labor dispute. Labor disputes Types of labor disputes by the method of their resolution

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 Russian Federation(Article 37) and labor legislation recognizes the right of an employee to resolve individual and collective labor disputes using the methods of their resolution established by federal law, 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 its representatives) and the employee (employees) on regulatory issues 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, the employer's failure to comply with 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, issuing delay work book and 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 secured technological process or requires employees to complete all production tasks at a pace that exceeds 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 violation of relations for vocational training, retraining and advanced training with 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 laws, recovers from an employee the full damage in excess of his average salary, by his 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 do not agree 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 the violation of relations on compulsory 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:

• claim 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: “ State Inspectorate Labor 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 define 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 there is the root cause of the dispute, it is labor law violation or conscientious misrepresentation 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 individual cases(for example, Article 235 of the Labor Code of the Russian Federation, which provides for compensation by the employer for damage to the personal property of the employee);
• sending a statement on the essence of the disagreement for the purpose of 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);
• execution of the decision.

In a labor dispute, the legislator determines important point that these are unresolved 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 by this method, then the conflict develops into a labor dispute if one of the parties, in the prescribed manner, specifically to resolve the conflict, applies 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 enter into labor 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 that may be the subject of consideration and resolution by courts of general jurisdiction are divided into collective and individual.

Collective labor dispute - an unsettled disagreement between employees (and their representatives) and employers (their representatives) regarding the establishment and change of working conditions (including wages), the conclusion, amendment and implementation of collective agreements, agreements, as well as in connection with the refusal of the employer to take into account the opinion of the elected representative body of employees when adopting acts containing labor law norms in the organization (Article 398 of the Labor Code of the Russian Federation).

Collective labor disputes (on the recognition of a strike as illegal) are within the jurisdiction of the supreme courts of the republics, territorial, regional courts, courts of cities of federal significance, courts of an autonomous region and autonomous districts. These courts consider collective labor disputes at the request of the prosecutor or the employer (Article 413 of the Labor Code of the Russian Federation).

Almost all individual labor disputes fall within the competence of the justice of the peace. The exception is cases of reinstatement at work, which are considered at first instance by district courts (clause 6, part 1, article 23 of the Code of Civil Procedure of the Russian Federation).

Individual labor dispute - unresolved disagreements between the employer and the employee on the application of laws or other regulatory legal acts containing labor law norms, collective agreement, agreement, employment contract, including the establishment or change individual conditions labor, which are declared to the body for the consideration of individual labor disputes (Article 381 of the Labor Code of the Russian Federation).

This concept of an individual labor dispute has significantly expanded the possibilities of bodies called upon to consider labor disputes, including justices of the peace, to protect the labor rights of a particular employee.

A very important addition regarding the signs of a labor dispute is contained in Part 2 of Art. 381 of the Labor Code of the Russian Federation, according to which an individual labor dispute is recognized not only as a dispute between an employee and an employer, but also between an employer and a person who previously had an employment relationship with this employer, as well as a person who expressed a desire to conclude an employment contract with the employer, in case of refusal by the employer in the conclusion of an employment contract.

The parties in civil proceedings are the plaintiff and the defendant.

The plaintiff is a person in defense of whose subjective rights and legally protected interests a case has been initiated, including those arising from labor relations; defendant - a person brought by the court to answer on demand, statement of the plaintiff. In addition, the persons participating in the case include third parties, the prosecutor, trade unions and other bodies.

One of the features of court cases on labor disputes is that almost always their initiator (plaintiff) is an employee, and the employer is involved as a defendant. This is due to the specifics of labor relations, which are characterized by the subordination of the employee to the authority of the administration, the binding decisions and instructions of the administration for subordinate employees.

The employer draws up the employee's employment, makes entries in the work book, organizes labor process and provides the conditions necessary for work, pays wages, provides vacations and days off, transfers to another job, brings the employee to disciplinary responsibility, formalizes dismissal from work and has the right to terminate the contract with the employee on his own initiative.

The employee has almost no opportunity to influence the will of the employer.

