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Consideration of a collective labor dispute in labor arbitration. Conditions for the creation of labor arbitration

Labor arbitration is one of three possible options for the pre-trial development of a labor dispute. Labor arbitration is a temporary body created to consider a specific labor dispute if the parties used other procedures (adhoc).

Since the labor arbitration is established as an independent body for resolving a labor dispute, it cannot include representatives of employees and employers involved in this dispute.

Like all other forms of conciliation procedures, it is, as a rule, voluntary in nature, since it is created when two conditions are present simultaneously: the consent of the parties to consider the dispute in labor arbitration and the agreement of the parties in writing on the mandatory implementation of arbitration decisions. Safarova E. Labor disputes: individual and collective // Labor Law. 2010. No. 11. pp. 91-102

The voluntary nature of labor arbitration is manifested in the fact that it can be created only by agreement of the parties. An exception is provided for organizations in which strikes are prohibited or restricted by law, the creation of labor arbitration is mandatory (see Part 7 of Article 404, Parts 1 and 2 of Article 413 of the Labor Code of the Russian Federation).

Within the meaning of Art. 404 of the Labor Code of the Russian Federation and in accordance with the provisions of ILO Recommendation No. 92, any of the parties may take the initiative and propose to proceed to the consideration of the dispute in labor arbitration, but it is created jointly by the parties. It is impossible to form a labor arbitration without the participation of the employer (if he evades the continuation of conciliation procedures).

At the same time, in order to create labor arbitration, it is necessary to apply to Federal Service on labor and employment (Rostrud).

The procedure for creating a labor arbitration may begin to be implemented in cases provided for by law: Izbienova T.A. Some issues of the participation of employees' representatives in the resolution of collective labor disputes// Labor law. 2011. №2. pp. 51-63

if agreement is not reached in the conciliation commission (part 8 of article 402 of the Labor Code of the Russian Federation);

in the event that one of the parties to the labor dispute evades participation in the creation or work of the conciliation commission (part 1 of article 406 of the Labor Code of the Russian Federation);

in the event that the parties to the labor dispute deliberately choose the option of considering it in labor arbitration, bypassing the stage of consideration with the participation of an intermediary;

if at the first stage of consideration of a labor dispute (three working days) the parties did not come to an agreement on his candidacy (part 1 of article 403 of the Labor Code of the Russian Federation);

if the participation of the mediator in the consideration of the labor dispute did not bring results and the parties still have inconsistent positions;

if its creation is mandatory - for certain categories of workers who do not have the right to strike (Article 413 of the Labor Code of the Russian Federation).

Representatives of employees and representatives of the employer interested in resolving the dispute and Rostrud participate in the formation of labor arbitration, since this state body is specifically named as one of the participants in the formation of labor arbitration.

He, on an equal footing with the parties to the dispute, participates both in the creation of labor arbitration, and in determining its composition, developing regulations, and determining powers. Thus, labor arbitration is actually a kind of "tripartite" body that can resolve a collective labor dispute.

The parties have a maximum of eight working days to create a labor arbitration and consider the dispute in it: three days from the end of the consideration of the labor dispute by the conciliation commission or mediator to create arbitration and five days to consider the dispute. Representatives of the parties to the dispute participate in the consideration of a labor dispute in labor arbitration. Mavrin S.P., Zhilin, V.V. Korobchenko Handbook of the Judge labor disputes: educational and practical guide / G, etc.; ed. S.P. Mavrina. Moscow: Prospekt, 2011

The law establishes only two requirements regarding the procedure for the work of labor arbitration. Firstly, he must consider a collective labor dispute with the participation of representatives of the parties (part 4 of article 404 of the Labor Code of the Russian Federation), therefore, holding meetings in the absence of one or both parties is unacceptable. There can be only one exception to this rule: when a representative of employees or a representative of the employer requested in writing to resolve the dispute without him, the other party agreed, and the arbitration considered this possible.

The second requirement concerns the subject matter of the dispute. Since the labor arbitration is a conciliation body created to resolve a specific collective labor dispute, and is, as a rule, the second body trying to reconcile the parties, only a protocol of disagreements drawn up by the conciliation commission or mediator together with the parties to the dispute is submitted for consideration.

This may be a protocol of disagreements drawn up during collective bargaining, or the demands of employees.

The subject of the dispute is a range of issues on which the parties could not reach an agreement in the process of resolving the dispute. It can only be narrowed by reaching certain compromises. It is unacceptable to submit for discussion in labor arbitration claims that have not been considered by the conciliation commission.

The procedure for considering a collective dispute by labor arbitration consists of several stages: Safarova E. Labor disputes: individual and collective // Labor Law. 2010. No. 11. pp. 91-102

study of documents and materials submitted by the parties;

hearing representatives of the parties;

hearing witnesses and experts, if necessary;

development of a decision on the merits of a labor dispute.

It should be noted that today the contradiction in the name of the act adopted by the labor arbitration has been corrected: now in all parts of Art. 404 and further in the Labor Code of the Russian Federation, this act is called a decision.

The result of consideration of a collective labor dispute in labor arbitration is the adoption of a decision to resolve the dispute. It is drawn up in writing, signed by labor arbitrators and transferred to the parties to the labor dispute.

For the duration of the resolution of a labor dispute, arbitrators are released from their main job while maintaining their average earnings (see Article 405 of the Labor Code of the Russian Federation).

Labor arbitrators are obliged to keep state, official and commercial secrets that became known to them during the implementation of conciliation procedures.

In order to provide practical assistance to territorial bodies for the settlement of labor disputes, federal divisions of the executive authorities of the constituent entities of the Russian Federation, which are entrusted with the functions of settling labor disputes, Resolution of the Ministry of Labor of Russia No. 59 approved Recommendations on the organization of work on the consideration of a labor dispute in labor arbitration. They can be applied to the extent that they do not contradict the current version of the Labor Code of the Russian Federation.

Labor arbitration is a body for the consideration of a collective labor dispute. Temporary labor arbitration is created by the parties to a collective labor dispute together with the relevant government agency on the settlement of collective labor disputes to consider this collective labor dispute. By decision of the relevant tripartite commission for the regulation of social and labor relations, a permanent labor arbitration may be created under it to consider and resolve collective labor disputes submitted to it for consideration by agreement of the parties.

Not later than the next working day after the date of drawing up the protocol of disagreements upon completion of consideration of the collective labor dispute with the participation of the mediator, or after the expiration of the period during which the parties to the collective labor dispute must reach an agreement on the candidate for the mediator, or after the protocol on the refusal of the parties or one of the parties of a collective labor dispute from the consideration of a collective labor dispute with the participation of an intermediary, the parties to a collective labor dispute are obliged to negotiate on the consideration of a collective labor dispute in labor arbitration.

