Legal regulation of labor relations. Course of lectures “Legal basis of labor relations Features of labor relations in the armed forces of the Russian Federation

INTRODUCTION........................................................ ........................................................ ...... 0

CHAPTER 1. History and modernity.................................................... .................... 0

CHAPTER 2. Status, rights and guarantees of civilian personnel of the Armed Forces Russian Federation...................................................................................... 0

2.1. The procedure for recruiting civilian personnel to the Armed Forces of the Russian Federation.................................................. ........................................... 0

2.1. Classification of civilian personnel of the Armed Forces of the Russian Federation.................................................... ........................................................ ............ 0

2.2. Features and differences in the legal status of military personnel and civilian personnel of the Armed Forces of the Russian Federation.................................................... 0

2.3. Remuneration of civilian personnel of the Armed Forces of the Russian Federation.................................................... ........................................................ ................................ 0

CHAPTER 3. Labor and responsibility of civilian personnel of the Armed Forces of the Russian Federation.................................................... ........................................................ ................. 0

3.1. Material liability civilian personnel of the Armed Forces of the Russian Federation.................................................... ........................................... 0

3.2. The procedure for applying disciplinary sanctions to civilian personnel of the Armed Forces of the Russian Federation.................................................................... ................ 0

3.4. Grounds for termination employment contract with civilian personnel of the Armed Forces of the Russian Federation.................................................... ........................................... 0

3.5. Dismissal of civilian personnel of the Armed Forces of the Russian Federation due to reduction in numbers or staff.................................................... ........................... 0

CONCLUSION................................................. ........................................................ 0

LIST OF SOURCES USED........................................................ 0

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FSBEI HPE "OMSU IM. F.M. DOSTOEVSKY"

FACULTY OF LAW

DEPARTMENT OF LABOR RIGHTS

FEATURES OF LABOR RELATIONS

CIVILIAN PERSONNEL OF THE ARMED FORCES OF THE RUSSIAN FEDERATION.

Course work

Completed by: 3rd year student

accelerated distance learning

group YuUS-140-U

S.A. Saltykov

Email address: [email protected]

Scientific adviser:

Candidate of Legal Sciences, Associate Professor

Alenina Irina Viktorovna

Omsk

2013

INTRODUCTION 0

CHAPTER 1. History and modernity 0

CHAPTER 2. Status, rights and guarantees of civilian personnel of the Armed Forces of the Russian Federation 0

2.1. Procedure for recruiting civilian personnel to the Armed Forces of the Russian Federation 0

2.1. Classification of civilian personnel of the Armed Forces of the Russian Federation 0

2.2. Features and differences in the legal status of military personnel and civilian personnel of the Armed Forces of the Russian Federation 0

2.3. Remuneration of civilian personnel of the Armed Forces of the Russian Federation 0

CHAPTER 3. Labor and responsibility of civilian personnel of the Armed Forces of the Russian Federation 0

3.1. Material liability of civilian personnel of the Armed Forces of the Russian Federation 0

3.2. The procedure for applying disciplinary sanctions to civilian personnel of the Armed Forces of the Russian Federation 0

3.4. Grounds for termination of an employment contract with civilian personnel of the Armed Forces of the Russian Federation 0

3.5. Dismissal of civilian personnel of the Armed Forces of the Russian Federation due to reduction in numbers or staff 0

CONCLUSION 0

LIST OF SOURCES USED 0

Introduction.

Chapter 2. Status, rights and guarantees of civilian personnel of the Armed Forces of the Russian Federation.

2.1. The procedure for recruiting civilian personnel to the Armed Forces of the Russian Federation

Recruiting the Armed Forces of the Russian Federation with civilian personnel is carried out in several ways:

By voluntarily entering work;

Through the mediation of employment services;

By sending the military commissariat to the place of passage of an alternative civil service in accordance with the decision of the draft commission and according to the plan Federal service on labor and employment;

According to the competition. A citizen’s entry into the civil service to fill a civil service position or a civil servant’s replacement of another civil service position is carried out based on the results of a competition. The competition consists of assessing the professional level of applicants for civil service positions and their compliance with the established qualification requirements for civil service positions.

The main method of recruiting civilian personnel to the Armed Forces of the Russian Federation is voluntary employment under an employment contract.

2.2. Classification of civilian personnel of the Armed Forces of the Russian Federation

The civilian personnel of the Armed Forces of the Russian Federation consists of:

A) persons employed under an employment contract. The overwhelming majority of civilian personnel of the Armed Forces of the Russian Federation do not belong to state civil servants and are engaged in labor activities on the basis of an employment contract concluded with a budgetary institution of the Ministry of Defense of the Russian Federation, a military unit (organization) in accordance with labor legislation. Their work is currently paid on the basisProvisionson the system of remuneration of civilian personnel of budgetary institutions of the Ministry of Defense of the Russian Federation operating in the field of education, medicine, culture, science, sports, tourism and health, editorial and publishing, as well as military units and other organizations of the Armed Forces of the Russian Federation (hereinafter referred to as the Regulations on the remuneration system for civilian personnel). This part of the civilian personnel is heterogeneous in composition and includes managers, specialists, technical performers and workers.

Civilian personnel work not only on the territory of Russia, but also abroad during the deployment of military units and organizations of the Armed Forces of the Russian Federation, other troops, military formations and bodies outside its territory. The issue of regulating the labor of these citizens is relevant not only in connection with the departmental legal regulation of the labor of civilian personnel sent to work, for example, in diplomatic missions of Russia or in representative offices of the federal executive authorities of the Russian Federation abroad (Art. 349 Labor Code of the Russian Federation). It has acquired particular significance at the present time, when Russia’s military presence in the countries of the post-Soviet space is expanding. These objective processes necessitate the use of civilian personnel in military units stationed outside Russia, recruited from among both citizens of the Russian Federation and foreign citizens (stateless persons). These military units do not belong to the representative offices of the Ministry of Defense of the Russian Federation or government agencies Russian Federation by definition (Art. Art. 55 And Civil Code of the Russian Federation), which does not allow the standards to be extended to their employeesCh. 53 Labor Code of the Russian Federation.

Involving citizens of the Russian Federation to work outside their place of permanent residence (in this case, abroad) in the specified military units complies with the provisionsArt. 64The Labor Code of the Russian Federation, which guarantees everyone the right to work, regardless of place of residence. Based on generally accepted principles of international law in the process labor activity such citizens in these military units do not leave the jurisdiction of the Russian Federation, since their lawful presence on the territory of a foreign state as part of a military contingent is determined by an international treaty. On this basis, their labor relations with the military unit are regulatedTK RF and other regulatory legal acts Russian Federation. Thus, by Decree of the Government of the Russian Federation of October 1, 1994 N 1122 (announced by the Orders of the Minister of Defense of the Russian Federation of August 17, 2002N 315and dated October 14, 2003N 363 ) civilian personnel working in military units and military organizations of the Armed Forces of the Russian Federation located at the Baikonur Cosmodrome leased from Kazakhstan and in the city of Leninsk are provided with increased wages, additional annual paid leave and other benefits.

Labor law standards of the Russian Federation also apply to workers at sea - crew members of support vessels Navy and workers performing labor duties on other warships sailing on the high seas under the St. Andrew's flag.

Military units of the Armed Forces of the Russian Federation located abroad have the right to recruit citizens of the host country to work, unless otherwise established by international treaties of Russia. Such agreements should also resolve the issue of extending the application of national or Russian labor legislation to such citizens.

In particular, social guarantees for citizens of Russia and Kazakhstan working at the Baikonur complex are provided by the national legislation of these states, except for cases provided for by an interstate agreement. For example, in accordance with Russian legislation, conducting a medical and social examination for citizens of both countries is entrusted to the establishment of a medical and social examination under the administration of the city of Baikonur; measures to promote the employment of these citizens are carried out by a specially created territorial body of the Federal Service for Labor and Employment; their state social insurance is carried out on the basis of the legislation of the Russian Federation at the expense of the Social Insurance Fund of the Russian Federation. These are the main provisions of the Agreement between the Government of the Russian Federation and the Government of the Republic of Kazakhstan on social guarantees for citizens of the Russian Federation and the Republic of Kazakhstan living and/or working at the Baikonur complex, dated October 12, 1998 (ratified by the Federalby lawdated December 6, 2000 N 144-FZ).

It should be emphasized that the national legislation of Russia puts forward certain requirements for the drafting of international treaties with the obligatory reflection in them of issues related to social protection their citizens, including in the field of labor relations.

Exceptions to the general rule of assigning auxiliary functions to the above-mentioned employees may be the following cases: when they temporarily fill vacant military positions or when they are recruited in some military units (according to lists of positions approved in a special manner) into combat crews and teams for combat duty. The list of individual vacant military positions that, under the terms of a fixed-term employment contract, can be filled by civilian personnel until they are filled with military personnel, is approved by the Minister of Defense of the Russian Federation. Such replacement is permitted by order of the commander of a military unit only in cases where no damage will be caused to the combat and mobilization training of troops, and in the absence of military personnel subordinate to civilian specialists. Moreover, the simultaneous combination of military duties and other work duties by civilian personnel is prohibited. Currently, the Armed Forces of the Russian Federation are acting on this matterOrder Minister of Defense of the Russian Federation dated January 28, 2004 N 20 “On approval of the List of military positions to be filled by senior and junior officers in the Armed Forces of the Russian Federation, which are allowed to be filled by civilian personnel”;

b) federal civil servants- citizens of the Russian Federation who have undertaken to perform civil service in state civil service positions in the Armed Forces of the Russian Federation. The named service in accordance with the Federal Law of May 27, 2003 “On the System civil service Russian Federation"(Article 2), along with military and law enforcement services, is a type of public service in the Russian Federation and has common conditions with them.

In the Armed Forces of the Russian Federation Federallaw dated July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation” (with subsequent amendments) applies to civil servants of the central military command bodies of the Armed Forces of the Russian Federation (the central military command bodies of the Armed Forces of the Russian Federation mean military command bodies, establishedBy decreePresident of the Russian Federation dated July 16, 1997 N 725c).

Taking into account the special legal status of persons holding positions in the state civil service, the specifics of remuneration for their labor in the corresponding positions in the Armed Forces of the Russian Federation are considered in this publication to the extent that they are not regulated by the above-mentioned Federal Law;

V) persons performing alternative civil service. Employees who, in the course of performing this service, have entered into an employment contract to work in military organizations of the Armed Forces of the Russian Federation are subject to labor legislation with features provided not only for this service, but also for the work of civilian personnel of these organizations. For 2008, by Order of the Ministry of Health and social development of the Russian Federation dated February 28, 2007 N 137 were approvedLists of types of work , professions, positions in which citizens performing alternative civil service can be employed, andorganizations, which provides for alternative civil service. Thus, the Ministry of Defense of the Russian Federation provides for alternative civilian service in the Federal State Unitary Enterprise "28th Military Plant", in the Federal State Unitary Enterprise "30th, 82nd Ship Repair Plants", in the Federal State Unitary Enterprise of the Northern Fleet "Severomorets".

Thus, citizens who, during the period of alternative civil service, work in organizations of the Ministry of Defense of the Russian Federation, are simultaneously in service-legal, as well as in labor relations and relations directly related to them (Art. 1 Labor Code of the Russian Federation).

At the same time, the legal status of workers assigned to work in the specified service is characterized by various legal restrictions that are not typical for the work of civilian personnel of the Armed Forces of the Russian Federation. Thus, they do not have the right to: terminate the employment contract on their own initiative (Art. 80 Labor Code of the Russian Federation), occupy leadership positions and work part-time in third party organizations, take part in events related to the suspension of the organization’s activities, take other actions and engage in activities provided forArt. 21Federal Law "On the State Civil Service of the Russian Federation". Some periods of these citizens being in labor relations established by law (for example, those associated with absenteeism, arrest made as a criminal or administrative penalty, appearing at work in a state of alcohol, drug or toxic intoxication, etc.) may not be counted towards the period of serving an alternative civil service. services. A special procedure is also provided for terminating an employment contract with these citizens.

2.2. Features and differences in the legal status of military personnel and civilian personnel of the Armed Forces of the Russian Federation

Civilian personnel of the Armed Forces of the Russian Federation make a significant contribution to solving complex and responsible tasks for the protection and defense of the state and the commonwealth countries.

According toArt. 12Federal Law No. 61-FZ of May 31, 1996 “On Defense” includes not only military personnel, but also civilian personnel as personnel of the Armed Forces of the Russian Federation. Currently, in the Armed Forces of the Russian Federation there are 800 thousand employees who work in the central bodies of military command, associations, formations, military units, institutions and other military organizations (hereinafter referred to as the military unit), as well as in federal executive authorities , in which the legislation of the Russian Federation provides for military service.

Civilian personnel of the Armed Forces of the Russian Federation means personnel of the Armed Forces of the Russian Federation, staffed by both citizens of the Russian Federation and foreign citizens who have entered into an employment contract for work or professional service activities in certain positions and specialties in the military units of the Armed Forces of the Russian Federation. in order to ensure that they fulfill their assigned tasks .

