the one hand, the revision of compensation for harm is possible based on the results of a special assessment, subject to a decrease in the final class (subclass) of working conditions (clause 12 of the Information dated October 28, 2014 "Typical questions and answers on a special assessment of working conditions" (as amended on October 29, 2014) )). The mandatory presence of real improvements is not mentioned. However, the said opinion of the Ministry of Labor should be considered taking into account the provisions of the Labor Code of the Russian Federation and regulations regarding special appraisals. From the standpoint of Art. 74 of the Labor Code of the Russian Federation in the described situation, one can hardly talk about any changes in working conditions. Part 3 of Art. 15 of the Federal Law of December 28, 2013 No. 421-FZ also directs that compensation for harm, which was actually provided to employees as of 01.01.2014, cannot be canceled or reduced if the working conditions at the workplace remained unchanged, which were the basis for the appointment of compensatory measures.
Therefore, the safest option is with a real improvement in working conditions, confirmed by a decrease in the hazard subclass based on the results of a special assessment. After replacing or improving equipment, redistributing the load, etc. the employer has every reason to apply Art. 74 of the Labor Code of the Russian Federation. In practice, such changes do occur, given that several years pass from the moment of certification of workplaces to the completion of a special assessment, during which much changes in production processes.
Decrease in financial performance is not an independent basis for changing the contract
In conditions of economic instability, the question of the legality of changing labor contracts due to a decrease in the company's financial and production indicators is relevant. As a rule, we are talking about a unilateral reduction of the employee's salary.
Courts generally have a negative attitude towards such actions of the employer. So, in one case, due to the lack of work for an employee (the counterparty did not enter into a new contract), the employer, instead of reducing the staff, offered to transfer him to another position. As a result, the court recognized the dismissal under paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation unlawful (appeal ruling of the Moscow City Court dated December 22, 2014 in case No. 33-41558 / 14).
In another case, the court ruled illegal the actions of the employer, which initiated the procedure for changing the terms of the employment contract in connection with a decrease in the volume of work without any organizational or technological changes in working conditions (appeal ruling of the Moscow City Court dated 06.04.2011 in case No. 33-7025).
The actions of the employer to change the size and structure of wages solely due to the difficult economic situation are also recognized by the courts as illegal (appeal ruling of the Arkhangelsk Regional Court dated 04.02.2013 in case No. 33-0671 / 2013).
It should be noted that the use of Art. 74 of the Labor Code of the Russian Federation for the purpose of reducing the number of employees is a fairly common mistake of employers.
For example, in the case considered by the Krasnoyarsk Regional Court, the employer decided to abolish the position held by the employee and offered him to take another position, with a different name. To confirm the reorganization of production, a new staffing table was prepared. However, according to the court, these actions testified to a change in the labor function defined by the contract, and he made an unequivocal conclusion in favor of the employee. The employer had no reason to warn the employee about the change in the terms of the contract, the offer of another job and the subsequent dismissal under paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation (appeal ruling of the Krasnoyarsk Regional Court of 03/17/2014 in case No. 33-1619 / 2014).
Other courts also do not disregard the decisions of employers disguising the layoffs as changing working conditions, and reinstate workers in their positions (appeal rulings of the Irkutsk Regional Court dated 09.09.2014 in case No. 33-7461 / 2014, Moscow City Court dated 16.03.2015 in the case No. 33-7954 / 2015, dated 26.03.2015 in case No. 33-6327 / 2015).
The employer was also unable to prove the existence of changes in the organizational or technological working conditions in the case considered by the Supreme Court of the Russian Federation (determination of 05.16.2014 No. 5-KG14-14). The employee appealed against the dismissal under paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation, the reason for which was the disagreement with the renaming of the position. In addition, the employer planned to reduce job responsibilities and significantly reduce wages. The basis for such decisions was the change in the staffing table. The Supreme Court of the Russian Federation came to the conclusion that the exclusion of one position from the staffing table and the simultaneous inclusion of another in it (with a different functionality and earnings) indicates a reduction in staff. And, of course, in such a situation, we are not talking about changing the terms of the employment contract. As a result, the court found the employer's actions illegal.
Changing the terms of the contract, the labor function must be left the same
Based on Art. 74 of the Labor Code of the Russian Federation, you can change any condition of the employment contract: working hours, place of work (including transfer to another city), terms of remuneration, etc. At the same time, it is not allowed to worsen the position of the employee in comparison with the established collective agreement and (or) agreement. However, under no circumstances should the worker's labor function be changed (part 1, part 8 of article 74 of the Labor Code of the Russian Federation). In other words, the storekeeper should be left with the same duties, and not be charged with cleaning the entire adjacent territory.
When an employer starts such large-scale events, he is most worried about the legality of reducing employees' salaries. Formally, Art. 74 of the Labor Code of the Russian Federation does not prohibit the employer from reducing wages, however, the courts generally have a negative attitude towards the situation when this decision is not related to changes in the employee's duties (the appeal ruling of the Tambov Regional Court of 08.08.2012 in case No. 33-2048 / 2012).