If the parties to the collective labor dispute agree to consider the collective labor dispute in labor arbitration, they conclude an appropriate agreement containing a condition on the obligatory implementation by the parties of the decisions of the labor arbitration, after which the parties to the collective labor dispute are obliged to resolve the collective labor dispute at the local level of social partnership within up to two working days, and when resolving a collective labor dispute at other levels of social partnership, within up to four working days, create, together with the relevant state body for the settlement of collective labor disputes, a temporary labor arbitration to consider this collective labor dispute or transfer it for consideration to a permanent labor arbitration , created under the relevant tripartite commission for the regulation of social and labor relations.

The composition and rules of temporary labor arbitration are established by the decision of the employer (representative of employers), the representative of employees and the state body for the settlement of collective labor disputes. In a permanent labor arbitration, the procedure for forming a composition of a labor arbitration to resolve a specific labor dispute and its rules are determined by the provision on permanent labor arbitration (charter of a permanent labor arbitration), approved by the relevant tripartite commission for the regulation of social and labor relations. The federal executive body responsible for the development of public policy and legal regulation in the sphere of labor, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations, may be approved model provision on permanent labor arbitration ( model charter permanent labor arbitration).

A collective labor dispute is considered in labor arbitration with the participation of representatives of the parties to this dispute when resolving a collective labor dispute at the local level of social partnership within up to three working days, and when resolving a collective labor dispute at other levels of social partnership - up to five working days from the day creation of a temporary labor arbitration or transfer of a collective labor dispute for consideration to a permanent labor arbitration.

Labor arbitration considers appeals of the parties to a collective labor dispute; receives Required documents and information relating to this dispute; informs the authorities, if necessary state power and local governments on the possible social consequences of a collective labor dispute; decides on the merits of the collective labor dispute.

The decision of the labor arbitration on the settlement of a collective labor dispute is submitted to the parties to this dispute in writing.

In cases where, in accordance with parts one and two of Article 413 of this Code, a strike cannot be held in order to resolve a collective labor dispute, consideration of the collective labor dispute in labor arbitration is mandatory and the decision of the labor arbitration is binding on the parties, regardless of the agreement of the parties. on this issue. At the same time, if the parties do not come to an agreement on the establishment of a temporary labor arbitration, its composition and rules, or on the transfer of a collective labor dispute for consideration to a permanent labor arbitration, a decision on these issues is made by the relevant state body for the settlement of collective labor disputes.

Labor arbitration is a body for the consideration of a collective labor dispute. Temporary labor arbitration is created by the parties to a collective labor dispute together with the relevant state body for the settlement of collective labor disputes to consider this collective labor dispute. By decision of the relevant tripartite commission for the regulation of social and labor relations, a permanent labor arbitration may be created under it to consider and resolve collective labor disputes submitted to it for consideration by agreement of the parties.

(see text in previous edition)

The composition and rules of temporary labor arbitration are established by the decision of the employer (representative of employers), the representative of employees and the state body for the settlement of collective labor disputes. In a permanent labor arbitration, the procedure for forming a composition of a labor arbitration to resolve a specific labor dispute and its rules are determined by the provision on permanent labor arbitration (charter of a permanent labor arbitration), approved by the relevant tripartite commission for the regulation of social and labor relations. The federal executive body responsible for the development of state policy and legal regulation in the sphere of labor, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations, may approve a standard provision on a permanent labor arbitration (a model charter of a permanent labor arbitration).

(see text in previous edition)

Labor arbitration considers appeals of the parties to a collective labor dispute; receives the necessary documents and information relating to this dispute; informs, if necessary, public authorities and local governments about the possible social consequences of a collective labor dispute; decides on the merits of the collective labor dispute.

(see text in previous edition)

Labor arbitration is a body for the consideration of a collective labor dispute. Temporary labor arbitration is created by the parties to a collective labor dispute together with the relevant state body for the settlement of collective labor disputes to consider this collective labor dispute. By decision of the relevant tripartite commission for the regulation of social and labor relations, a permanent labor arbitration may be created under it to consider and resolve collective labor disputes submitted to it for consideration by agreement of the parties.

The composition and rules of temporary labor arbitration are established by the decision of the employer (representative of employers), the representative of employees and the state body for the settlement of collective labor disputes. In a permanent labor arbitration, the procedure for forming a composition of a labor arbitration to resolve a specific labor dispute and its rules are determined by the provision on permanent labor arbitration (charter of a permanent labor arbitration), approved by the relevant tripartite commission for the regulation of social and labor relations. The federal executive body responsible for the development of state policy and legal regulation in the sphere of labor, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations, may approve a standard provision on a permanent labor arbitration (a model charter of a permanent labor arbitration).

The decision of the labor arbitration on the settlement of a collective labor dispute is submitted to the parties to this dispute in writing.

30. The right to strike and its implementation.

In the event that the employer evades the creation of labor arbitration, as well as in case of refusal to implement its recommendations (if an agreement has been reached on their mandatory implementation), employees may start a strike.

Strike - a temporary voluntary refusal of employees from the performance of labor duties (in whole or in part) in order to resolve collective labor spore.

According to Article 37 of the Constitution Russian Federation the right of workers to strike is recognized as a way to resolve a collective labor dispute.

If conciliation procedures have not led to the resolution of a collective labor dispute (Article 406 of this Code) or the employer (representatives of the employer) or employers (representatives of employers) do not comply with the agreements, reached by the parties collective labor dispute in the course of resolving this dispute (Article 408 of this Code), or do not comply with the decision of the labor arbitration, then the employees or their representatives have the right to start organizing a strike, except in cases where, in accordance with parts one and two of Article 413 of this Code in order to resolve a collective labor dispute, a strike cannot be held.

Participation in a strike is voluntary. No one may be forced to participate or refuse to participate in a strike.

Persons forcing employees to participate or refuse to participate in a strike shall bear disciplinary, administrative, criminal liability in the manner prescribed by this Code, other federal laws.

Representatives of the employer are not entitled to organize a strike and take part in it.

31. concept employment contract as an institution labor law, legal fact (transaction), legal relations and forms of involvement in labor. Classification of labor contracts.

In the science of labor law, an employment contract is considered as a form of realization of the right to work, the basis for the emergence and implementation of labor relations, a legal institution that combines the rules on the emergence, change and termination of labor rights and obligations.

The most important feature of the institution of an employment contract, penetrating both the norms of the law on admission, and the norms on ᴨȇrevod and dismissal, is the freedom of an employment contract, reflecting the principle of freedom of labor in society, enshrined in Art. 37 of the Constitution of the Russian Federation. Freedom of the labor contract means that citizens: a) freely choose the place and type of labor activity, work according to their will; b) freely, voluntarily resolve the issue of work, conclude an employment contract and may terminate it at any time in the manner prescribed by law; c) have, as a rule, stable employment contracts. The employment contract reflects the contractual principle of involvement in work as an employee.

An agreement is an agreement between two or more persons on the establishment, change or termination of civil rights and obligations. The contract as a legal fact serves as the basis for the emergence of the contract as a legal relationship or a contractual legal relationship. The contract as a legal fact and as a legal relationship are independent aspects of the contract, different sides in its development.