The civilian personnel of the Armed Forces of the Russian Federation within this state military organization have a special legal status, which differs fundamentally from the legal status of the main part of its personnel - military personnel. These differences in their legal status are inherent to all civilian personnel, which consists of persons engaged in work under an employment contract, and federal civil servants whose professional official activity According to the employment contract, he belongs to the federal state civil service. The named civilian personnel service, along with military and law enforcement services, is a type of federal public service in the Russian Federation and has common conditions with them.

Federal civil servants from among the civilian personnel of the Armed Forces of the Russian Federation include citizens of the Russian Federation who carry out professional official activities in positions of the federal state civil service, receive monetary remuneration from the federal budget and perform duties to ensure the execution of the powers of the Ministry of Defense of the Russian Federation or as substitutes. government positions of the Russian Federation. In the Armed Forces of the Russian Federation, these include positions of central military command and control bodies of the Armed Forces of the Russian Federation (administration of branches and services of the Armed Forces of the Russian Federation; administration of districts, fleets and equivalent military administration bodies; administration of armies, flotillas and equivalent military administration bodies).

Specific job titles for federal civil servants are providedConsolidated listgovernment positions of the Russian Federation andRegistry public positions of federal civil servants, approved by Decrees of the President of the Russian Federation of January 11, 1995, No. 32 and No. 33, respectively. Public positions are divided into three categories (positions of categories “A”, “B” and “C”), and public positions of categories “B” and “C” of the federal civil service are classified into the following five groups: senior, main, leading, senior and junior civil service positions.

The professional work activities of federal civil servants are regulated not only by labor legislation, but also by the Federalby lawdated July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation”. He established the features of its implementation in comparison with both military service (intraspecific features of civil service) and with the work of other civilian personnel.

The overwhelming majority of civilian personnel of the Armed Forces of the Russian Federation are not federal civil servants and are engaged in labor activities on the basis of an employment contract concluded with a military unit in accordance with labor legislation. Their work is paid on the basis of the Unified Tariff Schedule. This part of the civilian personnel is not homogeneous in composition and includes managers, specialists, technical performers and workers. Separate normative legal acts containing labor law standards provide for the peculiarities of the work of civilian personnel of military units in comparison with employees of other organizations.

Besides ConstitutionRussian Federation, the legal status of civilian personnel of the Armed Forces of the Russian Federation is determined by the above-mentioned federal laws,TK Russian Federation, other federal laws. As providedArt. 349According to the Labor Code of the Russian Federation, employees who have entered into an employment contract to work in military units of the Armed Forces of the Russian Federation are subject to labor legislation, with the specifics established by federal laws and other regulatory legal acts. However, to date, no special law on the specifics of regulating the labor of civilian personnel has been adopted. In this regard, his working conditions are regulated not only by general standardsTK RF, other federal laws, decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation, laws of the constituent entities of the Russian Federation, interdepartmental decrees of federal executive bodies, but also special by-laws regulations. The latter establish the specifics of applying labor law norms to official and other labor activities of civilian personnel, based on their specifics. The list of such regulatory legal acts issued at various levels of rule-making activity is quite wide, but most of them are regulatory legal acts of the Ministry of Labor and Social Development of the Russian Federation and departmental regulatory acts of the Ministry of Defense of the Russian Federation.

Unlike military personnel, civilian personnel in military units, as a rule, perform auxiliary functions to ensure the daily activities of the Armed Forces of the Russian Federation, maintaining their combat readiness and combat capability. He is busy with medical and consumer services for troops, their logistical support, takes part in repair and construction, cultural and leisure work and other types of service work. For a more complete description of the functions they perform, it should be taken into account that the civilian personnel of the Armed Forces of the Russian Federation primarily consists of non-combatants, who, in accordance with international legal norms, are defined as persons, although belonging to the armed forces, but not directly participating in hostilities. At the same time, if captured by the enemy, they, like combatants, are recognized as prisoners of war.

Exceptions to the general rule of assigning auxiliary functions to employees may be cases where they temporarily fill vacant military positions or involve them in some military units (according to lists of positions approved in a special manner) as part of combat crews and teams for combat duty. The list of individual vacant military positions that, under the terms of a fixed-term employment contract, can be filled by civilian personnel until they are filled with military personnel, is approved by the Minister of Defense of the Russian Federation. Such replacement is permitted by order of the commander of a military unit only in cases where no damage will be caused to the combat and mobilization training of troops, and in the absence of military personnel subordinate to civilian specialists. Moreover, the simultaneous combination of military duties and other work duties by civilian personnel is prohibited. Currently, the Armed Forces of the Russian Federation are acting on this matterOrderMinister of Defense of the Russian Federation dated January 28, 2004 N 20 “On approval of the List of military positions to be filled by senior and junior officers in the RF Armed Forces, which are allowed to be filled by civilian personnel.”

Since November 18, 2003, after amendments were made to the Federallaw"On the legal status of foreign citizens in the Russian Federation" the civilian personnel of the RF Armed Forces may also include foreign citizens.

Taking into account the number of civilian personnel of the RF Armed Forces, other troops and military formations, the requirementArt. 349The Labor Code of the Russian Federation, as well as numerous features of their work established by various regulatory legal acts, there is a need to analyze their legal status and summarize the current legislation on this issue.

2.2. Remuneration of civilian personnel of the Armed Forces of the Russian Federation

The work of employees of military units (civilian personnel) often takes place in special conditions, and therefore the payment for their labor has certain features, which is reflected both in the procedure for establishing their official salaries (tariff rates), and in the procedure for establishing compensation and incentive payments for them .

At the state level, wage guarantees have been establishedArt. 130 Labor Code of the Russian Federation. The system of basic guarantees includes: amount minimum size wages in the Russian Federation; measures to ensure an increase in the level of real content wages, limiting the list of grounds and amounts of deductions from wages by order of the employer, as well as the amount of taxation of income from wages, limiting payment in kind, ensuring that the employee receives wages in the event of termination of the employer’s activities and its insolvency in accordance with federal laws, and some other measures. The monthly salary of an employee who has worked standard working hours during this period and fulfilled labor standards (job duties) cannot be lower than the established one. federal law minimum wage.

Organizations financed from the federal budget, the minimum wage is provided from the federal budget, extra-budgetary funds, as well as funds received from entrepreneurial and other income-generating activities.

CHAPTER 3. Labor and responsibility of civilian personnel of the Armed Forces of the Russian Federation

3.1. Material liability of civilian personnel of the Armed Forces of the Russian Federation

The main task of military reform at present is to maintain high level combat and mobilization readiness of the Armed Forces of the Russian Federation. This determines increased requirements for the safety of weapons systems, military, special equipment and other military equipment as the material basis for the combat effectiveness and combat readiness of troops. Currently, the system of the Ministry of Defense of the Russian Federation employs over 800 thousand civilian personnel who make a significant contribution to solving complex tasks facing the Armed Forces.

The transition to market relations and the implementation of measures in the country to introduce predominantly economic management methods require increased efficiency in the use of all legal means in the fight against mismanagement and waste. A special role here is given to labor law norms and other legal acts regulating compensation material damage caused by workers to employers.

Legal regulation of the material liability of civilian personnel of the Armed Forces for the material damage they cause to the state is acquiring particular significance and relevance today. The main legal acts (especially departmental and local ones) regulating this legal institution were adopted more than 20 years ago and do not fully meet modern requirements.

Constitution of the Russian Federation (v. 8)recognizes and protects equally state, municipal, private and other forms of property. An employee may bear financial liability simultaneously with disciplinary, administrative or even criminal liability for this offense.

Material liability under Russian labor law is an independent type of legal liability.

Caring for the organization's property remains one of the main responsibilities of an employee under an employment contract. In cases where he violated this obligation, as a result of which the employer suffered property damage, the employee is obliged to compensate for this damage. In other words, the employee is held liable, which is defined as a measure of state coercion, which consists of imposing on him the obligation to compensate, in the manner and amount established by law, for damage caused through his fault to the organization with which he has an employment relationship.

The rules of law do not define the fundamental features of the material liability of civilian personnel, which distinguish this legal institution from other types of legal liability.

Financial liability according to labor law must be distinguished from other measures of material influence, namely: deprivation or reduction of the amount of bonuses provided for by the remuneration system and remuneration at the end of the year; reducing the coefficient of labor participation in the brigade (collective) form of organization and stimulation of labor, deductions from wages made on the basis of the law. The regulations governing compensation for material damage caused to the employer are intended to:

firstly, to ensure the safety of his property and prevent facts of mismanagement and waste;

secondly, to help strengthen labor discipline;

thirdly, to ensure the protection of workers' wages from excessive and illegal deductions.

Financial responsibility encourages employees to work in such a way that there is no damage, loss, destruction, or theft of material assets. It is called upon to play a serious role in the fight against violations of state discipline, which may include distortions of operational and financial statements and postscripts. Such phenomena not only cause significant harm to the normal activities of organizations, but also cause material damage, which is expressed, as a rule, in the theft of unaccounted for or unspent material assets.

Financial liability is the legal obligation of an employee to compensate, in the amount and procedure established by law, for direct actual damage caused to a military unit (military organization) by his unlawful and guilty actions (inaction).

The basis for bringing an employee to financial liability is the presence of direct actual damage.

The employee bears financial responsibility both for direct actual damage directly caused by him to the military unit (military organization), and for damage incurred by the employer as a result of damage caused by him to other persons.

The amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses, calculated on the basis of market prices prevailing in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of depreciation of this property.

The employee's financial liability is excluded in cases of damage arising due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer's failure to fulfill the obligation to provide adequate conditions for storing property entrusted to the employee. The damage must be real, not imaginary.

In labor legislation, the amount of damage does not include income not received by the military unit (military organization).

Thus, initially the commander of the military unit (employer) needs to establish the presence of direct actual damage in the employee’s actions. Only after this should one begin to clarify questions about the presence of the following conditions in the employee’s actions:

illegality of actions or inactions that caused damage;

guilt in the form of intent or negligence (the form of guilt affects the type of liability for some property);

the presence of a causal connection between the employee’s culpable illegal actions and the damage caused by him.

These conditions are mandatory, and in the absence of at least one of them, the employee cannot be held financially liable.

The employer (commander of a military unit, institution, etc.) has the right, taking into account the specific circumstances of the damage caused, to refuse to recover it in whole or in part.

Illegality of employee behavior. Unlawful behavior means that the damage was caused due to the employee’s failure to perform or dishonest performance of his work duties. These responsibilities are usually specified in special acts that determine the procedure for saving, storing and using property and other material assets. Such acts, in addition to laws, decrees and orders of the Government of the Russian Federation, decrees of the President of the Russian Federation (i.e. regulations adopted centrally), also include internal regulations, job descriptions, orders and instructions of the command of a military unit.

Causality. This is a connection in which the damage is caused directly by the employee’s unlawful behavior, or another causal connection in which the employee’s behavior created a situation that resulted in material damage.

The above two conditions, including direct actual damage, form the objective side of the offense, which entails holding the employee financially liable.

The employee's fault. Guilt constitutes the subjective side of this offense. Guilt in the form of intent or negligence as a condition of financial liability is characterized by the fact that the employee who caused the damage was aware of the unlawful nature of his behavior and foresaw that his behavior would lead or could lead to damage.

The burden of proving the employee’s guilt and its form lies with general rule at the employer(art. 247 Labor Code of the Russian Federation). There is one exception to this rule. If employees bear financial liability by virtue of a special law, an agreement on full financial liability for entrusted values, or when property and other valuables were received by employees under the account of a one-time power of attorney or other one-time documents, then they are required to prove the absence of their guilt in causing damage.

In theory and in practice, there is currently no sufficiently clear understanding of the specific focus of measures of material liability for civilian personnel, and the main criteria for damage subject to compensation under the provisions of the legislation on material liability have not been established.

In connection with the increasing role of economic sanctions for various offenses in the economic sphere, there is a need for a certain differentiation of the amount of compensation for damage depending on the field of activity and the personal liability of civilian personnel. However, the labor legislation does not define the concept of job risk and does not establish the conditions for its occurrence. These circumstances in practice often lead to civil personnel being held liable for the full amount of damage caused, without taking into account the circumstances in which it was caused.

Some aspects of the procedural procedure for holding civilian personnel liable are not fully developed in theory. The lack of legal norms establishing the procedural rights and obligations of participants in an administrative investigation conducted on facts of causing material damage to the state has a negative impact on ensuring the legality of bringing to financial liability.

The legislation on the material liability of civilian personnel does not sufficiently regulate the issues of compensation for material damage by civilian personnel in court; no procedural procedure has been established for judicial appeal of orders of commanders (superiors) to hold civilian personnel financially liable. The issue of financial liability for the full amount of damage in conditions of inflation, etc. has not been resolved.

Gaps in the legal regulation of the procedural procedure for holding civilian personnel liable are sometimes filled by contradictory judicial practice.