If in a conflict situation the employee decides to take a principled position, does not want to give in to the manager and put up with his decision, he goes to court with a lawsuit.

Any decision of the manager related to the application of labor laws, collective or labor agreements, which, according to the employee, violates his rights, may become the subject of a labor dispute.

A labor dispute can be considered both by a labor dispute commission existing at an enterprise, organization, and in court in accordance with Art. 382, part 2 of Art. 390, Art. 391 of the Labor Code of the Russian Federation.

At the same time, the judge must take into account that the out-of-court procedure for resolving labor disputes is not mandatory. In accordance with Art. 46 of the Constitution of the Russian Federation, everyone is guaranteed the right to judicial protection, and the Labor Code of the Russian Federation does not contain provisions on the mandatory preliminary out-of-court procedure for resolving a labor dispute by a labor dispute commission. A person who believes that his rights have been violated, at his own discretion, chooses the method of resolving an individual labor dispute and has the right to either initially apply to the labor dispute commission (CTC) or immediately to the court.

The jurisdiction of the justice of the peace includes cases of individual labor disputes, with the exception of cases on reinstatement and cases on the resolution of collective labor disputes. In particular, he considers cases on claims: on changing the date and wording of the reasons for dismissal; about the withdrawal disciplinary action; on payment of unaccrued (if there is a dispute) and accrued, on unpaid wages; on the recovery from the employee of damage caused to the property of the enterprise, institution, organization; on the recognition of the transfer to another job as illegal, since in this case the employment relationship between the employee and the employer does not terminate. At the same time, it should be taken into account that a labor dispute that arose in connection with a refusal to hire a job is not a dispute about reinstatement, since it arises between the employer and the person who has expressed a desire to conclude an employment contract, and not between the employer and the person who previously in an employment relationship with him.

The Supreme Court of the Russian Federation clarified that the justice of the peace does not have jurisdiction not only in cases of reinstatement, but also in cases derived from demands for reinstatement. In particular, they include cases of compensation for moral damage caused by illegal dismissal.

Cases on property disputes arising from labor relations are within the jurisdiction of a justice of the peace, regardless of the value of the claim.

Also, the justice of the peace does not have jurisdiction over disputes about establishing new or changing existing working conditions. The judge cannot consider the demand of the employee for an increase in his salary or for the establishment of part-time work for him, for an increase tariff category or an increase in the duration of the vacation, if the law, collective or labor agreement, local normative act does not place an obligation on the employer.

An employee is not entitled to claim in court the payment of a bonus to him that is not provided for by the regulation on bonuses adopted and in force at this enterprise.

If the employee nevertheless applied to the court with such a claim, the judge issues a ruling to refuse to accept the statement of claim on the grounds that it is not subject to consideration and resolution in civil proceedings.

It should be noted that the new Labor Code of the Russian Federation contains a provision on the prohibition of discrimination in the sphere of labor. According to part 3 of Art. 3 of the Labor Code of the Russian Federation, persons who believe that they have been discriminated against have the right to apply to the federal labor inspectorate and (or) to the court with an application for the restoration of violated rights, compensation for material damage and compensation for moral damage.

The initiative to initiate a labor case in court belongs to: the employee; the prosecutor; employer (organization of any legal form or individual); body government controlled; union.

Acceptance by the justice of the peace of the statement of claim is allowed if the plaintiff observes the procedure established by the Code of Civil Procedure of the Russian Federation.

Claims for labor disputes are presented to the justice of the peace at the place of residence of the defendant, and a claim against a legal entity - at the location of the body legal entity. Claims for damages can also be filed at the place where the damage was caused.

When an application is received by the court on a dispute subject to preliminary consideration by the CCC, the judge must require an extract from the minutes of the CCC meeting on this dispute.

One of the conditions for accepting a claim for consideration is the compliance of the form and content of the application with the established requirements.