Contracts belong to that variety of legal facts, which is called transactions, which means that they represent the actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations (Article 153 of the Civil Code of the Russian Federation). Unlike a transaction, a contract is always an agreed expression of the will of two or more parties, aimed at generating civil law consequences. The contract requires the agreement of the will of the parties on all issues of significant importance to them.

Labor and other legal relations are the result of the impact of labor law norms on the relations of subjects in the field of employment. Labor law can give rise to legal connection between subjects, i.e. the legal relationship itself, if the subjects perform a legally significant volitional act - a legal act that is the basis for the emergence of a legal relationship. The basis for the emergence employment relationship is such a legal act as an employment contract concluded between an employee and an employer.

Without touching on details, there are several main directions for solving the problem of attracting people to work:

non-economic form of attraction to work. It is characteristic of a slave-owning society, when a slave had to work only under the compulsion of his master, being his property;

attraction to work on the basis of the economic need to work. This form is characteristic of capitalism. The worker is personally free, but only wage labor for remuneration in the form of a salary;

an intermediate form of attraction to work, transitional between the two forms indicated above. It is typical for the feudal period, when the serf (vassal) had some personal freedom and had a certain economic interest in the results of his labor, however, due to his feudal dependence, he was forced to give a greater or lesser part of his labor on a forced basis.

The legislator does not give a general classification of employment contracts, but Art. 58 of the Labor Code classifies them only by the term of the contract: 1) for an indefinite period (i.e. for permanent work) and 2) for a definite period (i.e. urgent) not more than five years, unless another period is established by the Code or another federal law. Part two of this article limits the terms for concluding a fixed-term contract. Fixed term contract is concluded in cases expressly provided for by law, as well as when labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its performance, i.e., the two indicated circumstances must be taken into account, unless otherwise provided by the Law. But the classification 58 of the Labor Code does not reflect all types of employment contracts, and, consequently, their features; each of the two types indicated in it has its own varieties, differing in the content of the employment contract and often in the order of its conclusion. Therefore, we classify each of the two types of contracts indicated by the term in the same way - according to the content and procedure for its conclusion

32. The concept, features and structure of the labor relationship.

An employment relationship is a social and labor relationship that arises on the basis of an employment contract and is regulated by the norms of labor law, according to which one subject - the employee undertakes to perform a labor function subject to the rules of the internal labor schedule, and the other subject - the employer is obliged to provide work, ensure healthy and safe conditions labor and pay for the work of the employee in accordance with his qualifications, the complexity of the work, the quantity and quality of labor.

Labor Relations are characterized by specific features:

1. The personal nature of the rights and obligations of an employee who is obliged only by his labor to participate in the production or other activities of the organization (employer). The employee does not have the right to represent another employee in his place or to entrust his work to another, just as the employer does not have the right to replace the employee with another, except in cases established by the Law (for example, during the employee's absence due to illness, etc.). There are no such restrictions in civil law where the contractor has the right to involve other persons in the performance of work.

2. An employee is obliged to perform a certain, predetermined labor function (work in a certain specialty, qualification or position), but not a separate (separate) individually-specific task by a certain date. The latter is typical for civil law obligations related to labor activity, the purpose of which is to obtain a specific result (product) of labor, the fulfillment of a specific assignment or service by a certain date.

3. The specifics of labor relations also lies in the fact that the performance of the labor function is carried out in the conditions of general (cooperative) labor, which necessitates the subordination of the subjects of the labor relationship to the internal labor regulations established by the organization (employer). The performance of the labor function and the related subordination to the internal labor schedule means the inclusion of citizens in the composition of the employees (labor collective) of the organization. All three features mentioned in this paragraph constitute characteristics labor of a citizen as an employee, in contrast to the subject of a civil law relationship. It is well known that a single and complex labor relationship combines both coordination and subordination elements, where freedom of labor is combined with subordination to the internal labor regulations. This is impossible in civil law terms, based on the fundamental principles of civil law, enshrined in Art. 2 of the Civil Code of the Russian Federation.

4. The reimbursable nature of the employment relationship is manifested in the response of the organization (employer) to the performance of work - in the payment of wages, as a rule, in cash. The peculiarity of the employment relationship is that payment is made for the living labor expended, carried out by the employee systematically in the established work time, and not for the specific result of materialized (past) labor, the performance of a specific assignment or service, as in civil law relations.

5. characteristic feature employment relationship is also the right of each of the subjects to terminate this relationship without any sanctions in compliance with the established procedure. At the same time, the employer is obligated to notify the employee of the employee's dismissal on his initiative in established cases and to pay severance pay in the manner prescribed by the labor law.,

The legal relationship has a structure that is complex in composition of elements. It includes the Subject, object and Content of the legal relationship.

Types of conditions of an employment contract: 1) conditions regulated by law: a) employer - an enterprise of any form of ownership, institution, organization, individual citizens; b) an employee - a citizen who has reached the age of 16 (in exceptional cases, 15 years); students who have reached the age of 14, in the cases and in the manner prescribed by law; c) the term of the contract. According to the Labor Code of the Russian Federation, an employment contract may be concluded for an indefinite period, for a definite period of not more than 5 years, for the duration of a certain work; 2) conditions worked out by agreement of the parties: a) necessary; b) additional (optional).

The necessary conditions of the employment contract must necessarily be agreed upon by the parties and reflected in the employment contract. Lack of agreement on these terms invalidates the treaty itself. TO necessary conditions include: place of work; labor function; date of commencement of work; working hours; obligations of the employer; terms of payment.

The contract must contain an agreement on the very fact of admission - hiring, that is, proof of the mutual will of the parties.

The employment contract shall indicate: the last name, first name, patronymic of the employee and the name of the employer (last name, first name, patronymic of the employer - individual) who entered into an employment contract.

The essential terms of the employment contract are: 1) place of work (indicating the structural unit); 2) date of commencement of work; 3) labor function; 4) the rights and obligations of the employee; 5) the rights and obligations of the employer; 6) characteristics of working conditions, compensations and benefits to employees for work in difficult, harmful and (or) hazardous conditions; 7) the mode of work and rest (if it is in relation to this employee differs from general rules established in the organization); 8) terms of remuneration and compensation; 9) types and conditions of social insurance related to labor activity.

The terms of the employment contract can be changed only by agreement of the parties and only in writing.

34. The concept, content and types of the employee's labor function, its significance as one of the mandatory conditions of the employment contract.

The lack of a clear definition of the concept of "labor function" led to a different assessment of its content.

In our opinion, the labor function should be understood as:

A certain range of work, production operations, their characteristics, established by agreement of the parties within the profession, specialty, provided for by the Unified Tariff qualification handbook(ETKS) jobs and occupations of workers;

A circle official duties determined by agreement of the parties, within the limits of the positions of managers, specialists and employees, qualification characteristics provided for by the Unified Qualification Handbook (CEN).

If an employee is hired for a specific position provided for by staffing employer, then his labor function will be determined by the parties to the employment contract in accordance with the CAS for the positions of managers, specialists and employees.