When regulating many issues of holding civilian personnel liable, there are no special recommendations that would allow solving the above problems without compromising the combat readiness and combat effectiveness of troops.

Thus, the unresolvedness in theory, legislation and practice of the above-mentioned problems of the legal institution of material liability of civilian personnel of the Armed Forces has a negative impact on the state of the material basis of the combat capability and combat readiness of the troops. Taking into account the action of the LaborcodeRussian Federation there is a need to revise a number of regulatory legal acts related to this legal institution, as they have lost their legal force in modern market economic conditions.

3.2. The procedure for applying disciplinary sanctions to civilian personnelArmed Forces of the Russian Federation

According to Art. 27 of the Charter of the Internal Service of the Armed Forces of the Russian Federation, military personnel are subject to disciplinary liability for disciplinary offenses, that is, for unlawful, guilty actions (inaction), expressed in violation of military discipline, which, in accordance with the legislation of the Russian Federation, do not entail criminal or administrative liability.

This Charter governs military personnel of military command and control bodies, military units, ships, enterprises, organizations of the Armed Forces of the Russian Federation, including military educational institutions of professional education of the Ministry of Defense of the Russian Federation (hereinafter referred to as military units), and civilian personnel holding military positions. The provisions of the Charter, including the duties of the main officials of the regiment and its units, in equally apply to military personnel of all military units and units.

Types of disciplinary offenses

A disciplinary offense can be ongoing, repeated or terminated.

A continuing disciplinary offense is an offense that continues over a long period of time. If, having discovered a disciplinary offense, the employer applied a disciplinary sanction, but this disciplinary offense continues (this particular offense, and not the next, even similar one), then a new disciplinary sanction can be applied to the employee (including dismissal on appropriate grounds).

A continuing disciplinary offense continues uninterrupted until it is stopped. The employer applies disciplinary action precisely in order to suppress behavior expressed in non-fulfillment or improper fulfillment of a specific job duty. If it is not fulfilled (i.e., bringing the employee to disciplinary liability failed to stop this disciplinary offense), the employer has the right to apply a new disciplinary sanction for this offense. For example, an employee is reprimanded for late preparation of established reports. However, even after the disciplinary sanction was applied, the employee did not prepare reports within the time allotted to him by the employer. In this case, the employer did not stop the misconduct by applying a disciplinary sanction, and he has the right to exercise his right to apply a new disciplinary sanction. Naturally, this is only legal if the employee is actually guilty of an offense.

Repeated disciplinary offense is an offense committed again after a certain time has passed after the suppression of a similar offense. For example, an employee, after being reprimanded for being late for work, comes to work at set time, but after some time he is late for work again. In this case, both offenses are regarded as two separate ones, for each of which the employer can impose a disciplinary sanction in case of guilty actions of the employee.

Discontinued disciplinary offense. If an employee has committed a disciplinary offense (for example, made an error in a report, independently discovered it and used all the methods available to him to eliminate or minimize the error or eliminate the negative consequences of his misconduct), then this should be regarded as a mitigating circumstance and is a basis for non-application to the employee disciplinary action or its mitigation.

Removal of disciplinary action

In accordance withPart 1 Art. 194 If, within a year from the date of application of the disciplinary sanction, the employee is not subject to a new disciplinary sanction, then he is considered to have no disciplinary sanction. Therefore, before determining whether the next offense gives grounds to believe that there is a repeated failure by the employee to fulfill his duties, you should review the orders for personnel (personnel) on the application of disciplinary sanctions or another document recording penalties and thus find out whether the previously imposed disciplinary action.

A disciplinary sanction can also be lifted from an employee before the expiration of the one-year period. The employer, before the expiration of a year from the date of application of the disciplinary sanction, has the right to remove it from the employee (Part 2 Art. 194 Labor Code of the Russian Federation):

1. On your own initiative.

The employer, based on his own observations of the employee, can issue an order (instruction) to lift a disciplinary sanction for the employee’s impeccable behavior, high performance in work, etc. As a rule, monitoring the behavior of an employee after a disciplinary sanction has been imposed on him is entrusted to his boss and (or) employees personnel bodies, who in this case will act as the initiators of the removal of the disciplinary sanction.

2. At the request of the employee himself.

The employee, realizing his unlawful behavior, made some efforts to correct the consequences of a previously committed disciplinary offense, establishing himself on the positive side.

The employee must independently submit his request for the removal of a disciplinary sanction in writing in the form of an application addressed to the head of the organization or the person whose administrative act imposed the disciplinary sanction.

3. At the request of the employee’s immediate supervisor.

4. At the request of the representative body of workers. The representative body may express its opinion in the same form as the employee’s immediate supervisor (i.e., in a petition or presentation).

A petition to lift a disciplinary sanction against an employee may be accepted at a meeting of the labor collective. In this case, it is recorded in the minutes of the meeting and must be reviewed by the employer.

The final decision on whether or not to lift a disciplinary sanction based on a request from an employee, a petition from an immediate supervisor or a representative body of employees is made by the employer (the person by whose administrative act the disciplinary sanction was applied).

To remove a disciplinary sanction, the employer issues an order (instruction), on the basis of which the relevant information is entered into the personnel records documents.

Responsibility for disciplinary offenses

When an employee commits a disciplinary offense, bringing him to disciplinary liability is the right, and not the obligation, of the employer (the employer also means the commander of the military unit). In certain cases, it may be limited, for example, to a conversation or a verbal warning.

There are two types of disciplinary liability: general, provided for by Laborcode of the Russian Federation (Labor Code of the Russian Federation), and special, which is borne by employees in accordance with federal laws, charters and regulations on discipline.

In case of general disciplinary liability, the list of penalties provided forArt. 192The Labor Code of the Russian Federation is comprehensive, the procedure for their application is strictly regulated by the Labor Code of the Russian Federation. Acts on special disciplinary liability may also provide for more stringent penalties, as well as a special procedure for their imposition, different from those that employees bear under general disciplinary liability, although in case of special penalties, the measures provided for inArt. 192 Labor Code of the Russian Federation. For example, Charteron employee discipline maritime transport, approved by Decree of the Government of the Russian Federation of May 23, 2000 N 395, stipulates that a violation of labor discipline by a maritime transport worker on board a ship is recognized as a disciplinary offense, in office premises and on the territory of maritime transport organizations.

The application of a disciplinary sanction does not relieve the employee who committed the offense from other liability provided for by law.

According toArt. 192 According to the Labor Code of the Russian Federation, a disciplinary offense is the failure or improper performance by an employee, through his fault, of the labor duties assigned to him.

When choosing a disciplinary sanction, employers, as a rule, trying to punish the offending employee more severely and give a kind of “lesson” to others, very often immediately give preference to a more severe measure. And they turn out to be wrong, because according toPart 5 Art. 192The Labor Code of the Russian Federation is obliged to take into account the severity of the offense committed and the circumstances under which it was committed.

The severity of the offense committed is determined by the harm caused to the organization. This may be expressed, for example, as a loss.

The circumstances of the commission of an offense can be divided into two types: mitigating and aggravating punishment.

Circumstances mitigating punishment include:

Committing an offense for the first time;

Committing an offense through negligence;

Committing an offense a minor worker, a pregnant woman;

The insignificance of the harm caused by the offense;

Sincere repentance of the offender and his cooperation with the administration when considering a disciplinary offense, etc.

Circumstances aggravating liability can be considered:

Repeated commission of the offense;

The onset of severe consequences for the organization due to misconduct;

Deliberate actions of the offender;

Committing an offense while under the influence of narcotic, toxic or other intoxication;

An attempt to hide the fact of a violation;

Refusal to cooperate with the administration during the investigation;

Involvement of other employees in committing a violation, etc.

It is advisable to include a classification of violations by severity and a list of mitigating and aggravating circumstances in the internal labor regulations of the organization.

For committing a disciplinary offense, the employer has the right to apply the following disciplinary sanctions:

1) remark;

2) reprimand;

3) dismissal.

According to Art. 192 Disciplinary sanctions also include dismissal of an employee on the grounds provided for by the Labor Code of the Russian Federationp. p. 5, , or 10 hours 1 tbsp. 81 , clause 1 art. 336 or Art. 348.11 , paragraph 7 or 8 hours 1 tbsp. 81 Labor Code of the Russian Federation, in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by an employee at the place of work and in connection with the performance of his job duties.

Once again, attention should be paid to the fact that dismissal can be a type of disciplinary sanction. This means that upon dismissal for the above reasons, the requirements of the Labor Code of the Russian Federation must be observed, which relate not only to the dismissal procedure, but also to the rules governing the procedure and conditions for applying disciplinary sanctions (Art. Art. 192- Labor Code of the Russian Federation).

When considering labor conflicts in court or otherwise, the employer will need to prove:

Guilt of the employee’s actions;

The correctness of the procedure for imposing disciplinary sanctions.

Application of disciplinary sanctions

The documented procedure for imposing a disciplinary sanction can be presented in the following sequence:

1. Documentary recording of the offense.

2. Requesting written explanations from the employee.

3. Imposition of disciplinary sanctions.

Documentary recording of the employee’s misconduct.Article 189 The Labor Code of the Russian Federation establishes that labor discipline is obligatory for all employees to obey the rules of conduct determined in accordance with the Labor Code of the Russian Federation, other federal laws, a collective agreement (employment contract), agreements, and local regulations of the organization. Thus, before applying a disciplinary sanction to an employee, the employer must determine whether the employee violated his job duties established by the employment contract, job description. The employee’s job responsibilities also include compliance with internal labor regulations, labor safety instructions and other local regulations that exist in the organization and with which the employee must be familiarized when hired (Art. 68Labor Code of the Russian Federation), as well as when they are changed or introduced (Art. 22 Labor Code of the Russian Federation). To confirm the fact that the employee has familiarized himself with the requirements of these documents, the employer will need to prove the fact of familiarization in the event of a conflict - this must be evidenced by the employee’s signature on familiarization and the personally affixed date of familiarization. This is important point to confirm the legality of the disciplinary sanction.

The employer must make sure that the violation committed by the employee meets all the signs of a disciplinary offense (Art. 192Labor Code of the Russian Federation) - non-fulfillment or improper fulfillment by an employee (through his fault) of his labor duties. In this case, the following circumstances must be taken into account at the same time:

1. Imperfection certain actions(or abstaining from committing them), which are the employee’s labor duties.

If the case is heard in court, the employer will need to prove that the action for which the penalty was imposed was actually within the scope of the employee’s duties.

2. Labor duties must not be performed or performed improperly.

Failure to fulfill the obligation must be proven: provide testimony of witnesses, documents, for example, time sheets, etc.

3. The employee’s behavior must be unlawful (i.e., not comply with the law and obligations under the employment contract).

Disciplinary action cannot be imposed for lawful behavior. For example, an employee who refuses to divide annual leave into parts cannot be brought to disciplinary liability.

4. Illegal behavior must be related to the employee’s performance of work duties. Penalties cannot be imposed for refusal to carry out a public order or violation of rules of conduct in public places.

5. The employee's conduct must be culpable (i.e., intentional or reckless). A penalty cannot be imposed if there are valid reasons why the employee could not fulfill the obligation properly, for example:

Absence necessary materials, working conditions;

Disability;

Summons to court, to law enforcement agencies;

Floods, snowfalls and other natural disasters;

Carrying out other tasks if it was impossible to do everything at the same time.

For example, when considering an employee’s refusal to comply with an order concerning him or a manager’s order, the court needs to find out what caused this refusal and how legitimate the demand coming from the manager is. In particular, the reason for an employee’s refusal to perform the work assigned to him by his manager may be that this work, in the opinion of the person who refused, is not provided for by the employment contract. If the circumstances referred to by the employee actually occur, then his refusal to comply with the order, as a rule, does not entail the application of disciplinary measures.The Labor Code of the Russian Federation prohibits an employer from requiring an employee to perform work not stipulated by an employment contract, except for cases provided for by the Labor Code of the Russian Federation and other federal laws.

It is also impossible to exclude the employee’s conscientious misconception about the existence of circumstances allowing him to refuse to carry out the order (instruction). However, in this case, the manager or authorized persons, before applying a disciplinary sanction to the employee, should have explained to him the inconsistency of the refusal and its consequences.