The claim must indicate:

The name of the court to which the application is submitted;

The name of the plaintiff, his place of residence or his location (for a legal entity), as well as the name of the representative, his address, if the application is submitted by a representative;

The name of the defendant, his place of residence or his location (for a legal entity);

Circumstances on which the plaintiff bases his claim, and evidence confirming the circumstances stated by the plaintiff;

Claimant's claim;

The value of the claim, if the claim is subject to evaluation;

List of documents attached to the application. The application is signed by the plaintiff or his representative, a power of attorney or other document certifying the authority of the representative is attached to it.

Attached to the claim are:

Its copies in accordance with the number of defendants and third parties;

A document confirming the payment of the state fee;

A power of attorney or other document certifying the authority of the plaintiff's representative;

Documents confirming the circumstances on which the plaintiff bases his claims, copies of these documents for the defendants and third parties, if they do not have copies;

Evidence confirming the implementation of the mandatory pre-trial procedure for resolving the dispute, if such a procedure is provided for by federal law or an agreement;

Calculation of the exacted or contested amount of money, signed by the plaintiff, his representative, with copies in accordance with the number of defendants and third parties.

The judge, within five days from the date of receipt of the statement of claim by the court, is obliged to consider the issue of its acceptance for court proceedings. The judge issues a ruling on accepting the application for proceedings.

The statement of claim is submitted to the court with copies according to the number of defendants. Depending on the complexity of the case, the court may order the plaintiff to submit copies of the documents attached to the statement of claim.

In case of violation of these requirements, as well as requirements for the payment of state duty, the judge issues a ruling on leaving the statement of claim without movement, notifying the plaintiff about this and giving him a period to correct the shortcomings. If the plaintiff fulfills the instructions of the judge within the prescribed period, the statement of claim is considered filed on the day of its initial submission to the court. Otherwise, the application is considered not submitted and returned to the claimant.

The judge has the right to refuse to accept an application if:

The application is not subject to consideration in the courts;

The person concerned, who applied to the court, did not comply statutory the procedure for preliminary extrajudicial resolution of cases of this category;

There is a court decision or a court decision that has entered into force, issued in a dispute between the same parties, on the same subject and on the same grounds, on accepting the plaintiff's refusal of the claim or on approving the settlement agreement of the parties;

In the proceedings of the court there is a case on a dispute between the same parties, on the same subject and on the same grounds;

The case is not within the jurisdiction of this court;

The application was submitted by an incompetent person;

The application on behalf of the interested person was submitted by a person who does not have the authority to conduct the case.

The list of grounds is exhaustive. The judge, refusing to accept the application, issues a reasoned ruling on this, returns it to the applicant with the documents submitted by him. These rulings may be appealed in cassation by filing a private complaint by the person who was denied acceptance of the application, or by bringing a private protest to the relevant prosecutor.

When accepting a statement of claim, the judge must check whether the given dispute is within the jurisdiction of the justice of the peace, whether the claim was filed by the proper person, establish substantive legal requirements, whether the person who filed the claim was in an employment relationship with the defendant, whether the deadlines for applying to the court for the protection of his rights under Art. 392 of the Labor Code of the Russian Federation.

When applying to the court, it is necessary to comply with the deadlines established by Art. 392 of the Labor Code of the Russian Federation, according to which the employee has the right to apply to the court within three months from the day he learned or should have learned about the violation of his right in disputes about dismissal - within one month from the date he was served with a copy of the dismissal order or from the date of issue of the work book. The employer has the right to apply to the court on disputes on compensation for damage caused by the employee to the organization within one year from the date of discovery of the damage caused. Employees applying to the court are exempted from paying duties and court costs (Article 393 of the Labor Code of the Russian Federation).

When skipping for good reasons, the deadlines established by Art. 392 of the Labor Code of the Russian Federation, they can be restored by a judge. The judge is not entitled to refuse to accept the statement of claim on the grounds of missing the deadline for filing a claim. If the reasons for missing the term are recognized as valid, the court may restore this term, which must be indicated in the decision. If the court, having examined the materials of the case, establishes that the deadline for appeal has been missed for an unexcused reason, it shall dismiss the claim.