If an employment contract is concluded with an employee on the performance of work by him in a certain profession, specialty, then his labor function is determined by the ETKS of works and professions of workers. In this case, the labor function of the employee determines the characteristics of the types of work in the profession, depending on their complexity and the corresponding tariff categories. In the event that an employee is hired to perform work that is not provided for by either the CSA or the ETCS, his labor function is determined by agreement of the parties. As a rule, this applies to certain categories of workers.

By virtue of Art. 17 of the Labor Code of the Russian Federation, labor relations on the basis of an employment contract as a result of election to a position arise, provided that the election to a position involves the performance of a certain labor function by the employee.

In accordance with Art. 15 and 57 of the Labor Code of the Russian Federation, the labor function is understood as:

Work according to the position in accordance with the staffing table;

Work in a certain profession, specialty with an indication of qualifications;

The specific type of work assigned to the employee.

Secondly, the labor function, being prerequisite employment contract, contributes to the distinction between an employment contract and related civil law contracts.

Thirdly, the labor function of the employee, its content is important for the employer, who needs to assess the legitimacy of his behavior in the course of obtaining information about the health of the employee. As a general rule, all personal data of an employee should be obtained from him.

Fourthly, the labor function, its content, is of no small importance when changing the terms of the employment contract determined by the parties, including by transferring the employee to another job.

Fifthly, the labor function carries a certain legal burden when deciding whether to involve an employee in disciplinary responsibility, including in the form of dismissal.

Sixth, the labor function of the employee, provided for by the employment contract, allows you to determine the legality (legality and validity) of concluding an agreement with the employee on full liability.

35. Legal regulation and the consequences of a test for employment.

In order to verify the compliance of the employee with the work assigned to him, by agreement of the parties, a test may be established in the employment contract. The legislator sets the deadline for testing - 3 months. An exception is established for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices and other separate structural divisions of organizations. For these categories of workers, the period of probation may not exceed 6 months.

The probation period for persons employed for a period of 2 to 6 months may not exceed 2 weeks.

The period of temporary disability of the employee and other periods when he was actually absent from work are not included in the probationary period.

The Labor Code of the Russian Federation (Article 70) indicates the categories of workers who cannot be tested. These include:

Persons applying for a job through a competition for the corresponding position held in the manner prescribed by law;

Persons employed for up to 2 months;

Pregnant women;

Persons under the age of 18;

Persons who graduated from state-accredited educational institutions of primary, secondary and higher vocational education and for the first time coming to work in the received specialty within 1 year from the date of graduation educational institution;

Persons elected (chosen) to an elective position for paid work;

Persons invited to work in the order of transfer from another employer as agreed between employers.

The list of these categories may be supplemented by federal laws or collective agreement organizations. At the same time, during the probation period, the provisions of the Labor Code of the Russian Federation, laws, other regulatory legal acts, local regulations containing labor law norms, a collective agreement, an agreement apply to the employee.

Before expiration due date testing, the employer has the right to decide on its unsatisfactory result and dismiss the employee (Article 71 of the Labor Code of the Russian Federation). In this case, the employee must be notified in writing by the employer no later than 3 days in advance, indicating the reason.

If the test result is unsatisfactory, the employment contract is terminated without taking into account the opinion of the relevant trade union body and without payment of severance pay.

However, if the probation period has expired, and the employee continues to work, then he is considered to have passed the probation and the subsequent termination of the employment contract is allowed only on a general basis.

If, during the trial period, the employee himself comes to the conclusion that the job offered to him is not suitable for him, he has the right to terminate the employment contract by own will by notifying the employer in writing 3 days in advance.

36. Legal regulation of combining professions (positions), expanding service areas, increasing the volume of work performed, their relationship with part-time work.

Article 60.2 was introduced by Federal Law No. 90-FZ of June 30, 2006. It sets out the rules for involving an employee, along with the work specified in the employment contract, to perform additional work in another or the same profession (position) during the established duration of the working day (shift).

2. According to part 1 of the commented article, the employer can instruct the employee to perform such additional work only with his written consent and for an additional fee. The amount of the additional fee in accordance with Art. 151 of the Labor Code is established by agreement of the parties to the employment contract, taking into account the content and (or) volume of additional work (see commentary to article 151).

3. In accordance with Part 2 of Art. 60.2 additional work entrusted to the employee along with the work determined by the employment contract may be performed by him in the order of combining professions (positions), by expanding service areas, increasing the volume of work or in connection with the assignment of the duties of a temporarily absent employee to him.

Combination of professions (positions) is the performance by an employee, along with his main job in the profession (position) determined by the employment contract, additional work in another profession (position) with the same employer during the duration of the working day (shift) established for him. As a rule, an employee is assigned to combine a vacant position or profession.

In contrast to the combination of professions (positions), when expanding service areas or increasing the volume of work, the employee performs work in the same profession or position, which is due to the employment contract, but in a larger volume compared to that which he performed in accordance with the employment contract.

The performance by an employee of the duties of a temporarily absent employee without releasing him from work in the profession (position) stipulated by the employment contract is allowed both in the same profession (position) that the employee performs in accordance with the employment contract, and in another profession (position).

It should be borne in mind that in cases where, in order to fulfill the duties of a temporarily absent employee, an employee is released from work stipulated by an employment contract, then in this case there is a temporary transfer to another job to replace the temporarily absent employee. Such a transfer is carried out in the manner prescribed by Art. 72.2, introduced into the Labor Code by the Federal Law of June 30, 2006 N 90-FZ (see commentary to the named article).

4. The law does not establish any minimum or maximum period for which an employer may assign an employee to perform additional work along with his main job. In each specific case, the period during which the employee will perform, along with the work determined by the employment contract, additional work in the order of combining professions (positions), by expanding service areas, increasing the volume of work, or in connection with imposing on him the duties of a temporarily absent employee , is determined by the employer with the consent of the employee (part 3 of article 60.2). In the event that the employee does not agree with the period determined by the employer, then this period may be determined by agreement of the parties. If the parties fail to agree on the period during which additional work must be performed, the employee has the right to refuse to perform it.

5. According to part 4 of the commented article, the deadline for performing additional work determined by the parties is not mandatory for them. The employee has the right to refuse to perform additional work ahead of schedule, and the employer has the right to cancel the order to perform it ahead of schedule by notifying the other party in writing no later than 3 working days in advance.

At the same time, as follows from the content of this provision, neither the employee nor the employer are required to indicate the reason why they prematurely withdraw from the agreement on the performance of additional work.

37. The procedure for concluding an employment contract, the documents necessary for its conclusion. Form of employment.

The conclusion of an employment contract is allowed with persons who have reached the age of sixteen years.