Supreme Court of the Russian Federation inResolution Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 (taking into account the changes and additions madeResolutionPlenum of the Supreme Court of the Russian Federation dated December 28, 2006 N 63), analyzing judicial practice in cases of disciplinary liability of an employee, pointed out individual cases of employee behavior that can be considered a disciplinary offense. In such cases, taking into account the provisionsTK RF, include:

a) the employee’s absence from work without good reason for more than four hours in a row during the working day, as well as his presence during the specified period without good reason at a workplace other than the one where the employee is supposed to perform his job function;

b) refusal of an employee, without good reason, to perform labor duties in connection with a change in labor standards in accordance with the established procedure (Art. 162Labor Code of the Russian Federation), since by virtue of the employment contract the employee is obliged to perform the labor function defined by this contract, to comply with the internal labor regulations in force in the organization (Art. 56 Labor Code of the Russian Federation), comply with established labor standards (Art. 21Labor Code of the Russian Federation). It should be borne in mind that refusal to continue work due to a change in working conditions determined by the parties is not a violation of labor discipline; it serves as a basis for termination of the employment contract underclause 7 art. 77 Labor Code of the Russian Federation in compliance with the procedure provided forArt. 74 Labor Code of the Russian Federation;

c) refusal or evasion of an employee without good reason from a mandatory medical examination provided for workers in certain professions, as well as the employee’s refusal to undergo it during working hours special education and passing exams on safety precautions and operating rules, if this is prerequisite permission to work;

d) refusal of an employee, without good reason, to enter into an agreement on full financial liability, if the fulfillment of duties for servicing material assets constitutes the employee’s main job function, which was previously agreed upon with him when hiring.

Requesting an explanation from the employee. The employer is obliged to listen to the employee's explanation before applying disciplinary action. The explanation must be provided in writing.

The employee has the right to present his explanation different ways. First of all, in the explanatory note. This document is drawn up by the employee in any form by hand. It reflects:

What are the reasons (motives) for committing a disciplinary offense;

Does the employee consider himself guilty of committing an offense;

If not, who, in the employee's opinion, should be subject to disciplinary action.

The explanatory note is addressed to the person conducting the investigation.

Another option for obtaining explanations is to record the employee’s explanations in the act drawn up upon the commission of a disciplinary offense, by having the employee certify his explanations with a handwritten signature.

According to Part 2 Art. 193 According to the Labor Code of the Russian Federation, an employee’s refusal to give an explanation is not an obstacle to applying disciplinary action. However, it does not at all follow from this that if an employee refuses to explain the reasons for his behavior, then the employer can apply disciplinary action.

In accordance withparagraph 53Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, when applying disciplinary sanctions, constitutional principles must be observed: justice, equality, proportionality, legality, humanism.

The employer must prove that when imposing the penalty, the following were taken into account:

The severity of the offense;

The circumstances under which it was committed;

Previous behavior of the employee;

His attitude towards work.

If the court comes to the conclusion that misconduct occurred, but the dismissal was made without taking into account the specified circumstances, then the employee’s claim for reinstatement may be satisfied.

Imposition of disciplinary action. The imposition of a disciplinary sanction is expressed in the issuance of an order in writing and notification of this order to the employee against signature.

In case of application of dismissal, the unified form N T-8 is used "Order(order) on termination (termination) of an employment contract with an employee (dismissal)", provided for by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1 "On approval unified forms primary accounting documentation for labor accounting and payment."

For the application of other types of disciplinary sanctions, unified forms are not provided; therefore, orders (instructions) are drawn up in any form. The text of the order must contain stating and administrative parts. The stating part briefly reflects the essence of the disciplinary offense, indicating the provisions of regulations and other documents that the employee violated. The administrative part indicates the last name, first name, patronymic, position (profession) of the employee and the measure of the penalty applied. As a basis for applying a disciplinary sanction, the order (instruction) lists the documents collected by the employer - memos, acts, explanatory letter employee.

When imposing a disciplinary sanction, it is recommended that the draft order be endorsed by the head of the legal service (the organization’s lawyer). The approval must be preceded by a check of the order (instruction) for compliance with the legislation of the applied disciplinary sanction and compliance with the deadlines for bringing to disciplinary liability. The head of the legal service (the organization's lawyer) must familiarize himself with all materials relating to the disciplinary offense, as well as the explanations of the employee in respect of whom a draft order (instruction) on the application of a disciplinary sanction has been prepared.

Mandatory rules, failure to comply with which may result in the cancellation of the disciplinary sanction and reinstatement of the employee at work, are:

1. Application of several disciplinary sanctions for one disciplinary offense.

At the same time, if failure to perform or improper performance due to the fault of the employee of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction, it is permissible to apply a new disciplinary sanction to him (including dismissal).

It is unacceptable for an employee to be subject to one disciplinary sanction, such as a reprimand, for committing one disciplinary offense, and then another for the same offense. For example, if an employer, after receiving an explanation, reprimanded the employee for showing up at work very late (more than four hours) and issued an appropriate order, then he does not have the right to apply a second disciplinary sanction to this employee for the same disciplinary offense, for example, dismissal employee according tosubp. "a" clause 6, part 1, art. 81Labor Code of the Russian Federation. By reprimanding the employee, the employer thus exercised his right to choose the type of disciplinary sanction and does not have the right to exceed his authority.

The exception is for a continuing misdemeanor.

2. Within two working days before applying a penalty, it is necessary to require a written explanation from the employee. This is necessary to establish the employee’s guilt. If an explanation is required after a penalty is imposed, then the penalty was applied illegally (even if the employee was guilty of the violation).

3. Disciplinary action is applied immediately after the discovery of the misconduct, but no later than a month from the date of its discovery. The day of detection is the day when the employee’s immediate supervisor became aware of the misconduct, regardless of whether he has the right to impose disciplinary sanctions. The monthly period does not include the time of illness or the employee being on vacation (any) and the time required to take into account the opinion of the representative body of employees. The absence of an employee for other reasons (for example, using other days of rest instead of overtime worked) does not interrupt the flow of the specified period. Regardless of when the misconduct is discovered, the penalty cannot be applied later than six months from the date of the commission of the misconduct, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

4. An order (instruction) on the application of a disciplinary sanction, indicating the reasons for its application, is announced to the employee against signature within three working days from the date of its publication. Failure to comply with the three-day period may become grounds for appealing the penalty. Refusal to certify an order (instruction) with a signature is documented in a special act signed by the head and witnesses. Such refusal is not an obstacle to applying disciplinary sanctions.

5. If the case goes to court, then the most important thing for the employer will be to prove the circumstances justifying the legality of his position, in particular, to present and justify the facts of committing a disciplinary offense and compliance with the procedure for imposing disciplinary sanctions. The employer must, on his own initiative, provide evidence of the circumstances relevant to the case. Otherwise, the court decision in his favor will be canceled by a higher authority due to insufficient investigation of the circumstances.

6. The documents and other evidence submitted by the employer must not contradict each other. For example, when recovering for lateness or absence from the workplace, the employer often focuses on explanatory notes and reports, orders, entries in the work book of the dismissed person, but does not ensure that the employee’s absence is reflected in the time sheet.

The following may be used as evidence in court:

Witness testimony, written explanations of eyewitnesses;

Written evidence: acts, contracts, certificates, business correspondence (court orders, protocols and appendices to them - diagrams, maps, plans, drawings) and other documents and materials (including those received via fax, electronic or other types of communication);

Evidence;

Audio and video recordings;

Expert opinions.

It happens that an employee deliberately hides from the employer the fact of his disability or membership in a trade union, and then appeals the penalty applied. INparagraph 27Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 emphasizes that such a situation is unacceptable and is an abuse of rights on the part of the employee. The employer should not be held liable for adverse consequences resulting from dishonest actions on the part of the employee. If the employee does not provide such information, this is an abuse of right and may serve as a basis for refusing a claim to declare the penalty unlawful.

Information about imposed disciplinary sanctions, with the exception of cases where the disciplinary sanction is dismissal, is not entered into the work book (Art. 66 Labor Code of the Russian Federation) and in personal cardemployee (Form N T-2).

3.4. Grounds for termination of an employment contract with civilian personnel of the Armed Forces of the Russian Federation

The current issues of observing the rights of civilian personnel, paying them the required compensation and providing the providedTK RF guarantees in case of dismissal due to reduction in number or staff.

The work of civilian personnel of the Russian Armed Forces often takes place under special conditions than work in peaceful sectors of the country's economy. Unfortunately, despite this, the incomes of civilian specialists in the army and navy are, at best, on the same level as the incomes of their state-employed colleagues who are not part of the military structure of the state. There is no talk at all about the rapid growth of well-being, like that of military personnel. The very status of civilian personnel of the Armed Forces of the Russian Federation is also far from 100% meeting the requirements of the new-look army, which causes a lot of problems for both workers and employers.

The Ministry of Defense of the Russian Federation, as follows from those entering military units, budgetary institutions This ministry of directives, telegrams, instructions, solves the issues of improving the material support of civilian personnel radically - by dismissing (due to a reduction in the number or staff) of workers.

For example, military units received a telegram signed by the Chief of the General Staff , about the transition to an outsourcing system ensuring all spheres of life of the Armed Forces of the Russian Federation, which provides for the exclusion from the staff of subordinate formations, military units (until December 31, 2011) of structural units performing (supporting) functions unusual for the Armed Forces (repair and restoration, operation of military infrastructure, vehicle support, organizing catering for personnel, refilling fuel and lubricants, bath and laundry services, clothing supplies, etc.). Preschool children also fall into this category. educational institutions Ministry of Defense of the Russian Federation. It was proposed to notify all employees of these structural divisions of the upcoming dismissal on the basisArt. 180 Labor Code of the Russian Federation.

It should be noted right away that the telegram itself is not a basis for starting procedures for reducing civilian personnel. It is necessary to make changes to the staffing table and approve them in the prescribed manner (or approve a new staffing table). It is this document that makes it possible to establish which positions (structural units) will be reduced, what vacant positions there are in the military unit to which the employee can be transferred. Informing all employees “in advance” about planned layoffs is illegal and, apart from aggravating the social situation in the teams and mass appeals to the courts, does not achieve anything.

Any reduction must be real and not fictitious.TKThe Russian Federation provides as a basis for termination of an employment contract a reduction in the number or staff of employees. In both cases, the reduction entails the exclusion from the staffing table of either staff units for the position of the same name (profession, specialty), or the position itself. Real reduction means that in order to perform a labor function, i.e. work in the position, profession, specialty performed by the laid-off employee will not be hired by another employee.

Taking into account the above circumstances, the issues of observing the rights of civilian personnel, paying them the required compensation and providing the providedTK RF guarantees for dismissal due to reduction in numbers or staff are topical and relevant.

Forgotten Rules

Thus, employees often have to face a situation where they need knowledge of regulatory legal acts that were adopted back in the 30s of the last century, but continue to be in force at the present time, to the extent that they do not contradictTKRF, and are applied by courts when authorizing labor disputes.

Let's give an example. The military unit is undergoing organizational and staffing measures related to the reduction of civilian personnel. A number of employees have unused vacations for the past working year and five and a half months of the current year.

The employer unconditionally pays compensation for a fully worked working year, and for the remaining five and a half months pays compensation for unused vacation in proportion to the time worked. The employee, not agreeing with the actions of the commander of the military unit, went to court demanding payment of compensation for the second unused leave in full. Are the employee's demands legal?

As follows from the Rules on regular and additional leaves, approved by the Decree of the People's Commissariat of the USSR on April 30, 1930 N 169 with subsequent editions, which are valid(clause 28) , employees dismissed due to staff reduction and who have worked for at least 5.5 months and have not used their right to leave are paid compensation for unused leave in full. This legal position was confirmed by a judicial act (case No. 33-28981 of the Moscow City Court).

Who to leave?

Many disputes arise when determining the preferential right to remain at work. How (how) can we confirm in practice higher labor productivity and qualifications of workers? Should the employer make some special decision that labor productivity and employee qualifications are recognized as equal or, conversely, that one employee is inferior to another in terms of these indicators? Should these indicators be assessed only in relation to employees performing the same range of duties (occupying the same position), or can the indicators of different employees be compared?TKThe Russian Federation does not contain an answer to the question of how higher labor productivity and qualifications are determined. To resolve this issue, what matters is the level of education of the employee (an employee with higher education will have an advantage over an employee with secondary vocational education; with a higher rank - before an employee with a lower rank), and specific work results (for example, achieving certain indicators and results in work). The need to find out which of the employees has higher labor productivity and qualifications arises when the number of employees is reduced, when staffing positions for the same position are reduced. When reducing staff, there is no need to clarify this issue, sinceTK RF we're talking about about the preferential right to remain at work, and in case of staff reduction, the position itself is excluded. According toArt. 81According to the Labor Code of the Russian Federation, an employee whose position is subject to reduction must be offered a transfer to another job.

Peculiarities of dismissal of workers in ZATO.

Civilian personnel often work in closed administrative-territorial formations (CATOs), which is associated with the provision of additional guarantees to the employee upon dismissal. Law of the Russian Federation of July 14, 1992 N 3297-1 “On a closed administrative-territorial entity” inclause 4 art. 7established the right of employees of enterprises and (or) facilities, other legal entities located on the territory of a closed administrative-territorial entity, released in connection with the reorganization or liquidation of these organizations, as well as in the event of a reduction in the number or staff of these workers, retention for the period of employment (but not more than six months) average salary, taking into account monthly severance pay and continuous work experience.

However, unlike the Labor Code of the Russian Federation (Art. 178 And Art. 318) Law o ZATO does not provide for any special procedure for maintaining average earnings for the third and subsequent months. Thus, the average salary should be paid upon presentation by the employee of an identification document and work record book.