After accepting an application for a labor dispute, the judge must properly prepare the case for trial. The Code of Civil Procedure of the Russian Federation forms the following tasks of preparing a case for trial:

Clarification of the circumstances that are important for the correct resolution of the case;

Determining the legal relationship of the parties and the law that should be followed. Considering labor disputes, the court is guided by the norms of both labor and civil procedural law; the judge must comply with the decision of the Supreme Court of the Russian Federation on labor disputes;

Resolution of the issue of the composition of the persons participating in the case;

Determining the evidence each party must provide in support of its assertions.

When preparing a case for trial, the judge:

Explains to the parties their procedural rights and obligations;

Interrogates the plaintiff or his representative on the merits of the stated claims and proposes, if necessary, to submit additional evidence within a certain period;

Interrogates the defendant on the circumstances of the case, finds out what objections there are regarding the claim and what evidence these objections can be confirmed;

Resolves the issue of co-plaintiffs, co-defendants and third parties joining the case without independent claims regarding the subject of the dispute, and also resolves issues of replacing an improper defendant, joining and separating claims;

Takes measures for the parties to conclude a settlement agreement and explains to the parties their right to apply for dispute resolution to an arbitration court and the consequences of such actions;

Notifies the time and place of the trial of the case of citizens or organizations interested in its outcome;

Resolves the issue of calling witnesses;

Appoints an examination and an expert to conduct it, and also resolves the issue of involving a specialist, a translator in the process;

At the request of the parties, other persons participating in the case, their representatives, demand from organizations or citizens evidence that the parties or their representatives cannot obtain on their own;

In cases of urgency, conducts, with notice to the persons participating in the case, an on-the-spot inspection of written and material evidence;

Sends letters of request;

Takes measures to secure the claim;

Resolves the issue of holding a preliminary court session, its time and place;

Performs other necessary procedural actions.

The judge sends or hands over to the defendant copies of the application and the documents attached to it, substantiating the claim of the plaintiff, and proposes to present evidence in support of his objections within the time period established by him. The judge explains that the defendant's failure to present evidence and objections within the time limit set by the judge does not prevent the consideration of the case based on the evidence available in the case.

In case of systematic opposition of the party to the timely preparation of the case for trial, the judge may recover in favor of the other party compensation for the actual loss of time according to the rules established by Art. 99 Code of Civil Procedure of the Russian Federation.

When preparing the case for trial, it must be borne in mind that in accordance with Part 6 of Art. 152 of the Code of Civil Procedure of the Russian Federation, the objection of the defendant regarding the absence by the plaintiff without good reason of the deadline for applying to the court for resolving an individual labor dispute may be considered by the judge in a preliminary hearing. Having recognized the reasons for missing the deadline as valid, the judge has the right to restore this deadline (part 3 of article 390, part 3 of article 392 of the Labor Code of the Russian Federation). Having established that the deadline for applying to the court was missed without good reason, the judge decides to dismiss the claim precisely on this basis without examining other factual circumstances in the case.

If the defendant made a statement about the plaintiff missing the deadline for applying to the court (parts 1, 2 of article 392 of the Labor Code of the Russian Federation) or the deadline for appealing the decision of the CCC (part 2 of article 390 of the Labor Code of the Russian Federation) after the appointment of the case for trial (art. 153 Code of Civil Procedure of the Russian Federation), it is considered by the judge during the trial.

The purpose of the preliminary court session is to consolidate the procedural actions of the parties committed in preparing the case for trial, to determine the circumstances that are important for the correct consideration and resolution of the case, to determine the sufficiency of evidence in the case, to study the facts of missing the deadlines for applying to the court and the limitation periods.

Consideration of the case on the merits begins with the report of the presiding judge.

In the report, the judge must briefly state: who, to whom and what requirements he stated, their grounds; if there are written objections of the defendant in the case, then their essence is reported; evidence in the case.

A well-written case report not only provides the right direction in the study of factual circumstances, but also helps those present in the courtroom to better understand everything that happens here.

Having finished the report of the case, the presiding judge asks whether the plaintiff supports his claims, whether the defendant recognizes the claims of the plaintiff and whether the parties wish to end the case by concluding a settlement agreement.