The very conclusion of the contract can be divided into four parts: First, it is necessary to observe the form of the employment contract: the employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. Secondly, when concluding an employment contract, it is necessary to indicate all the essential conditions (see the section "Terms of the employment contract"), namely the place of work, labor function, date of commencement of work (and date of completion if a fixed-term employment contract is concluded), payment terms . Without specifying at least one of the listed conditions, the employment contract is considered not concluded. Thirdly, it should be noted that there is no single model of an employment contract. Regardless of how the final version of the employment contract will look, there is a certain list of items that must be included in the employment contract without fail (this list is established in Article 57 of the Labor Code of the Russian Federation). Fourthly, it is necessary to determine such an important condition as the term for concluding an employment contract. The employment contract is concluded for: an indefinite period; a fixed period of not more than five years (fixed-term employment contract). Any employment contract has its own specifics, and when concluding an employment contract with hired employees, you should not use templates that contain only general terms and Conditions and weakly protect both the rights of the employer and the rights of the worker. You can fill out a special form, indicating your terms of the employment contract and download a sample of any employment contract that meets all

the requirements of the Labor Code of the Russian Federation, as well as your own requirements.

Article 65 of the Labor Code of the Russian Federation - Documents to be presented at the conclusion of an employment contract

When concluding an employment contract, a person entering a job presents to the employer:

passport or other identity document;

a work book, except for cases when an employment contract is concluded for the first time or an employee goes to work on a part-time job;

insurance certificate of state pension insurance;

documentation military registration- for persons liable for military service and persons subject to conscription for military service;

a document on education, qualifications or the availability of special knowledge - when applying for a job that requires 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 that are established federal body executive power, which performs the functions of developing and implementing state policy and legal regulation in the field of internal affairs - when applying for a job related to activities, to the implementation of which, in accordance with this Code, other federal law, persons who have or had convictions that are or have been prosecuted.

V individual cases taking into account the specifics of work, this Code, other federal laws, decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation may provide for the need to present additional documents when concluding an employment contract.

It is prohibited to demand from a person applying for a job documents other than those provided for by this Code, other federal laws, decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation.

When concluding an employment contract for the first time, a work book and an insurance certificate of state pension insurance are drawn up by the employer.

In the absence of a person applying for a job, work book in connection with its loss, damage or for any other reason, the employer is obliged, upon a written application of this person (indicating the reason for the absence of a work book), to issue a new work book.

Article 68 of the Labor Code of the Russian Federation - Registration of employment

Employment is formalized by the order (instruction) of the employer, issued on the basis of the concluded employment contract. The content of the order (instruction) of the employer must comply with the terms of the concluded employment contract.

The order (instruction) of the employer on employment is announced to the employee against signature within three days from the date of the actual start of work. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (instruction).

When hiring (before signing an employment contract), the employer is obliged to familiarize the employee against signature with the internal labor regulations, other local regulations directly related to the employee's labor activity, the collective agreement.

38. The concept and classification of transfers to another job.

Translation is the most significant change terms of the employment contract and therefore is allowed only with the written consent of the employee. Article 72 of the Labor Code of the Russian Federation distinguishes three types of transfers to another permanent job: 1) transfer in the same organization; 2) transfer to another organization; 3) transfer to another locality together with the organization.

Transfer to another permanent job in the same organization at the initiative of the employer means a change in the labor function or a change in the essential terms of the employment contract (part 1 of article 72 of the Labor Code of the Russian Federation).

The possibility of temporary transfer without the consent of the employee is provided for by Art. 74 of the Labor Code of the Russian Federation. The condition for such a transfer is the presence of unforeseen circumstances, which are called production necessity. In the Labor Code of the RSFSR (1971), transfer without the consent of the employee was also allowed during downtime. The Labor Code, as a circumstance allowing for a transfer without the consent of the employee, names only the need to prevent downtime. Legislators in a closed list define the concept of production necessity: 1) the need to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, accidents or natural disaster; 2) the need to prevent accidents, downtime, destruction or damage to property; 3) the need to replace an absent employee (due to vacation, illness, performance of state or public duties, and in other cases when the employee retains workplace).

The legislation establishes a number of guarantees when transferring due to production needs. Firstly, such a transfer can only be temporary - for up to one month. True, it is not specified how many times such a transfer can take place during the year, therefore, in total it can be more than a month. Only in relation to transfers to replace an absent employee, the guarantee is clearer - their duration cannot exceed the first month during the calendar year. Secondly, in order to transfer to a job requiring a lower qualification, the written consent of the employee is required. Thirdly, transfers due to operational necessity without the consent of the employee are possible only within one organization (previously, transfers to another organization were allowed). Fourth, a material guarantee is the preservation of the employee's previous average earnings when transferred to a lower-paid job.

Temporary transfer in case of production necessity, subject to the guarantees established by Art. 73 of the Labor Code of the Russian Federation, implies the obligation of the employee to perform work not provided for by his employment contract. Refusal to perform this work is considered as a violation of labor discipline and may cause disciplinary measures against him, up to dismissal for absenteeism (if the employee does not go to a new workplace) or for repeated failure to perform without good reasons labor duties (if the employee already has a disciplinary sanction).

After the expiration of the temporary transfer period, the employee must be given the previous job (position).

Another type of transfer (for a permanent job in another organization) is accompanied by the dismissal of an employee under paragraph 5 of Art. 77 of the Labor Code of the Russian Federation: in connection with the transfer of an employee at his request or with his consent to work for another employer. Such a transfer is possible in cases where an employee is transferred at the initiative of a higher authority (for example, in the system of one ministry or department) or by agreement between the heads of two employer organizations.

The third type of transfer (to work in another locality together with the organization) does not involve a change of employer or job function, but involves a change in place of residence, and therefore is possible only with the prior consent of the employee. If the employee refuses to transfer due to the employer moving to another locality, the employment contract is terminated under clause 9 of Art. 77 of the Labor Code of the Russian Federation, while a severance pay is paid in the amount of two weeks of average earnings (part 3 of article 178 of the Labor Code of the Russian Federation).

The consent of the employee to the transfer must be in writing. Traditionally, it is customary to formalize such consent in the form of an employee’s application for a transfer, which is not entirely logical, since the initiative, as a rule, comes from the employer. Need to conclude additional agreement, which is based on the number of Part 4 of Art. 57 of the Labor Code of the Russian Federation.

It should be noted that changing the employee's labor function (transfer) is not always the right of the employer, sometimes he is obliged to offer the employee a transfer or satisfy the employee's request for a transfer. For example, in some cases, the dismissal of an employee must necessarily be preceded by an offer from the employer to transfer to another job. This applies to the following cases of dismissal: a) to reduce the number or staff of employees (clause 2, article 81 of the Labor Code of the Russian Federation); b) in connection with the inconsistency of the employee with the position held and the work performed due to the state of health or insufficient qualifications (clause 3 of article 81 of the Labor Code of the Russian Federation); c) in case of refusal of the employee to continue work in connection with a change in the essential terms of the employment contract (clause 7, article 77 of the Labor Code of the Russian Federation); d) in case of reinstatement at work of an employee who previously performed this work, by decision state inspection labor or court (clause 2, article 83 of the Labor Code of the Russian Federation). Termination of the employment contract on the indicated grounds is allowed if it is impossible to transfer the employee (with his consent) to another job (part 2 of article 81, part 4 of article 73, part 2 of article 83 of the Labor Code of the Russian Federation).