Dismissal of pensioners

We often have to deal with a situation where working pensioners, after the start of the procedure for reducing the number or staff of employees, are offered to resign. at will, explaining that there is no point in resigning due to staff reduction, since in this case the compensation providedTKRF, they are not entitled to it, since they receive a labor pension.

This position of the employer is illegal, although this practice of dismissing working pensioners is very common.

A retired employee should not agree to dismissal of his own free will, since this category of employees is subject to the general rules of dismissal during layoffs.TK The Russian Federation does not make any distinctions between dismissed old-age pensioners (by age) and other workers.

Thus, according toArt. 178Labor Code of the Russian Federation, pensioners, like other employees dismissed due to a reduction in the number or staff of an organization, have the right to receive severance pay in the amount of average monthly earnings and to maintain average earnings for the period of employment, but not more than two months from the date of dismissal ( including severance pay).

http://llighty.ucoz.ru/news/istorija/2013-02-01-91 - trade unions of the Armed Forces of the Russian Federation

INTRODUCTION.

civilian

meanings of the word civilian in explanatory dictionaries of the Russian language:

Ozhegov's explanatory dictionary.

civilian - employed or produced for hire (as opposed to serf or forced)

Example: V. worker. V. labor.

2. - self-employed

Example: V. composition. Enroll as a civilian (noun).

Efremova T.F. Explanatory dictionary of the Russian language.

civilian

1. m.

1) Someone who works for hire.

2) Anyone who works in the army, in the military department, but is not a member of the military

service.

2. adj.

1) Employed person.

2) Performed by hire, contract; hired

3) Working in the army, in the military department, but not in military service.

LIST OF SOURCES USED

Constitution of the Russian Federation.
All about the labor of civilian personnel of the Armed Forces of the Russian Federation Author: Vyacheslav Igorevich Kovalev, Honored Lawyer of the Russian Federation, Candidate of Legal Sciences, Associate Professor, Professor of the Department of Labor Law, Civil and Arbitration Process of the Military University.Outsourcing (from the English outsourcing (outer-source-using) - use of an external source/resource) is the transfer by an organization, on the basis of a contract, of certain functions for servicing to another organization specializing in the relevant field.
Dismissal of civilian personnel due to reduction in numbers or staff. Current issues IN AND. Kovalev. Law in Supreme Court No. 2 2012

The subject of labor law includes those social relations that are generated by wage labor. The employee’s labor activity is carried out under the guidance and under conditions determined by the employer. The subject of labor law is not all work in general, but only relations in public organization labor and related relations derived from them, i.e. a whole complex of social relations regarding labor in production.

Thus, labor law is a branch of law that regulates public relations related to the use of labor under an employment contract in state and municipal enterprises, commercial and non-profit organizations and institutions, as well as labor relations of certain categories of employees employed by other citizens.

Sources of labor law

Regulatory legal acts regulating labor relations are divided into general and special.

General acts regulate the labor relations of all workers, regardless of where their work is applied.

Special acts adapt the action general norms to certain categories of workers, depending on the form of ownership, natural and climatic working conditions, special legal regime locality, sector of the economy, the nature of the labor relationship between the employee and the employer, working conditions (difficult, harmful, especially harmful).

The main principles of labor legislation are:

freedom of labor;
prohibition of forced labor and discrimination in the sphere of labor relations;
ensuring the right to promotion of employment and protection from unemployment;
ensuring the right to work in conditions that meet safety and hygiene requirements;
ensuring the right to remuneration for work;
ensuring the right to rest;
ensuring the right to compensation for harm caused to an employee in connection with the performance of his labor duties.

Labor law establishes state guarantees to ensure the recognition, observance and protection of workers' labor rights, the implementation of state supervision and control over their observance, ensuring the right of everyone to the state's protection of their rights and freedoms, including in court. Hired employees are recognized with the right to association, including the right to create trade unions and bodies of public initiative of workers to protect their rights, freedoms and interests in the field of labor relations and exercise public control over their compliance.

As mentioned above, one of the main grounds for the emergence of labor relations is the employment contract. Let's look at this document in more detail.

Employment agreement (contract) is the main institution of labor law

In accordance with the tasks of bodies, institutions and organizations, for these workers, special conditions wages, as well as fringe benefits and benefits.

The legal basis for staffing the RF Armed Forces with civilian personnel, in addition to the Labor Code of the Russian Federation as the main document, are:

order of the Ministry of Defense of the Russian Federation “On concluding employment agreements (contracts) with civilian personnel of the Armed Forces of the Russian Federation”;
Order of the Ministry of Defense of the Russian Federation “On measures to ensure the safety of civilian personnel of the Armed Forces of the Russian Federation”;
order of the Ministry of Defense of the Russian Federation “On the procedure for resolving collective labor disputes in the Armed Forces of the Russian Federation”, as well as the already well-known Manual on legal work in the Armed Forces of the Russian Federation.

Let's consider the procedure for concluding employment contracts with civilian personnel of the RF Armed Forces.

Essential terms of the employment contract

The concept and classification of employment contracts are analyzed above. Let us consider in more detail the content of the employment contract itself and its essential terms.

When concluding employment agreements (contracts), the following essential (mandatory) conditions are provided:

place of work (specific military unit);
labor function (work in accordance with qualifications for a certain profession (position) that the employee must perform);
start and end date of work if a fixed-term employment contract is concluded;
employer's responsibilities to ensure labor safety;
terms of remuneration.

Additional terms of the employment agreement (contract) include the following provisions:

on combining professions (positions);
about working hours and rest time;
about testing, etc.

In addition, a separate agreement (contract) may be concluded with the employee on the non-disclosure by the employee of information constituting a state secret (order of the Ministry of Defense of the Russian Federation “On approval of the instructions on the procedure for admitting military personnel and civilian personnel of the Armed Forces of the Russian Federation to state secrets” ).

As mentioned above, a trial may be stipulated in the terms of the employment contract. Let us dwell briefly on this situation.

During the probationary period, the employee is subject to the provisions of the Labor Code of the Russian Federation, laws, other regulatory legal acts, local regulations containing labor law standards, collective agreements, and agreements.

A hiring test is not established for:

persons applying for work through a competition for filling the corresponding position, held in the manner prescribed by law;
pregnant women;
persons under the age of eighteen;
persons who have graduated from educational institutions of primary, secondary and higher vocational education and are entering work for the first time in their specialty;
persons elected (selected) to an elective position for paid work;
persons invited to work by way of transfer from another employer as agreed between employers;
in other cases provided for by the Labor Code of the Russian Federation, other federal laws and the collective agreement.

The probationary period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices and other separate structural divisions of organizations - six months, unless otherwise established by federal law. The period of temporary disability of the employee and other periods when he was actually absent from work are not included in the test period. If the test result is unsatisfactory, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, warning him about this in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test. The employee has the right to appeal the employer's decision in court.

One of the essential terms of the contract is the condition of remuneration of the employee or his salary.

Wage

Currently, the state sets only the minimum wage, leaving the right to regulate the amount of wages to the employer. With the exception of employees of budgetary organizations and civil servants, including institutions and civilian personnel of the RF Armed Forces, the establishment of wages is not strictly regulated by law.

The minimum wage (minimum wage) determines the lowest limit of remuneration for unskilled workers when performing simple work under standard working conditions. The minimum wage cannot be lower than the subsistence level in the country. Payment for labor is made in rubles.

Legislation establishes time-based, piece-rate and other remuneration systems.

Military organizations may provide additional payments for employees:

bonuses for main performance results;
establishment of bonuses of an incentive nature (for high achievements in work, for performing particularly important (urgent) work for the period of their implementation, for a special mode of work);
payment of a one-time monetary reward for conscientious performance of duties based on the results of the calendar year;
providing financial assistance.

The procedure and conditions for the production of these incentive payments are fixed in collective agreements or regulations on bonuses, based on the specific conditions and tasks facing military units (units).

The Labor Code also stipulates the production of certain additional payments to civilian personnel on various grounds (for night work, overtime, part-time work, etc.).

Remuneration systems, forms of material incentives, tariff rates (salaries), as well as labor standards are established by employers, their associations (unions, associations) in agreement with the relevant trade union bodies and are enshrined in collective bargaining agreements.

Now we will consider the procedure for hiring, concluding an employment contract and the grounds for its termination.

The procedure for hiring civilian personnel, concluding an employment contract and grounds for its termination

All employment contracts are concluded in writing. After concluding an employment contract, an order is issued, which is announced to the employee against signature. The employment contract is drawn up in two copies - for the employee and the employer, each of which is signed by the parties. Changes to the contract can only be made in writing.

Enrollment for work by order is made from the date specified in the contract.

It should be noted that the legislation has established a list of documents that must be provided by an employee when applying for a job:

passport;
employment history;
insurance certificate of state pension insurance;
military registration documents;
education document;
documents on qualifications or special knowledge. The Labor Code of the Russian Federation prohibits requiring the presentation of other documents unless this is specifically provided for by law.

It should be noted that the main document about the length of service and work activity of an employee is the work book. It contains records of service, promotions and awards. The reasons for dismissal of the employee are recorded in the work book.

An employment contract is concluded with persons who have reached the age of 16 years, and in exceptional cases - from 15 years of age.

An employment contract can be terminated on the following grounds:

agreement of the parties;
expiration of the employment contract, except for cases where the employment relationship actually continues and neither party has demanded its termination;
termination of an employment contract at the initiative of the employee;
termination of an employment contract at the initiative of the employer;
transfer of an employee at his request or with his consent to work for another employer or transfer to elective work(job title);
the employee’s refusal to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization;
the employee’s refusal to continue working due to a change in the essential terms of the employment contract;
refusal of an employee to transfer to another job due to health conditions in accordance with a medical report;
the employee’s refusal to transfer due to the employer’s relocation to another location;
circumstances beyond the control of the parties;
violation of the rules for concluding an employment contract, if this violation excludes the possibility of continuing work.

Termination of an employment contract is formalized by order of the commander of the military unit. In the order and work book of the employee, the reason for his dismissal must be indicated in strict accordance with the wording of labor legislation and a reference to the relevant paragraph and article of the legislative act.

Upon termination of an employment contract, the employer is obliged to provide the employee with a work book on the day of dismissal (last day of work) and, upon the employee’s written application, copies of documents related to the work.

Labor discipline and responsibility for its violation

Before we start talking about labor discipline, let’s remember what discipline is in general. Discipline is the duty of obeying established order or rules. Discipline can be labor, military, etc. Let us consider the labor discipline we need in this case and its types.

Concept and types of labor discipline

Labor discipline is the employee’s obligation to comply with the standards that regulate his labor relations with the organization (enterprise) and the labor process itself.

In relation to a military unit, labor discipline (labor discipline) is a set of legal norms regulating internal labor regulations, establishing the labor responsibilities of workers and command, determining incentive measures for success in work and responsibility for culpable failure to fulfill these duties.

In the process of labor activity, an employee must observe three types of discipline: labor, technological and production.

Technological discipline of workers is part of labor discipline, which consists in observing technical rules in production.

Violation of technological discipline by an employee is a production omission.

Production discipline is a set of measures aimed at maintaining order in production, ensuring clear and rhythmic work of the enterprise.

The labor regulations in each specific military unit are determined by the internal labor regulations, which are approved general meeting(conference) of workers on behalf of the command.

When developing internal labor regulations, they reflect:

the main responsibilities of the command and employees of the military unit;
hiring and firing issues;
issues of using working time;
the procedure for applying incentives for conscientious work and sanctions for violations of labor discipline.

Labor discipline is ensured in two ways:

incentive measures;
measures of responsibility.

The main factors influencing the strengthening of labor discipline in a military unit are:

certification of managers, specialists and technical performers;
mandatory conclusion of collective labor agreements (contracts);
financial incentive measures;
conducting competent disciplinary practices;
analysis of the state of labor discipline and planning of measures to strengthen it.

Commanders of military units apply the following incentives to the civilian personnel subordinate to them for exemplary performance of job duties, increased productivity and other achievements in work:

announcement of gratitude;
bonuses;
rewarding with a valuable gift;
awarding a certificate of honor;
entry in the Book of Honor, on the Board of Honor.

Internal labor regulations, charters and regulations on discipline may also provide for other incentives.

When applying incentives, the opinion of the workforce is taken into account. It is possible to combine several incentive measures (for example, declaring gratitude and rewarding with a valuable gift).

Incentives are announced by order of the commander of the military unit, communicated to the entire workforce and entered in the employee’s work book in the “Incentives” section.

It must be borne in mind that, in accordance with the Labor Code of the Russian Federation, incentive measures are not applied to an employee during the period of validity of the disciplinary sanction imposed on him.

For special labor merits, employees are presented to higher authorities for awarding orders, medals, Certificate of Honor from the Government of the Russian Federation, badges and for conferring honorary titles and titles best employee in this profession.

Let us now consider in detail disciplinary sanctions and the procedure for their application.

Disciplinary sanctions and the procedure for their application

Employees who have committed a disciplinary offense are subject to disciplinary liability.