According to part 2 of Art. 39 of the Code of Civil Procedure of the Russian Federation, the judge does not accept the recognition of the claim by the defendant and does not approve the settlement agreement if these actions are contrary to the law or violate the rights and legally protected interests of other persons. If the judge does not accept the recognition of the claim by the defendant or does not approve the amicable agreement of the parties, the judge issues a reasoned ruling on this and continues consideration of the case on the merits.

If these administrative actions have not been committed, the judge proceeds to hearing explanations from the persons participating in the case. First, the judge hears the explanations of the plaintiff and the third person participating on his side, then the explanations of the defendant and the third person participating on his side, after that other persons participating in the case give explanations. Prosecutor, representatives of state bodies, bodies local government, organizations, citizens who applied to the court for the protection of the rights and interests of other persons, give explanations first.

Instead of parties and third parties, explanations in court may be given by their representatives. This does not deprive the parties and third parties of the right to give additional explanations, which they may refuse if they believe that the representatives have fully and correctly stated their position on the case.

In order to fully clarify the factual circumstances, the persons participating in the case are given the right to ask each other questions. Questions are asked with the permission of the presiding judge, who must ensure that their content relates to the merits of the case under consideration. Questions that are not relevant to the process should be rejected.

Written explanations of the persons participating in the case, as well as explanations received by the judge in the order of a court order or by providing evidence (Articles 62 and 64 of the Code of Civil Procedure of the Russian Federation), are announced. It is most often necessary to read out the written explanations of the persons participating in the case in cases where the person did not appear at the court session and the court issued a ruling on the consideration of the case in his absence.

After hearing and reading out the explanations of the persons participating in the case, the judge must establish the sequence for further examination of the evidence: the procedure for interrogating witnesses, experts and the examination of other evidence. The judge decides this issue after having previously heard the opinion of the persons participating in the case present in the courtroom.

Most often, the judge begins the examination of evidence by questioning witnesses. Each witness is interrogated separately in the absence of other witnesses who have not yet been interrogated. The interrogated witness remains in the courtroom until the end of the trial, unless the court allows him to leave earlier.

The presiding judge, having established the identity of the witness, explains to him the obligation to tell the court only the truth and warns about criminal liability for refusing to testify and for knowingly giving false evidence. After that, a signature is taken from the witness stating that his duties and responsibilities have been explained to him.

The presiding judge, having revealed the attitude of the witness to the persons participating in the case, invites him to tell everything that he personally knows about the case. The witness sets out his testimony in the form of a free story about the circumstances known to him. The witness may then be asked questions. The first to ask questions is the person on whose application the witness was summoned and his representative, then other persons participating in the case and their representatives. The witness called at the initiative of the judge is the first to be asked questions by the plaintiff. Judges may question the witness at any time. The witness may be interrogated a second time by the judge (Article 177 of the Code of Civil Procedure of the Russian Federation).

There are special rules governing the questioning of a minor witness. According to Art. 179 Code of Civil Procedure of the Russian Federation during the interrogation of witnesses under the age of 14 years, and at the discretion of the judge - and during the interrogation of witnesses aged 14 to 16 years, a teacher is called. If necessary, their parents, adoptive parents, guardians or trustees are called. These persons may, with the permission of the presiding judge, put questions to the witness.

When testifying, a witness may use written materials in cases where the testimony is associated with any digital or other data that is difficult to keep in memory. These materials are presented to the judge and the persons participating in the case, and may be attached to the case by court order.

Testimony of witnesses collected in the manner of a court order (Article 62 of the Code of Civil Procedure of the Russian Federation), in the manner of securing evidence (Article 64 of the Code of Civil Procedure of the Russian Federation) or in the manner prescribed by Part 1 of Art. 70, Art. 170 Code of Civil Procedure of the Russian Federation, are announced at the hearing.