The obligation of the employer to offer the employee a transfer to another job may be due to the state of his health. According to part 2 of Art. 72 of the Labor Code of the Russian Federation, an employee who, in accordance with a medical report, needs to be provided with another job, the employer is obliged (with his consent) to transfer to another available job that is not contraindicated for him for health reasons. When transferring an employee to medical indications to another permanent lower-paid job, he retains his previous average earnings within one month from the date of transfer, and in case of transfer due to an industrial injury, occupational disease or other damage to health associated with work - until a permanent loss of professional ability to work is established or until the employee recovers (Article 182 of the Labor Code of the Russian Federation). If the employee refuses such a transfer or if there is no such work in the organization, the employment contract is terminated under clause 8 of Art. 77 of the Labor Code of the Russian Federation. I must say that paragraph 8 of Art. 77 of the Labor Code of the Russian Federation accepted only part of the wording of Art. 72 of the Labor Code of the Russian Federation: "... the refusal of an employee to transfer to another job due to a state of health in accordance with a medical report." Probably, this should be attributed to the shortcomings of legal technique.

Two more cases of mandatory temporary transfer at the initiative of the employee are provided for in Art. 254 of the Labor Code of the Russian Federation. Pregnant women, in accordance with a medical report and at their request, are transferred to another job that excludes the impact of adverse production factors, while they retain their average earnings from their previous job. If the employer does not have the opportunity for such a transfer, he is obliged to release the pregnant woman from work (with the preservation of average earnings) until the issue of providing her with suitable job excluding the impact of unfavorable production factors.

Women with children under the age of one and a half years are entitled to demand a transfer to another job if it is impossible to perform the previous one. A man who is the father of a child can also use a similar benefit if he is raising a child without a mother (Article 264 of the Labor Code of the Russian Federation).

39. Legal regulation of temporary transfers to another job.

Article 72

Changing the terms of the employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, with the exception of cases provided for by this Code. An agreement to change the terms of an employment contract determined by the parties is concluded in writing.

Article 72.1. Transfer to another job. moving

Transfer to another job - a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if structural subdivision was specified in the employment contract), while continuing to work for the same employer, as well as transferring to work in another area with the employer. Transfer to another job is allowed only with the written consent of the employee, except for the cases provided for by parts two and three of Article 72.2 of this Code.

At the written request of the employee or with his written consent, the employee may be transferred to a permanent job with another employer. In this case, the employment contract at the previous place of work is terminated (paragraph 5 of the first part of Article 77 of this Code).

It does not require the consent of the employee to move him from the same employer to another workplace, to another structural unit located in the same area, entrusting him to work on another mechanism or unit, if this does not entail a change in the terms of the employment contract determined by the parties.

It is forbidden to transfer and move an employee to work that is contraindicated for him for health reasons.

Article 72.2. Temporary transfer to another job

By agreement of the parties, concluded in writing, the employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the case when such a transfer is carried out to replace a temporarily absent employee, who, in accordance with the law, retains his job , - until the employee goes to work. If at the end of the transfer period the previous job is not provided to the employee, but he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent.

In the event of a natural or man-made disaster, industrial accident, accident at work, fire, flood, famine, earthquake, epidemic or epizootic, and in any exceptional cases that endanger the life or normal living conditions of the entire population or part of it, the employee may be transferred without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer in order to prevent these cases or eliminate their consequences.

The transfer of an employee without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer is also allowed in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent the destruction or damage to property, or replacement temporarily absent employee, if downtime or the need to prevent the destruction or damage of property or to replace a temporarily absent employee is caused by the emergency circumstances specified in part two of this article. At the same time, transfer to work requiring lower qualifications is allowed only with the written consent of the employee.

When transfers are made in the cases provided for in parts two and three of this article, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job.

40. Changing the employment contract in connection with the modification of organizational or technological working conditions.

Article 74

In the event that, for reasons related to changes in organizational or technological working conditions (changes in engineering and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be saved, they can be changed at the initiative of the employer, with the exception of changes in the work function of the employee.

The employer is obliged to notify the employee in writing of the forthcoming changes in the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, at least two months in advance, unless otherwise provided by this Code.

If the employee does not agree to work under the new conditions, the employer is obliged in writing to offer him another job available to the employer (as vacant position or work corresponding to the qualifications of the employee, as well as a vacant lower position or lower paid job) that the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

In the absence of the specified work or the refusal of the employee from the proposed work, the employment contract is terminated in accordance with paragraph 7 of the first part of Article 77 of this Code.

In the event that the reasons specified in part one of this article may lead to the mass dismissal of employees, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner established by Article 372 of this Code, to adopt local regulations , introduce a part-time (shift) and (or) part-time working week for up to six months.

If the employee refuses to continue working part-time (shift) and (or) part-time working week, then the employment contract is terminated in accordance with clause 2 of part one of Article 81 of this Code. At the same time, the employee is provided with appropriate guarantees and compensation.

Cancellation of the part-time (shift) and (or) part-time working week regime earlier than the period for which they were established is carried out by the employer, taking into account the opinion of the elected body of the primary trade union organization.

Changes in the terms of the employment contract determined by the parties, introduced in accordance with this article, should not worsen the position of the employee in comparison with the established collective agreement, agreements.

41. Suspension from work.

Article 76. Suspension from work

The employer is obliged to suspend from work (not allow to work) the employee:

appeared at work in a state of alcoholic, narcotic or other toxic intoxication;

who has not undergone training and testing of knowledge and skills in the field of labor protection in the prescribed manner;

not passed in the prescribed manner mandatory medical checkup(examination), as well as a mandatory psychiatric examination in cases provided for by federal laws and other regulatory legal acts Russian Federation;

if, in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, contraindications are revealed for the employee to perform work stipulated by an employment contract;

in the event of suspension for a period of up to two months of an employee’s special right (license, right to manage vehicle, the right to bear arms, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility for the employee to fulfill the obligations under the employment contract and if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or job corresponding to the qualifications of the employee, and a vacant lower position or lower-paid job) that the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract;

at the request of the authorities or officials authorized by federal laws and other regulatory legal acts of the Russian Federation;

in other cases provided for by federal laws and other regulatory legal acts of the Russian Federation.

The employer suspends from work (does not allow to work) the employee for the entire period of time until the circumstances that were the basis for suspension from work or exclusion from work are eliminated.

During the period of suspension from work (non-admission to work) wage employee is not accrued, with the exception of cases provided for by this Code or other federal laws. In cases of suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or a mandatory preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire time of suspension from work as for downtime.

42. The concept, composition and mechanism for protecting the personal data of an employee.

Article 85. The concept of personal data of an employee. Processing of personal data of an employee

Employee's personal data - information required by the employer in connection with labor relations and relating to a particular employee.