A disciplinary offense by an employee is the failure or improper performance by an employee of his or her job duties.

Disciplinary action is possible only if certain conditions are met:

committing a disciplinary offense;
wrongfulness of the act;
the presence of the employee's fault.

Disciplinary responsibility provided for by internal labor regulations. It applies to all employees, except those for whom special disciplinary liability is provided. The command of a military unit has the right to impose disciplinary sanctions in accordance with internal labor regulations.

The following disciplinary sanctions may be applied for violation of labor discipline:

comment;
rebuke;
severe reprimand;
dismissal.

Legislation on disciplinary liability, charters and regulations on discipline may also provide for other disciplinary sanctions for certain categories of employees.

When imposing a disciplinary sanction, the severity of the offense committed, the circumstances in which it was committed, the employee’s previous work and behavior are taken into account. The choice of a specific disciplinary sanction is the right of the command of the military unit.

Before applying a disciplinary sanction, a written explanation must be required from the employee. The employee’s refusal to give a written explanation cannot serve as an obstacle to the imposition of the appropriate penalty. In such a situation, the command of the military unit draws up a certificate (report), which (which) records the fact of the employee’s refusal to provide an explanation for his misconduct.

A disciplinary sanction must be imposed immediately after the discovery of the misconduct, but no later than one month, not counting the time the employee was ill or on vacation. Penalty cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit or inspection of financial and economic activities - no later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

For each disciplinary offense, only one disciplinary sanction can be imposed. The penalty is announced in an order for the military unit, indicating the reasons for its application, and is communicated to the employee against receipt.

Disciplinary measures other than dismissal are not entered in the work record book. If within a year from the date of announcement of the disciplinary sanction the employee is not subjected to a new disciplinary sanction, then he is considered not to have been subjected to disciplinary sanction. A disciplinary sanction can be lifted before the end of the year by the body or official that applied it on its own initiative, at the request of the immediate supervisor or the workforce, if the person subjected to disciplinary sanction has not committed a new offense and has proven himself to be a conscientious worker.

Employment contract, internal labor regulations, establishing new and changing existing working and living conditions.

The main bodies considering individual labor disputes are labor dispute commissions (LCC), elected at a general meeting (conference) of the labor collective of a military unit, and district (city) courts.

The CCC is the primary body for the consideration of labor disputes arising in military units, with the exception of disputes for which a different procedure for their consideration has been established. A labor dispute is subject to consideration by the CCC if the employee, independently or with the participation of the trade union organization representing his interests, has not resolved disagreements during direct negotiations with the command of the military unit.

An employee can apply to the CCC within three months from the day he learned or should have learned about a violation of his rights. If the established deadline is missed for valid reasons, the CCC may restore it and resolve the dispute on the merits.

The CCC is obliged to consider a labor dispute within ten days from the date the employee submits the application. Copies of the CTS decision are handed over to the employee and commander of the military unit within three days from the date the decision is made.

The decision of the CCC can be appealed by an interested employee or the command of a military unit to a district (city) court within ten days from the date of delivery of copies of this decision to them.

Without a decision of the CCC, labor disputes are considered directly in the courts in the cases specified in the Labor Code of the Russian Federation:

disputes about reinstatement;
disputes about refusal to hire;
disputes about changing the date and wording of the reason for dismissal, etc.

Collective labor dispute is an unresolved disagreement between civilian personnel and the employer regarding the establishment and change of working conditions (including wages), the conclusion, change and implementation of collective agreements and agreements.

If these disagreements arise, employee representatives, elected by a majority vote at the general meeting, formalize the demands in writing and submit them to a representative of the command of the military unit, thereby entering into collective negotiations.

The commander of the military unit is obliged to accept the requirements for review and inform the employee representatives in writing about its results within three working days.

The day the command of the military unit reports the rejection of the demands of civilian personnel is the moment the collective labor dispute begins.

To resolve disagreements that have arisen, conciliation procedures are used (dispute consideration by a conciliation commission, mediators or labor arbitration), in which none of the parties to a collective dispute has the right to evade participation.

A conciliation commission is created within up to three working days from representatives of the parties on an equal basis and is announced by order of the military unit.

A collective labor dispute must be considered by a conciliation commission within five working days. The decision of the conciliation commission is documented in the protocol of the commission and is binding on the parties, and is executed in the manner and within the time frame established by the decision.

If no agreement is reached, conciliation procedures continue with the participation of a mediator or in labor arbitration.

Employees of the Service for Settlement of Collective Labor Disputes may be involved in the resolution of collective labor disputes.

The choice of a mediator is made by agreement of the parties. If an agreement is not reached within three days, a mediator is appointed by the Service for Settlement of Collective Labor Disputes.

Consideration of a collective labor dispute with the participation of a mediator is carried out within seven days from the moment of his invitation (appointment) and ends with the adoption of an agreed decision or the drawing up of a protocol of disagreements.

Labor arbitration is a temporary body formed by agreement of the parties, consisting of three labor arbitrators independent of the parties to the dispute. The composition, regulations, and powers of the labor arbitration are formalized by the decision of the command of the military unit, the employee representative and the service for settling collective labor disputes.

Labor arbitration considers a dispute within five days, develops recommendations for its settlement, which are transmitted to the parties to the dispute in writing and become binding if the parties have entered into a written agreement on their implementation.

The procedure for resolving collective labor disputes is determined by the Federal Law “On the procedure for resolving collective labor disputes” and the order of the Ministry of Defense of the Russian Federation “On the procedure for resolving collective labor disputes in the Armed Forces of the Russian Federation”.

BASICS OF LABOR LAW

1. Concept, subject, method, sources, principles and functions of labor law

Labor law is a branch of law that regulates the procedure for the emergence, operation and termination of labor relations, determines the regime of joint labor of workers, establishes a measure of labor protection and the procedure for resolving labor disputes. Labor law standards do not regulate technological processes, but social connections of subjects of labor relations, that is, social forms of labor. From this point of view, the work of a scientist, inventor, writer and other individual forms of labor are not subject to regulation by labor law, since they are performed outside of social relations. Labor law regulates social relations that arise regarding the application and implementation of the ability to work.

The subject of labor law is labor relations that arise when an employee uses his ability to work in the process of work, as well as other social relations related to labor.

These include:

relations between employee and employer;

organizational and managerial relations of the trade union body, representing the interests of the workforce, with the administration of the enterprise regarding the improvement of working conditions, life and rest of workers;

relations on labor redistribution;

relations regarding employment and employment;

relations related to compensation for material damage;

procedural relations arising when resolving labor disputes.

The method of labor law is complex, as it combines elements of dispositive and imperative influence on the subjects of labor relations.

The main features of this method can be presented as follows:

Involving citizens in social production occurs not with the help of a directive, but on the basis of free interest, that is, by providing participants in labor relations with contractual freedom. The voluntary and contractual nature of labor relations is enshrined in Art. 37 of the Constitution of the Russian Federation.

Labor relations, like civil relations, are characterized by legal equality of the parties. However, labor relations are also associated with power-administrative relations between the employee and the governing bodies of the enterprise, which creates a situation of inequality between the parties and brings labor relations closer to administrative ones. At the same time, labor relations are to a much greater extent built on a civil law basis, and the legal inequality of the parties to labor relations is manifested not so much in the dependence of the employee on the administration of the enterprise, but in state guarantees of protecting the interests of workers before the employer.

Labor law is characterized by a combination of centralized and local regulation. Local acts adopted by agreement of the parties determine the working day schedule, establish rest (break) time, coordinate vacation schedules and other issues that regulate in detail the working conditions of workers. It is important that the norms of local acts do not contradict federal legislation.

The specificity of labor law methods is also manifested in the nature of sanctions applied as a means of fulfilling the obligations of the parties to labor relations. The application of sanctions and the protection of workers' rights are carried out out of court, with the exception of issues related to the reinstatement of workers. Liability measures under labor law are of a property and disciplinary nature. These include a reprimand, reprimand, deprivation of bonus pay and other unfavorable consequences, including dismissal or dismissal.

The sources of labor law are acts containing legal norms by which labor relations are regulated. Sources of labor law are divided into federal and local.

Federal sources include:

The Constitution of the Russian Federation, which is the legal basis for labor legislation;

Federal laws containing labor law standards;

regulatory decrees of the President of the Russian Federation aimed at regulating labor relations;

decrees of the Government of the Russian Federation regulating relations that constitute the subject of labor law;

regulatory acts of ministries, departments and committees of the Russian Federation;

resolutions of the plenum of the Supreme Court of the Russian Federation on controversial issues of labor relations.

It should be noted that acts of the plenum of the Supreme Court of the Russian Federation are themselves sources of law. They cannot introduce new rules or change old ones. But as a result of generalizing judicial practice, the Supreme Court of the Russian Federation may come to the conclusion that it is necessary to make changes to the current legislation.

Local sources of labor law include:

regulatory legal acts of the constituent entities of the Russian Federation;

law-making bodies local government;

internal labor regulations established at the enterprise;

collective agreements and agreements;

employment contracts;

orders and instructions of heads of enterprises and institutions.

A special place among the sources of labor law is occupied by acts International organization labor (ILO). The Russian Federation has recognized the validity of 52 ILO conventions on its territory.

Principles of labor law. The principles of labor law include:

the principle of free disposal by citizens of their ability to work;

the principle of equal remuneration for equal work without any discrimination;

the principle of inadmissibility of worsening the situation of workers below the level provided for by current labor legislation.

The functions of labor law are determined by the tasks facing labor legislation. These tasks are set out in Art. 1 of the Labor Code of the Russian Federation. The tasks posed in this article are largely declarative in nature. Based on the tasks set by the Labor Code of the Russian Federation, two functions of labor law can be distinguished: regulatory and facilitative.

The regulatory function extends its effect to labor and related relations.

The facilitating function is that labor law does not directly perform it, but together with other social institutions(legal and non-legal). Labor law is designed to promote the growth of labor productivity, improve the quality of work, increase the efficiency of material production, raise the material and cultural standard of living of the population, and strengthen labor discipline. To this we can add that labor law contributes to the creation of a labor market to meet the needs of production.

2. Labor relations

Labor relations constitute the main content of labor law. In essence, these are social relations regulated by labor law.

The subjects of the labor relationship are divided into basic and additional. This division is based on the degree of influence of a particular subject on the emergence, operation and termination of labor relations.

The main subjects of labor relations are the employee and the employer.

Additional subjects are the labor council, labor dispute commissions, trade unions, employment services, legal services at the enterprise and other structures that ensure the normal functioning of production. Additional subjects can act as main ones when they directly determine the fate of the emergence, operation or termination of labor relations.

The labor relationship is based on an agreement by virtue of which one party (the employee) is obliged to perform work in a certain specialty, qualification or position, subject to internal regulations, and the enterprise (employer) undertakes to pay the employee wages and ensure working conditions provided for by law, collective agreement and agreement of the parties. Externally, the labor relationship looks like a type of obligatory relationship under civil law. However, within the framework of civil law relations, the contractor is obliged to provide the result of labor stipulated by the contract, that is, to properly fulfill the obligation. Issues related to the nature and measure of labor, the regime and routine of the working day, methods of fulfilling accepted obligations, that is, the process of labor itself, and not only its result, falls within the competence of the labor legal relationship, which distinguishes it from the civil legal relationship.

Types of labor relations.

The following types of labor relations are distinguished:

Employment relations. Strictly speaking, these relations are not yet labor relations. They precede the emergence of labor relations and create for them the corresponding legal basis. They determine the nature of future labor relations. At this stage there is no employee and employer yet. Here there is an individual who enters into a relationship with the administration of the enterprise regarding the conclusion of an employment contract.

Direct labor relations. All subjects of labor law (main and additional) apply here.

Relations related to the termination of an employment contract and the dismissal of employees.

Relations arising in connection with the reinstatement of an employee. These relations arise if the employment contract was terminated at the initiative of the employer and the employee, who disagrees with such a decision, filed a claim in court for reinstatement at work.

Rights and obligations of subjects. One of the components of the labor relationship is the rights and obligations of the subjects.

The main rights of workers are:

the right to working conditions that meet safety and hygiene requirements;

the right (by agreement with the employer) to establish working hours and workday routines;

the right to remuneration for one’s work depending on personal labor contribution and the quality of work;

the right to organize into trade unions;

the right to annual paid leave;

the right to compensation for damage caused by injury in connection with work;

the right to social security due to age and loss of ability to work;

the right to judicial protection of one’s labor rights.

The duties and rights of employees are defined in Art. 21 of the Labor Code of the Russian Federation and are regulated in detail by internal labor regulations and additional instructions.

The employee is obliged:

perform work duties conscientiously;

observe labor discipline;

treat the property of the enterprise, institution, organization with care;

comply with established labor standards.

The basic rights and obligations of the employer are also enshrined in Art. 22 Labor Code of the Russian Federation.