Written evidence is also examined by means of an announcement. According to Art. 181 Code of Civil Procedure of the Russian Federation written evidence or protocols of their inspection, drawn up in the manner prescribed by Art. 62, 64, paragraph 9, part 1, art. 150 Code of Civil Procedure of the Russian Federation, are announced at the hearing. Having read out the written evidence, the presiding judge must present them to the persons participating in the case, representatives, and, if necessary, to experts, specialists and witnesses. After that, the persons participating in the case may give explanations regarding the content and form of the said evidence.

Written and physical evidence that is impossible or difficult to deliver to the court shall be examined and examined at their location or in another place determined by the court. The court shall issue a ruling on the performance of an on-site inspection.

In the event of a statement that the evidence available in the case is false, the judge may appoint an expert examination to verify this statement or invite the parties to submit other evidence.

Having established that the submitted evidence does not sufficiently confirm the claims of the plaintiff or the objections of the defendant, or does not contain other necessary data that the parties cannot fill in, the judge has the right to invite them to submit additional evidence, and in cases where the presentation of such evidence is difficult for the named persons, at their request, requires from citizens or organizations, written and material evidence (part 3 of article 50, part 8 of article 142 of the Code of Civil Procedure of the Russian Federation).

According to the current Code of Civil Procedure of the Russian Federation, if necessary, a judge may involve specialists to obtain advice, explanations and provide direct technical assistance (photography, drawing up plans and diagrams, sampling for examination, property valuation). The need for this may arise when examining written or material evidence, listening to sound recordings, watching video recordings, when appointing an expert examination, interrogating witnesses, taking measures to secure evidence, etc.

A person summoned as a specialist is obliged to appear in court, answer questions posed by the judge, give oral or written advice and explanations, and, if necessary, provide technical assistance to the court.

The specialist gives advice to the judge orally or in writing, based on professional knowledge and type of activity, without conducting special studies, appointed by court order.

After examining all the evidence, the presiding judge gives the floor to the prosecutor, the representative of the government agency and the local government participating in the process in accordance with Part 3 of Art. 45 and Art. 47 Code of Civil Procedure of the Russian Federation.

Then the judge hears the arguments of the parties.

If the judge, during or after the judicial debate, considers it necessary to clarify new circumstances relevant to the case, or to examine new evidence, he shall issue a ruling on resuming the consideration of the case on the merits. After the end of the consideration of the case on the merits, the judicial debate takes place in general order.

After the debate, the presiding judge announces that the court retires to the deliberation room to make a decision.

The decision is made in the manner prescribed by law. This procedure not only guarantees the independence of judges in issuing a ruling, but also serves as an indispensable condition for issuing a lawful and reasoned decision.

The head of the organization bears full liability for direct actual damage caused to the organization (Article 277 of the Labor Code). The Supreme Court points out that since the full liability of the head of the organization is established by law, the employer has the right to demand compensation for damage in full, regardless of whether the contract between the organization and the head contains such liability or not. At the same time, the issue of the amount of compensation for damage (direct actual damage, losses) is resolved on the basis of the federal law, in accordance with which the head is liable (for example, on the basis of Article 277 of the Labor Code, or paragraph 2 of Article 25 federal law"On state and municipal unitary enterprises»).

The Supreme Court also emphasizes that in Russia full financial responsibility can be assigned to the deputy head of the organization or the chief accountant, but only on condition that this is established by the employment contract (part 2 of article 243 of the Labor Code). If the employment contract does not provide that the said persons shall bear material liability in full in the event of damage, then in the absence of other grounds giving the right to bring these persons to such liability, they may be liable only within the limits of their average monthly earnings.

17. Labor disputes

For more on collective labor disputes, see the sections above on Trade Unions and Collective Bargaining and ‘Trade Unions and Collective Labor Disputes’ above.

Individual labor disputes that have not been resolved through negotiations by the parties may be referred to the labor dispute commission for consideration. Employees who are still employed or have already been laid off are eligible to be plaintiffs in such cases. Candidates for a position who have been denied employment may also file a claim.

Commissions for Labor Disputes

Commissions on labor disputes are formed individually in each company by representatives of employees and the employer. The creation of a commission is not mandatory requirement of the law, but if the employer has received a proposal in writing to create a commission on labor disputes (or vice versa - the employee), he has no right to refuse (Article 384 of the Labor Code). If such a commission is not established in specific company, then disputes are immediately sent to the courts.