Indeed, it is difficult to imagine that organizational and (or) technological changes in working conditions affect only the terms of remuneration. In addition, it is necessary to take into account Part 1 of Art. 129 of the Labor Code of the Russian Federation, according to which the employee's salary depends on the complexity, quantity and conditions of the work performed.
Therefore, the impossibility of maintaining the same level of remuneration in most cases can only be explained by a decrease in the volume of job duties, a decrease in the complexity and intensity of labor, and other similar reasons. If these circumstances are confirmed, then the employer's chances of a successful resolution of the dispute are significantly increased (cassation ruling of the St. Petersburg City Court dated February 27, 2012 No. 33-2768 / 2012).
When changing job responsibilities, you should make sure that the job function of the employee does not change. Judicial practice varies greatly depending on how much the change in job responsibilities has affected the essence of the labor function.
The labor function is understood as work according to the position in accordance with the staffing table, profession, specialty with an indication of qualifications, the specific type of work entrusted to the employee (part 2 of article 57 of the Labor Code of the Russian Federation). The concept of job duties is not disclosed in the law, however, they, as a rule, mean those specific actions that the employee performs within the framework of the labor function. For example, the labor function of a “HR specialist” implies the following job responsibilities: work with work books, issuing orders for admission, transfers, dismissals and vacations. Whether the adjustment of the job description entailed a change in the labor function and whether the employee's consent to such actions is required, the court will assess in each specific case (definition of the Constitutional Court of the Russian Federation of September 25, 2014 No. 1853-O). But it is hardly possible to speak of a change in the job function of the position of "legal adviser" if, for various reasons, the obligation to conduct claims work was removed from his duties. A similar conclusion should be made in relation to a situation when job duties are only specified.
In the opinion of the courts, the reduction in the scope of official duties does not constitute a change in the employee's labor function. This is confirmed by the rulings of the Yaroslavl Regional Court dated 19.07.2012 in case No. 33-3711 / 2012, the Sverdlovsk Regional Court dated 11.02.2014 in case No. 33-1893 / 2014, the Court of the Jewish Autonomous Region dated 17.10.2014 in case No. 33-542 / 2014, the Moscow City Court from 14.11.2011 in case No. 4g / 4-9268, dated 18.09.2014 in case No. 33-17963 / 2014, dated 02.04.2015 in case No. 33-6829 and others. But a significant change in job duties, especially associated with a change in the name of the position, is likely to be recognized by the court as a change in the job function.
- Russian law is intended not to intimidate, but to assert and protect the freedom (natural and inalienable rights) of a person in all spheres of his life, to help strengthen law and order in society. Therefore, it is necessary to know the laws and learn to respect them.
- Respect for laws means that their requirements are recognized and implemented by a citizen as absolutely necessary, useful for him, other people, and society as a whole. And for this it is necessary to overcome the legal nihilism that is still characteristic of many Russians, to cultivate a modern legal culture - a culture of recognition and protection of law and human rights. This is the only way to achieve self-realization and success in any area of your life.
Document
From the Labor Code of the Russian Federation.
- the surname, name, patronymic of the employee and the name of the employer (surname, name, patronymic of the employer - an individual) who entered into an employment contract.
- place of work (indicating the structural unit);
- start date of work;
- the name of the position, specialty, profession with an indication of qualifications in accordance with the staffing table of the organization or a specific job function. If, in accordance with federal laws, the provision of benefits or the existence of restrictions is associated with the performance of work in certain positions, specialties or professions, then the names of these positions, specialties or professions and qualification requirements for them must correspond to the names and requirements specified in the qualification reference books approved in accordance with the procedure established by the Government of the Russian Federation;
- the rights and obligations of the employee;
- the rights and obligations of the employer;
- characteristics of working conditions, compensation and benefits to employees for work in difficult, harmful and (or) dangerous conditions;
- the mode of work and rest (if it in relation to this employee differs from the general rules established in the organization);
- terms of remuneration (including the size of the wage rate or the official salary of the employee, additional payments, allowances and incentive payments);
- types and conditions of social insurance directly related to work.
Article 57.
The essential terms of the employment contract are:
Questions and tasks to the document
- Comment on the terms of the employment contract.
- Based on the text of the paragraph, reveal the rights and obligations of the employee, as well as the rights and obligations of the employer.
- What are the general rules for work and rest? Use the paragraph material in your answer.
- What is the significance of the fact that the law sets out the terms of the employment contract in detail?
Self-test questions
- What are the general features and what are the specific features of the branches of Russian law?
- What is the difference between an employment contract and civil law contracts? Please explain your answer with specific examples.
- What are the similarities and main differences between an offense and a crime?
- How do you understand the provision that Russian law is designed to become a measure of freedom and justice?
Tasks
- Citizen K. decided to enter into legal marriage with his cousin. Do you think this marriage will be registered? Explain your answer
- After 15 years of marriage, the couple signed a marriage contract to change the legal regime of joint ownership. Are the spouses' actions legal? Explain the answer.
- Find examples in periodicals that illustrate offenses in Russia. Define the types of these offenses.
- Prepare for a class discussion on "Are there socially safe offenses?"
The thoughts of the wise
"The people must defend the law as their stronghold, as their protective wall."
Heraclitus (late VI - early V century BC), ancient Greek philosopher