3. Collective agreements and agreements

A collective agreement is a legal act regulating the relationship between an employee and an employer (Chapter 7, Art. 40 - 44 of the Labor Code of the Russian Federation). The Law of the Russian Federation “On Collective Bargains and Agreements” dated March 11, 1992 No. 2490 - 1 (as amended on May 1, 1999) establishes that in order to conclude a collective agreement, the initiative of one of the parties, which submits a draft collective agreement to the other party, is sufficient. In case of disagreement between the parties, collective negotiations are held between them. Controversial issues regarding the content of a collective agreement are resolved out of court and without recourse to the labor dispute commission. This is one of the features that distinguishes collective agreements from individual employment contracts.

To conduct collective negotiations and prepare a draft collective agreement, the parties on an equal basis form a commission of their authorized representatives. The authority of representatives is determined from the content of a special legal act or by virtue of job responsibilities this or that person. The authorized representatives of the labor collective, as a rule, are the chairman of the trade union committee of the enterprise and the chairman of the council of the labor collective. The authorized representatives of the employer can be the head of the enterprise or other official, or any representative of the enterprise administration acting on the basis of a power of attorney.

If the parties could not reach an agreement, a protocol of disagreements is drawn up, and a conciliation commission is formed within three days, or the parties turn to a mediator chosen by mutual agreement.

Authorized representatives of the parties participating in the work of the conciliation commission are released from their main jobs for the duration of the negotiations, while maintaining their average earnings for a period of no more than three months during the year. Authorized representatives of the labor collective participating in collective negotiations cannot be subject to disciplinary action, transferred to another job or dismissed.

The protocol of disagreements must be reviewed within seven days. In case of evading the adoption of a collective agreement, the employer bears administrative liability (a fine of up to ten times the minimum wage for each day after the expiration of the period provided for concluding the agreement). An employer guilty of failure to fulfill obligations under a collective agreement is subject to a fine of up to one hundred times the minimum wage. As a last resort measure of protest against the employer's failure to comply with the provisions of the collective agreement, employees have the right to declare a strike, having previously notified the employer about it no later than 14 days before its start. The decision to strike must be made at a general meeting of the enterprise staff by at least 2/3 of the votes of the total number of workers.

The collective agreement agreed upon with the employer must be adopted at a general meeting of employees by a simple majority of votes. The collective agreement comes into force from the moment of its registration with the Ministry of Labor and Social Development of the Russian Federation. At large enterprises, it is possible to adopt several collective agreements (for example, for each workshop, etc.).

The collective agreement is concluded for a period of one to three years. Although practically the collective agreement is valid until the adoption of a new collective agreement. When the owner of an enterprise changes, if the collective agreement has not yet expired, this agreement is valid for three months, after which it must be replaced with a new one. If the new owner agrees to preserve the text of the old collective agreement, then a protocol of agreement must be drawn up. When an enterprise is liquidated, the collective agreement is valid for the entire duration of the liquidation procedure. The parties who signed the collective agreement must annually report on its implementation at the general meeting of the labor collective.

In addition to collective agreements, the law provides for the conclusion of agreements.

Agreements can be of several types: general; industry (tariff); special.

The general agreement is concluded at the federal level between the all-Russian association of workers and the Government of the Russian Federation. General agreements include agreements concluded between republican associations of trade unions or associations of workers and executive bodies of constituent entities of the Russian Federation. The master agreement establishes general principles socio-economic policy of the state in the field of labor relations.

An industry agreement is concluded between trade unions in a specific industry and the relevant ministry (department, committee). It is aimed at the socio-economic development of a particular industry, improving working conditions and increasing pay (for example, for workers in the coal, engineering industries, etc.), as well as providing social guarantees to workers in a particular industry.

A special agreement is concluded at the territorial level between enterprise trade unions and territorial executive authorities. The agreement includes provisions on pay, conditions and labor protection, work and rest schedules and other significant issues of labor relations.

4. Employment contract. Procedure for conclusion and termination

As already noted, direct employment relations begin from the moment the employment contract is concluded.

An employment contract (Chapter 10, Articles 56 - 65 of the Labor Code of the Russian Federation) is a voluntary agreement between an employee and an employer regarding essential working conditions. In this sense, an employment contract is an act of transfer by an employee of his ability to work, abilities, skills, and qualifications for temporary use to the employer. An employment contract establishes a legal connection between the subjects of labor law and legislates the rights and obligations of the parties to the contract.

Characteristic features of an employment contract are the subordination of the employee who signed this contract to the internal labor regulations and the employee’s obligation to perform work on an ongoing basis, and not in the execution of individual tasks or one-time assignments, which is typical for civil contracts, for example, a work contract or an agency contract.

Depending on the form of conclusion, the labor agreement is divided into three types: agreement on joint labor activity; employment contract; Contract.

An agreement on joint labor activity is concluded between participants (founders) of business partnerships and companies. The specificity of these organizational and legal forms of legal entities is that their participants, based on combining their contributions into a warehouse or authorized capital are joint (shared or common) owners and at the same time carry out labor activities in accordance with the terms of the constituent agreement. The exception is for investors (limited partners) - participants in limited partnerships and shareholders of open joint stock companies. By concluding an agreement on joint labor activity, for example, the founders of a closed joint-stock company establish, at their discretion, the necessary conditions for normal production or entrepreneurial activity. An agreement on joint labor activity should be distinguished from a civil law agreement of a simple partnership, that is, an agreement on joint activities(Article 1041 of the Civil Code of the Russian Federation). This agreement is concluded between the participants of the partnership on the joint management of affairs (financial, economic and other types of entrepreneurial activities), including issues regarding the disposal of the joint property of the participants, the disposal of the authorized (share) capital, etc.

The employment contract is concluded between the founders legal entity and hired workers. Hired employees are not the owners of the enterprise; they do not have the right to participate in the distribution of profits and to participate in the management of the affairs of the enterprise. With the consent of the founders, i.e. owners of the enterprise, employees can contribute to the authorized capital and claim a portion of the profits. Employee has the right to acquire only preferred shares of the enterprise (i.e. shares that do not give voting rights).

Employment contracts can be concluded (Article 58 of the Labor Code of the Russian Federation) for:

indefinite term;

a certain period of not more than five years (fixed-term employment contract);

time to complete a specific job.

An employment contract for the duration of a specific job is a type of fixed-term employment contract. A fixed-term employment contract is concluded (Article 59 of the Labor Code of the Russian Federation):

In cases where the employment relationship cannot be established for a specific period. This situation may arise taking into account the nature of the work ahead (for example, due to the need to replace a woman on maternity leave), or taking into account the conditions of the work (for example, when working in extreme conditions), or taking into account the interests of the employee ( for example, the wife of a military serviceman, when joining a job, can enter into a fixed-term employment contract, taking into account the husband’s expected transfer to another locality for further service).

In cases directly provided for by law. Such cases include:

concluding an employment contract with an official of the enterprise;

concluding a contract with a teacher of a higher educational institution;

conclusion of an employment contract for work in the Far North and equivalent areas (this contract is concluded for a period of no more than three years, and on the islands of the Arctic Ocean - for a period of no more than two years);

concluding an employment contract with a person hired for an elective position in a government body.

An important feature of a fixed-term employment contract is that when the term of the fixed-term employment contract has expired and neither party has demanded termination of the employment contract, its validity is considered to be continued for an indefinite period (Article 58 of the Labor Code of the Russian Federation).

full name of the enterprise in which the employee’s labor activity is to be carried out;

an indication of the specialty and qualifications of the employee, as well as what position he is being hired for;

rights and obligations of the parties, i.e. all functions of the employee and the employer (it is advisable to indicate an exhaustive list of work that the employee is obliged to perform; in accordance with Article 57 of the Labor Code of the Russian Federation, the employer does not have the right to require the employee to perform work not stipulated by the contract);

terms of remuneration (category according to the Unified Tariff Schedule - UTS, etc.);

date of conclusion of the employment contract and its expiration date.

In addition to the basic conditions, an employment contract may contain additional conditions, specifying the obligations of the parties (for example, about the duration additional leave, about working hours and rest time, about various additional payments, etc.).

The text of the employment contract is drawn up in two copies, sealed with the seal of the enterprise and signed by the parties. One copy is kept directly by the employer, the other by the employee.

The hiring procedure requires the person to personally appear before the management body of the enterprise authorized to enter into employment contracts. Employment contracts are concluded only by mutual consent of the parties. The initial will must come from the person wishing to enter the workforce. This will is expressed by submitting a written statement. The counter-will must come from the employer, who is obliged to respond to the written statement. If the employer agrees to conclude an employment contract, the employee submits his identity card and work book to the registration and accounting body of the enterprise (HR department). If an employee is hired for a job that requires special qualifications and a required specialty, he is required to submit a document confirming this qualification and specialty (diploma, certificate, etc.). Persons under 21 years of age must submit a medical certificate confirming their health status when applying for a job. This requirement also applies to certain categories of workers whose work is associated with harmful or dangerous conditions (for example, vehicle drivers, a number of metallurgical professions, etc.), or is associated with serving a large number of people (for example, food sellers, catering workers , kindergarten teachers preschool institutions and the like). Article 65 of the Labor Code of the Russian Federation prohibits requiring documents from applicants for work other than those provided for by law. Questionnaires and other materials containing additional information about the employee can be filled out only with the consent of the employee.

Upon provision of the specified documents and if there is a vacancy, an employment contract must be concluded. Article 68 of the Labor Code of the Russian Federation prohibits unreasonable refusal to hire. Hiring is formalized by order of the administration of the enterprise (employer). But regardless of whether the hiring was properly formalized, the actual admission to work is considered to be the conclusion of an employment contract.

Hiring may be conditional on passing a test to verify the employee’s suitability for the work assigned to him. The test period should not exceed three months, and in agreement with the trade union body - six months (Articles 70, 71 of the Labor Code of the Russian Federation). If, after the expiration of the probationary period, the employee continues to work and neither party has demanded termination of the employment relationship, this employee is considered to have passed the test, and the employment contract is considered to be concluded for an indefinite period. An employee who fails the test is released from work without the consent of the trade union body. However, such release can be appealed by the employee in court.

When hiring probation not intended for persons under 18 years of age; young workers after graduating from vocational schools; young specialists upon graduation from higher and secondary specialized educational institutions. A probationary period is not established when an employee is transferred to another enterprise or to work in another locality.

Work books (Article 66 of the Labor Code of the Russian Federation) are kept for all employees who have worked at the enterprise for more than five days. Employees entering work for the first time, instead of a work book, provide a certificate from their last place of residence. In this case, the work book must be filled out no later than a week from the date of hiring.

The following are entered in the work book:

information about the employee (last name, first name, patronymic, date of birth, place of work, specialty, position, qualification);

date and number of the hiring order, date and number of the dismissal order, indicating the article of the Labor Code of the Russian Federation;

information about transfer to another job, appointment to a position, assignment of rank, etc.

The work book contains special place for records of awards, incentives and thanks. These records are made indicating the date and order number. Penalties are not entered into the work book.

A transfer to another job (Articles 72 - 75 of the Labor Code of the Russian Federation) is considered to be a change in one of the necessary conditions of the employment contract.

Labor legislation distinguishes between several types of transfers to another job:

transfer within the same enterprise, which occurs if an employee is permanently assigned work in another profession, specialty, qualification or position;

transfer to another company;

transfer to work in another area.

These are types of permanent transfers, and they are carried out only with the consent of the employee. In addition to permanent transfers, the employer has the right to temporarily transfer the employee to another job. Temporary transfer does not require the employee's consent. Temporary transfer to another job is allowed in two cases: due to production needs; due to plant downtime.

Production necessity (Article 74 of the Labor Code of the Russian Federation) means the need to prevent or eliminate a natural disaster, industrial accident, as well as the need to replace an absent employee.

Relocation should be distinguished from transfer to another job (Article 72 of the Labor Code of the Russian Federation). The relocation can take place at the same enterprise or to another enterprise, but in the same area. Any movement does not require the consent of the employee, since it occurs without changing the essential working conditions, that is, the employee moves without changing his position, qualifications and specialty (for example, assignment of work on another mechanism or unit within the specialty, qualification or position stipulated by the employment contract).

A situation is not considered a transfer or relocation if, due to changes in the organization of production, significant working conditions change (working hours, wages, changes in grades, job titles, etc.), but the employee continues to work in the same specialty, qualifications , positions. In this case, the employer is obliged to notify the employee about upcoming changes in significant working conditions no later than two months in advance.

The grounds for termination of an employment contract are set out in Art. 77 Labor Code of the Russian Federation. The main form of termination of an employment contract is termination, which, unlike the termination of an employment contract due to the expiration of its validity period, is a volitional act of mutual or unilateral expression of the will of the parties. The expiration of the term (clause 2 of Article 58 of the Labor Code of the Russian Federation) relates only to fixed-term employment contracts.

An employment contract may be terminated:

by agreement of the parties;

at the initiative of the employee;

at the initiative of the employer;

at the initiative of other competent authorities;

in other cases provided by law.

Termination of an employment contract by agreement of the parties (Article 78 of the Labor Code of the Russian Federation) is not much different from termination of an employment contract at the initiative of the employee, since in both cases the parties somehow come to an agreement.