The Labor Disputes Commission has the right to consider labor disputes that are not within the exclusive competence of the courts (Article 391 of the Labor Code).

An employee or an employer has the right to appeal against the decision of the commission on labor disputes in court within ten days from the date of handing him a copy of the decision of the commission. In case of omission for valid reasons due date the court may restore this period. If an individual labor dispute is not considered by the labor dispute commission within ten days, the employee has the right to transfer its consideration to the court (Article 390 of the Labor Code).

The decision of the commission, which has entered into legal force, must be executed within 3 days. In case of non-execution of the decision of the commission voluntarily, the commission issues a certificate to the employee, which is an executive document. An employee may apply for a certificate within one month from the date of the decision of the labor dispute commission.

The certificate is presented to the bailiff no later than three months from the date of its receipt (Article 389 of the Labor Code).

Courts

The courts consider individual labor disputes based on the statements of the employee, employer or trade union, when they do not agree with the decision of the labor dispute commission or when the employee goes to court, bypassing the labor dispute commission, as well as on the application of the prosecutor, if the decision of the labor dispute commission does not comply with labor legislation and other acts containing labor law norms (Article 391 of the Labor Code). Consideration of all types of labor disputes falls within the competence of the courts of general jurisdiction, and not arbitration courts.

Only the court can consider disputes on the application:

Employee:

• about reinstatement
• about changing the date and wording of the reason for dismissal
• about transferring to another job
• on payment for the time of forced absenteeism or on the payment of the difference in wages for the time of performing lower-paid work
• about unlawful actions of the employer in the processing and protection of personal data of the employee;
• about denial of employment.

Employer:

• on compensation by the employee for damage caused to the employer

• Persons working under an employment contract with employers - individuals who are not individual entrepreneurs

• Workers of religious organizations

• Individuals who feel they have been discriminated against.

All claims filed after July 30, 2008 are heard by the district courts. Previously, some of them were considered by magistrates.

Employees are not required to pay state fees in cases related to labor disputes (Article 333.36 of the Tax Code). Consequently, the barrier to start consideration of labor disputes in the courts is quite low.

In general, jurisprudence (at least published decisions) is viewed with a strong bias in favor of employees.

The employer needs to keep in mind that violation of the labor rights of an employee may result in the recovery of compensation for moral damage from him (Articles 237, 394 of the Labor Code, see also Resolution of the Plenum of the Supreme Court of the Russian Federation of December 20, 1994 N 10 “Some issues of application of legislation on compensation for moral damage "). It should be noted that the Supreme Court proceeds from the presumption of non-pecuniary damage, i.e., according to the court, a violation of an employee's rights inevitably entails moral and/or physical suffering, which entitles him to monetary compensation for moral damage.

Thus, the only thing that can be disputed in such cases is the degree of suffering that entitles to more or less compensation, but not non-pecuniary damage per se.

P. 57 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” // Russian newspaper. No. 297. December 31, 2006.

Decree of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52 “On the application by the courts of legislation governing the liability of employees for damage caused to the employer” / / Rossiyskaya Gazeta. N. 268, 11/29/2006.

Federal Law of 07.07.2003 N 126-FZ “On Communications” // Collected Legislation of the Russian Federation. 2003, N. 28, art. 2895.

Decree of the Government of the Russian Federation of November 14, 2002 N 823 // Collection of Legislation of the Russian Federation. 2002, N. 47, art. 4678.

Decree of the Ministry of Labor of the Russian Federation of December 31, 2002 N 85 // Rossiyskaya Gazeta, N. 25, 08.02.2003.

Clause 5 of the Decree of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52 “On the application by the courts of legislation governing the liability of employees for damage caused to the employer” / / Rossiyskaya Gazeta. N. 268, 11/29/2006.

P.p. 9-10 Decisions of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52 “On the application by the courts of legislation governing the material liability of employees for damage caused to the employer” / / Rossiyskaya Gazeta. N. 268, 11/29/2006.