Processing of personal data of an employee - receipt, storage, combination, transfer or any other use of personal data of an employee.

Article 86. General requirements for the processing of personal data of an employee and guarantees for their protection

In order to ensure the rights and freedoms of man and citizen, the employer and his representatives, when processing the personal data of the employee, must comply with the following general requirements:

1) the processing of personal data of an employee may be carried out solely for the purpose of ensuring compliance with laws and other regulatory legal acts, assisting employees in employment, training and promotion, ensuring the personal safety of employees, controlling the quantity and quality of work performed and ensuring the safety of property;

2) when determining the scope and content of the processed personal data of an employee, the employer must be guided by the Constitution of the Russian Federation, this Code and other federal laws;

3) all personal data of the employee should be obtained from him. If the employee's personal data can only be obtained from a third party, then the employee must be notified of this in advance and written consent must be obtained from him. The employer must inform the employee about the purposes, intended sources and methods of obtaining personal data, as well as the nature of the personal data to be obtained and the consequences of the employee's refusal to give written consent to receive them;

4) the employer does not have the right to receive and process the personal data of the employee about his political, religious and other beliefs and private life. In cases directly related to issues of labor relations, in accordance with Article 24 of the Constitution of the Russian Federation, the employer has the right to receive and process data on the private life of an employee only with his written consent;

5) the employer does not have the right to receive and process the personal data of the employee about his membership in public associations or his trade union activities, with the exception of cases provided for by this Code or other federal laws;

6) when making decisions affecting the interests of the employee, the employer does not have the right to rely on the employee's personal data obtained solely as a result of their automated processing or electronic receipt;

7) the protection of the employee's personal data from their unlawful use or loss must be ensured by the employer at his expense in the manner established by this Code and other federal laws;

8) employees and their representatives must be familiarized against signature with the documents of the employer establishing the procedure for processing the personal data of employees, as well as their rights and obligations in this area;

9) employees must not waive their rights to maintain and protect secrets;

10) employers, employees and their representatives must jointly develop measures to protect the personal data of employees.

43. The concept and types of working time.

Working time is established by law. Segment of calendar time, during the cat. the employee, in accordance with the internal labor regulations, work schedule or the terms of the employment contract, must fulfill his labor duties. Art. 42 Labor Code establishes 40 hours. Working hours - Is statutory for a given employee, the duration of his working time for a certain calendar period - a day, a week, a month. The norm cannot be exceeded, but can be reduced by count. treaty. Three types of working hours: First - Normal working hours This is the statutory norm, cat. must comply with the subjects of tr. relationship (employee and employer). No more than 40 hours per week. Article 42 of the Labor Code.

The second - Reduced duration - it is less than normal, but with payment, as for normal. For: adolescents (16-18 years old) - no more than 36 hours, (14-16) - 24 hours - 4 times. For students - 18 or 12 hours; in hazardous industries - 36 or 24 hours; with increased emotional, mental stress (teachers, doctors) - 18-36 hours); women in rural areas - 36 with full pay; disabled people - 36 hours; The third - part-time work is established by Art. 49 of the Labor Code by agreement of the parties and proportional payment depending on the output. Work meter time - Working week, day, shift. A working week is the distribution of working time in a calendar week. A working day is a time during the day. Working shift - established at shift work shift schedule approved by the administration. By agreement with the trade union and its alternation with other shifts during a certain calendar time. Pre-holiday work reduced by 1 hour, night work- from 10 pm - 6 am. You can not involve: pregnant women and women with children under 3 years old, disabled people, under 18 years old.

44. Legal regulation of labor outside the working hours established for the employee.

Normal working hours may not exceed 40 hours per week. Work outside working hours can be carried out at the initiative of both the employee and the employer.

The Labor Code defined overtime work as work in excess of the established working hours (Article 54). The practice of applying this norm testified that the above wording was far from complete and made it possible for unreasonable use of overtime work. This wording required clarification, which was done in the new Labor Code (Article 97). First of all, it is emphasized that work performed outside the normal working hours is not always overtime. An important feature of overtime work is on whose initiative such work is performed. So, in accordance with Art. 99 of the Labor Code, only work performed at the initiative of the employer can be considered overtime.

Article 97 of the Labor Code allows work outside the normal working hours at the initiative of the employee (part-time job).

Work outside the normal working hours at the initiative of the employer (overtime work) can be performed only with the written consent of the employee.

A) when involved in overtime work at the initiative of the employer

According to Art. 99 of the Labor Code, overtime is considered to be work performed by an employee at the initiative of the employer in excess of the established working hours, daily work (shift), as well as work in excess of the normal number of working hours for the accounting period.

The basis for involving an employee in overtime work is the order (instruction) of the employer.

Overtime work is recognized in practice even when it was carried out not only with the knowledge of the employer, but also with the immediate supervisor of the work (foreman, site manager, etc.). However, in all cases, involvement in overtime work is possible only with the written consent of the employee.

Work is recognized as overtime, regardless of whether it was part of the employee's duties or not.

Involvement in overtime work is carried out by the employer with the written consent of the employee in the following cases:

1) in the performance of work necessary for the defense of the country, as well as to prevent a production accident or eliminate the consequences of a production accident or natural disaster;

2) when performing socially necessary work on water supply, gas supply, heating, lighting, sewerage, transport, communications - to eliminate unforeseen circumstances that disrupt their normal functioning;

3) if necessary, perform (finish) the work begun, which, due to an unforeseen delay due to specifications production could not be performed (completed) during the normal number of working hours, if failure to perform (non-completion) of this work may entail damage or destruction of the property of the employer, state or municipal property, or create a threat to life and health of people;

4) in the performance of temporary work on the repair and restoration of mechanisms or structures in cases where their failure may cause the termination of work for a significant number of employees;

5) to continue work in the absence of a replacement employee, if the work does not allow a break. In these cases, the employer is obliged to immediately take measures to replace the shift with another employee.

A similar list was contained in Art. 55 Labor Code. However, unlike the previous Labor Code new law in these exceptional cases does not allow the use of overtime work without the written consent of the employee. In other words, if the manager appointed overtime work in the cases provided for in Art. 99 of the Labor Code, then if the employee refuses to perform such work, he cannot be held disciplinary liable. In this, the Labor Code differs significantly from the Labor Code, in accordance with the norms of which involvement in overtime work is allowed even in the absence of the consent of the employee, i.e. refusal could be regarded as a disciplinary offence.

In other cases, in addition to those specified in Art. 99 of the Labor Code, involvement in overtime work is allowed in addition to the written consent of the employee, taking into account the opinion of the representative body of employees. That is new code establishes a double guarantee against unreasonable involvement of employees in overtime work.

It is not allowed to involve pregnant women, workers under 18 years of age, other categories of workers in overtime work in accordance with federal law. The involvement of disabled people, women with children under the age of three years, to overtime work is allowed with their written consent and provided that such work is not prohibited to them for medical reasons. At the same time, disabled people, women with children under the age of three, must be familiarized in writing with their right to refuse overtime work.