Federal Law of November 14, 2002 N 161-FZ “On State and Municipal Unitary Enterprises” // Collection of Legislation of the Russian Federation. 2002, N. 48, Art. 4746.

Federal Law of July 22, 2008 N 147-FZ // Collection of Legislation of the Russian Federation. 2008, N. 30 (part 1), art. 3603.

Decree of the Plenum of the Supreme Court of the Russian Federation of December 20, 1994 N 10 “Some questions of the application of legislation on compensation for moral damage” / / Rossiyskaya Gazeta, N. 29, 08.02.1995.

"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. The conditions for the emergence of employee liability and disciplinary sanctions are in the practice of Russian reality.

To date, two legal regimes for the regulation of labor relations have developed in the economy: written labor law for state (budget) 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<1>. Trade union organizations are usually not created at small and medium-sized enterprises, 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 disciplinary responsibility employee, represent a disagreement between the employee, in respect of which a disciplinary sanction was applied, and the employer, who made the corresponding 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. Level labor discipline reduces unorganized leisure, 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 leads to the complexity of the perception of labor legislation for the employee and the employer.

Note. Due to the fact that 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 terminating an 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) // Judicial practice in 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) // Judicial Practice for Considering Cases on 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 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 have gone to court if the Labor Code of the Russian Federation contained not only indicative list actions considered as immoral offenses, but also an indication of the inadmissibility of dismissal on the basis of overall assessment behavior of an employee in a team and at home, or on the basis of non-specific 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, violation of the right of another subject of this legal relationship"<14>. At the same time, a dispute about the legality of imposing a disciplinary sanction may also arise if one side of the employment relationship acted within the law, and the other side assessed these actions as unlawful (the employer reprimanded the employee for being late for work, and the employee believes that his punished unfairly, as being late was caused 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 prospects for the development of legal regulation in the Russian Federation: Monograph. Omsk, 2005, p. 182.
<16>There. S. 184.

IN scientific literature attention is drawn 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. "High inflation, over-regulation economic relations contrary to the laws of management in market conditions, it leads to a constant impoverishment of workers, a decrease in their standard of living, which, in turn, causes the need for higher wages, which the employer is often unable to fulfill"<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 be manifested in the guilty actions of the employer, who violates labor law due to a low legal culture, and in the actions of the employee, when he disputes the employer's lawful actions. On the part of the employee, a negative attitude to labor 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. November 25, 2002 Iron and Steel Works"K. at the checkpoint of the plant was detained 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 the medical report, 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

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 enshrines 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 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 specific in a specific legal relationship to resolve a labor dispute. These are violations of certain rights of an employee or non-compliance with his obligations to the enterprise (for example, when he is financially liable for the damage caused).

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. Their total number may decrease, 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.

The main regulatory acts 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). The Labor Code of the Russian Federation, adopted by the State Duma on December 21, 2001, is one of the most important normative acts regulating the consideration of labor disputes. 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 a general manner (the commission on labor disputes is a mandatory pre-trial stage) and 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 of small and medium-sized enterprises exacerbates the problem of protecting legal rights 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 state 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 Labor Code RF: “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 during 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 carries out his labor activity for an employer - a small business entity, who has not found 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 report the decision to the representative body of employees 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 conditions reached agreement, the workers have one more remedy - 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. At 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 No. 10 "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. A 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 ...

1. Labor disputes (14)

   Abstract >> State and law

   About the permission of individual labor disputes, let's start with the concept labor spore in general and individual labor spore, in particular. 1.Customized labor disputes Individual labor disputes- this...

2. Labor disputes (11)

   Article >> State and Law

   Trade unions in resolution labor disputes 2.1. Typology labor disputes Typology labor disputes- the initial beginning of the organization and functioning labor justice, elections...

3. Labor disputes 2 Essence labor

   Coursework >> State and Law

   ... labor disputes WAYS TO RESOLUTION INDIVIDUAL LABOR SPORE. Individual labor disputes reviewed by committees labor disputes and courts (art. 382 Labor ...