The Labor Code (Article 159) retains the amount of overtime pay provided for by the Labor Code. Overtime work is paid for the first two hours of work at least one and a half times, for subsequent hours - at least twice the amount. Specific amounts of payment for overtime work may be determined by a collective agreement or an employment contract.

45. The concept of working hours and its types. Accounting for working hours.

Under the mode of working time (labor mode) is understood the distribution of work during a certain calendar period. The elements of the working time regime include the number of working days per week or other period, the duration and rules for alternating shifts, the start and end times of work, the time and duration of breaks and weekly rest.

The choice of the optimal mode of operation is one of the central tasks of organizing labor in production. When drawing up work schedules, data from labor physiology, economics and other sciences are used in order to ensure high labor productivity and take into account the interests of workers.

Time tracking

There are two main types of time tracking:

Daily;

Summarized.

With daily accounting, hours worked are taken into account for each day (shift).

The summarized recording of working time is introduced in cases where, due to the conditions of production (work), the daily or weekly working hours established for a given category of workers cannot be observed. Such accounting of working time, as a rule, is used in continuously operating enterprises, as well as in individual industries, workshops and in some types of work.

Here, for a certain period of time, called the accounting period (week, month, quarter, etc., but not more than one year), each employee must work out the established norm of working time and provide him with the appropriate rest time. The duration of working hours for the accounting period should not exceed the normal number of working hours (40 hours).

Overworking on one day of the accounting period is compensated by underworking on other days of the same accounting period. If this is not possible, then overtime hours are considered overtime and are paid as work in overtime in the total accounting of working hours.

Accounting for the use of working time is kept in the time sheets, in annual time cards. If necessary, chronometric observations and other one-time examinations are also carried out.

Accounting for the use of working time is designed to ensure control over the timely appearance of employees at work, the identification of all those who did not appear and those who were late, as well as control over the procedure for using breaks for rest and meals during working hours and the timeliness of leaving work at the end of working hours.

46. The concept and types of rest time.

Rest time is free time from work, which the employee can use at his discretion. It also includes travel time to and from work.

The types of rest time are as follows: breaks during the working day of the shift (intra-shift); breaks between working days, shifts (between shifts); weekly holidays; non-working holidays; annual leave; social leave at the request of employees; periodic maternity and targeted leave.

A) The ratio of material (property) liability in labor and civil law

Analysis of the minds of the workers for showing the importance and intensity of the labor process and the practicality of the people

Budget process drawing up, consideration, approval, execution of budgets for the links of the budget system

First of all, the student must be well versed in the texts of the Constitution of the Russian Federation, the Civil Code of the Russian Federation - in 3 parts, the Labor Code of the Russian Federation

Internal dynamic processes in the work team

Question 123

Consideration of a collective labor dispute in labor arbitration.
the effectiveness of this stage.
Agreement of the parties on the intention to consider the dispute in labor arbitration
What is labor arbitration, by whom and how is it formed.
Who can recommend labor arbitrators to the parties?
The mechanism of work of labor arbitration.
The form of decisions made and their provision.

A practical example of a dispute in labor arbitration.

Regulations.

Consideration of a collective labor dispute in labor arbitration is one of the stages in resolving a collective labor dispute.

If no agreement is reached in the conciliation commission and (or) with the participation of a mediator, the parties to a collective labor dispute may proceed to the creation of a labor arbitration.

In the cases provided for in Article 413 Labor Code RF, when a strike cannot be held, the establishment of a labor arbitration is mandatory.

The effectiveness of the consideration of a collective labor dispute in labor arbitration is that if the parties themselves cannot come to an agreement, then the decision is made by an independent body, which is created no later than three working days by the decision of the parties to the collective labor dispute and the relevant state body for the settlement of collective labor disputes. The participation of labor arbitrators in the consideration of a collective labor dispute should provide the parties to the collective labor dispute with additional features for its peaceful resolution.

At the same time, if the parties do not come to an agreement on the establishment of labor arbitration, its composition, rules and powers, then the decision on these issues is made by the state body for the settlement of collective labor disputes.

Labor arbitration is a temporary body for the consideration of a collective labor dispute.

By decision of the relevant tripartite commission for the regulation of social and labor relations, a permanent labor arbitration may be created under it to consider and resolve collective labor disputes submitted to it for consideration by agreement of the parties.

The creation of a labor arbitration, its composition, regulations, powers are formalized by agreement of the parties to the collective labor dispute.

The decision on the establishment of a labor arbitration, its composition, rules of work are drawn up in the minutes of the joint meeting of the representatives of the parties and the relevant state body for the settlement of collective labor disputes.

The procedure for considering a collective labor dispute by labor arbitration (the rules of its work) is determined by the parties and the state body for the settlement of collective labor disputes.

Regulations may establish: the duration of daily meetings; rules for replacing one of the labor arbitrators in case of illness and other unforeseen circumstances; sequence of explanations of persons representing the parties on the merits of the dispute; the possibility and procedure for challenging labor arbitrators, etc.

The date of signing the protocol is considered the day of creation of labor arbitration.

The protocol should reflect the conditions for the participation of labor arbitrators in the consideration of a collective labor dispute, agreeing them directly with labor arbitrators, heads of organizations where they work and the state body for the settlement of collective labor disputes.

In Moscow, the parties to a collective labor dispute may apply to the Labor Arbitration Court for the Resolution of Collective Labor Disputes.

The institution will assist the parties to the dispute in establishing a temporary labor arbitration with the provision of premises for its meetings, provide labor arbitrators with the necessary office equipment and legal documentation, provide the parties with the necessary consulting assistance, as well as assistance in the preparation of regulations.

The term for consideration of a dispute in labor arbitration is up to three working days.

If necessary, the terms provided for the conduct of conciliation procedures may be extended by agreement of the parties to the collective labor dispute.

For the implementation of the tasks assigned to it, labor arbitration is endowed with appropriate powers.

Labor arbitrators have the right to:

request and receive from the parties the necessary documents and information on the merits of the collective labor dispute;

hear explanations and appeals of the parties to the collective labor dispute.

The procedure for considering a collective labor dispute by labor arbitration consists of several stages:

election of the chairman of the labor arbitration,
study of documents and materials submitted by the parties;
hearing representatives of the parties;
hearing experts, if necessary;
development of decisions on the merits of a collective labor dispute;

The decision of the labor arbitration is drawn up in writing, taking into account all the circumstances of the case in accordance with current legislation Russian Federation, signed by labor arbitrators and transferred to the parties. The decision of the labor arbitration is drawn up in the minutes of the session of the labor arbitration. The minutes signed by the members of the labor arbitration shall indicate the labor arbitrators present at the meeting, representatives of the parties to the dispute, the list of measures necessary to resolve the collective labor dispute.

Consideration of a collective labor dispute in labor arbitration. Conditions for the creation of labor arbitration

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