Termination of an employment contract at the initiative of the employee is permitted in accordance with Art. 80 Labor Code of the Russian Federation. If an employee wishes to terminate an employment contract concluded for an indefinite period, he must notify the employer in writing two weeks in advance. In the resignation letter, the employee must indicate the reason for dismissal. If the dismissal of an employee is due to the impossibility of continuing his work (enrollment in educational institution, transition to retirement, etc.), the employment contract is terminated within the period requested by the employee. If there are other reasons for dismissal, the contract is terminated after two weeks, but can be terminated earlier than this period by agreement between the employee and the employer.

A fixed-term employment contract can be terminated by an employee before the expiration of the contract in the event of illness (disability) of the employee, which prevents the fulfillment of the basic terms of the employment contract, or in the event of a violation by the employer of labor legislation, a collective agreement or an employment contract, as well as for other valid reasons.

Termination of an employment contract at the initiative of the employer can be carried out in accordance with Art. 81 Labor Code of the Russian Federation. This applies to employment contracts concluded for an indefinite period and fixed-term contracts.

They can be terminated for the following reasons:

liquidation of the organization or termination of activities by the employer - an individual;

reduction in the number or staff of the organization’s employees;

inconsistency of the employee with the position held or the work performed due to:

health status in accordance with a medical report;

insufficient qualifications confirmed by certification results;

change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);

repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;

a single gross violation of labor duties by an employee:

absenteeism (absence from the workplace without good reason for more than four hours in a row during the working day);

appearing at work in a state of alcohol, drug or other toxic intoxication;

disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties;

committing theft (including small) of someone else's property at the place of work, embezzlement of property, its intentional destruction or damage, established by a court verdict that has entered into legal force or a resolution of an authority authorized to apply administrative penalties;

violation by an employee of labor protection requirements, if this violation entailed serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences;

commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer;

the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

making an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

a single gross violation by the head of the organization (branch, representative office) or his deputies of their labor duties;

the employee submits false documents or knowingly false information to the employer when concluding an employment contract;

termination of access to state secrets if the work performed requires access to state secrets;

stipulated by the employment contract with the head of the organization, members of the executive body of the organization;

in other cases established by the Labor Code of the Russian Federation and other federal laws.

An employment contract may also be terminated on the grounds provided for in Art. 83, 84 Labor Code of the Russian Federation.

Termination of an employment contract due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation):

conscription of an employee into military service or sending him to an alternative civilian service that replaces it;

reinstatement of an employee who previously performed this work by decision of the state labor inspectorate or court;

failure to be elected to office;

convicting the employee to a punishment that precludes the continuation of his previous work, in accordance with a court verdict that has entered into legal force;

recognition of the employee as completely disabled in accordance with a medical report;

death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as deceased or missing;

the occurrence of emergency circumstances that prevent the continuation of labor relations (military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a government body of the relevant constituent entity of the Russian Federation.

Termination of an employment contract on the basis specified in clause 2 of Article 83 of the Labor Code of the Russian Federation is permitted if it is impossible to transfer the employee with his consent to another job.

An employment contract is terminated due to a violation of the rules for its conclusion established by the Labor Code of the Russian Federation or other federal law (clause 11, article 77), if violation of these rules excludes the possibility of continuing work in the following cases:

concluding an employment contract in violation of a court verdict depriving a specific person of holding certain positions or engaging in certain activities;

concluding an employment contract to perform work that is contraindicated for a given person for health reasons in accordance with a medical report;

lack of an appropriate education document if the work requires special knowledge in accordance with federal law or other regulatory legal acts;

in other cases provided for by federal law.

Termination of an employment contract in the cases specified in paragraph 1 of Art. 77 is carried out if it is impossible to transfer the employee with his written consent to another job available to the employer.

In case of termination of the employment contract in accordance with clause 11 of Art. 77 employer pays employee severance pay in the amount of average monthly earnings, if the violation of the rules for concluding an employment contract was not the fault of the employee.

5. Legal regulation of essential working conditions

Legal regulation of essential working conditions determines the content of labor relations. One of the most important working conditions is the establishment of working hours, i.e. the time during which the employee must perform the duties assigned to him.

The Labor Code of the Russian Federation establishes three types of working time:

normal working hours;

reduced working hours;

part-time work.

Normal working hours cannot exceed 40 hours per week (Article 91 of the Labor Code of the Russian Federation). The distribution of this amount of time by day of the week is regulated by agreement of the parties. With a five-day working week the length of the working day should not exceed eight hours, and in the case of a six-day working day, it should not exceed seven hours. On the eve of holidays, the length of the working day, both with a five-day and a six-day working week, is reduced by one hour, and on the eve of weekends with a six-day working week, the length of the working day should not exceed six hours.

When working at night, working hours are reduced by one hour. This norm does not apply to workers employed in enterprises with a continuous production cycle, as well as to workers working a six-day work week. In continuously operating industries, where, due to working conditions, daily or weekly working hours cannot be observed, it is allowed to sum up the recording of working hours so that the duration of working hours for the accounting period does not exceed the normal number of working hours.

Reduced working hours in accordance with Art. 92 of the Labor Code of the Russian Federation establishes:

for workers aged 16 to 18 years - no more than 36 hours per week;

for workers aged 14 to 15 years, as well as for students aged 14 to 15 years during the holidays - no more than 24 hours a week, and during school - no more than half of the established norm (the same rule applies to persons in aged 16 to 18 years, if they work during their free time);

for workers engaged in work with hazardous working conditions - no more than 36 hours per week.

For employees working reduced working hours, on the eve of holidays and weekends, the duration of working hours does not change. Workers under 18 years of age cannot be hired to work at night (from 10 p.m. to 6 a.m.). The amount of remuneration for employees for whom reduced working hours is provided should not be less than the amount of wages for employees of the same enterprise working full time.

Part-time working hours are established by agreement between the employee and the employer. In accordance with Art. 93 of the Labor Code of the Russian Federation, the employer does not have the right to refuse a request for the opportunity to work part-time for the following categories of employees: a) pregnant women; b) women with children under the age of 14, and if the child is disabled - up to 16 years; c) persons caring for a sick family member. In these cases, remuneration is made in proportion to the time worked or depending on output.

Involving workers in work beyond the normal working hours established by law, i.e. Overtime work is, as a rule, not allowed. Only in exceptional cases (in agreement with the trade union body of the enterprise) can an employer involve an employee in overtime work, the duration of which should not exceed four hours a day. In accordance with Art. 98 of the Labor Code of the Russian Federation, such cases include: carrying out work necessary for the defense of the country; to prevent a natural disaster or industrial accident; social production necessary work water supply, gas supply, heating, lighting, transport, communications; failure of the replacement employee to appear if the work does not allow a break; other emergency circumstances provided for by law. Article 99 of the Labor Code of the Russian Federation provides a list of categories of workers who should not be allowed to work overtime. This applies to women with children aged 3 to 14 years; workers under the age of 18; workers undergoing on-the-job training. Women with children aged 3 to 14 years, as well as disabled people, can be involved in overtime work only with their consent. Payment for overtime work for the first two hours is made at least one and a half times the rate, and for subsequent hours - at least double the rate. Compensation overtime work Time off is not allowed. For the normal reproduction of his ability to work, the employee is provided with legally established rest time.

Rest time (Articles 106 - 128 of the Labor Code of the Russian Federation) is the time during which the employee must be released from work duties and which he can use at his own discretion.

The following types of rest time are established by law (Article 107 of the Labor Code of the Russian Federation):

breaks during the working day;

weekly rest (weekends and holidays);

regular annual vacations;

leave without pay.

Breaks during the working day (Articles 108, 109 of the Labor Code of the Russian Federation) are divided into breaks for rest and nutrition, as well as additional breaks.

A break for rest and food is not included in working hours and should not exceed two hours in duration. As a rule, such a break is provided four hours after the start of work. The beginning and end of the break are determined by the parties to the labor relationship and are fixed by the internal labor regulations.

Additional breaks are established for certain categories of workers. For example, for employees who work outdoors in winter, an additional break is allowed to allow them to warm up indoors.

Weekly rest must be at least 42 hours continuously. Weekends have been established for this purpose. It is generally accepted that these days are Saturday and Sunday. At enterprises with a continuous production cycle, days off are provided on different days of the week according to shift schedules. Work on weekends is prohibited, except in cases provided for in Art. 111 Labor Code of the Russian Federation. Holidays are specified in Art. 112 Labor Code of the Russian Federation. Work on holidays is paid double or compensated by providing another day of rest. If a day off coincides with a holiday, the day off is transferred to the next working day after the holiday.

Regular annual vacations (Articles 114, 115 of the Labor Code of the Russian Federation) are provided to all employees regardless of their place of work.

Annual leave is divided into: annual paid leave; annual additional leave; leave without pay.

Annual paid leave is provided to employees after six months of continuous work. Workers under 18 years of age and military personnel transferred to the reserve and sent to work through organized recruitment may be granted paid leave at the request of such workers after three months of continuous work. The same right is given to women before or immediately after maternity leave. The order of granting vacations is established by the employer in agreement with the trade union body. The duration of annual paid leave must be at least 28 calendar days. The period of illness or temporary disability is not included in the number of vacation days. An employee has the right to refuse annual paid leave and transfer it to the next year. In this case, non-use of annual leave for two consecutive years is prohibited. It is also prohibited to replace vacation with monetary compensation, except in cases of dismissal of an employee who did not use vacation.

Annual additional leave (Articles 116 - 119 of the Labor Code of the Russian Federation) is provided in addition to the main paid leave. Additional leaves are provided for the following categories of workers: those employed in work with hazardous working conditions; with irregular working hours; having a long work experience at one enterprise; employed in the work of the Far North and similar areas. Additional leave is granted simultaneously with the main leave and the number of days of additional leave must be added to the days of the main leave. However, the mechanism of this summation has not yet been sufficiently developed.

Leave without pay (Article 128 of the Labor Code of the Russian Federation) is granted with the consent of the employer upon the application of the employee, in which he must state the reasons that prompted him to go on short-term leave without pay. This may be for family reasons or other valid reasons. By agreement of the parties, this leave can be worked out in a subsequent period.

6. Labor discipline

Labor discipline (Chapter 9, Art. 189 - 195 of the Labor Code of the Russian Federation) is a certain order of behavior of workers in the production process. It is developed by methods of persuasion, material interest of the employee, as well as methods of material reward for conscientious work. In accordance with Art. Art. 189, 190 of the Labor Code of the Russian Federation, employees are obliged to work honestly and conscientiously, to promptly and accurately execute the orders of the employer, to comply with technological discipline, labor protection, safety and industrial sanitation requirements, and to treat the property of the enterprise with care.

Incentive measures have been established for employees for exemplary performance of job duties (Article 191 of the Labor Code of the Russian Federation). They can be both moral (declaring gratitude, awarding a certificate of honor, etc.) and material in nature (issuing a bonus, awarding valuable gifts). For special labor merits, employees are nominated for awards with orders, medals, and honorary titles.

For violation of labor discipline, the employer may apply the following disciplinary measures: reprimand, reprimand, dismissal (Article 192 of the Labor Code of the Russian Federation).

The legislation on disciplinary liability, charters and regulations on discipline may provide for other disciplinary sanctions. When imposing a disciplinary sanction, the severity of the offense committed, the circumstances in which it was committed, previous work, as well as the behavior of the employee must be taken into account.

To impose a disciplinary sanction, the employer must require the employee to provide a written explanation of the reason for the violation of labor duties. For each misconduct, only one disciplinary sanction can be applied and no later than one month from the date of its discovery (not counting the time of illness of the employee or vacation). If within a year from the date of application of disciplinary action the employee is not subjected to a new penalty, then he is considered not to have been subjected to it at all. During the period of validity of the disciplinary sanction, incentive measures are not applied to the employee. The employer has the right, instead of applying a disciplinary sanction, to refer the issue of violation of labor discipline to the consideration of the work collective. An order to apply a disciplinary sanction, indicating the reasons for its application, is announced to the employee against receipt.

A disciplinary sanction can be lifted before the end of the year by the body or official that applied it on its own initiative, at the request of the immediate supervisor or the work collective, if the employee has not committed a new offense and has proven himself to be a conscientious worker. A disciplinary sanction may be appealed in the manner prescribed by law.

7. Procedure for resolving labor disputes

Procedure for resolving labor disputes. The Constitution of the Russian Federation (Clause 4, Article 37) recognizes the right to individual and collective labor disputes using the methods for resolving them established by federal law, including such as a strike. Labor disputes should be understood as disagreements arising over the application of labor legislation, the establishment or change of working conditions.

The causes of disputes may be:

lack of awareness of employers and employees in labor legislation, as a result of which it is applied incorrectly;

imperfection of the legislation itself in rapidly changing external circumstances;

disagreements between employees and the employer regarding the establishment of new or changes in existing working conditions, for example, the introduction of new production standards;

disagreements between the employer and the trade union.

Individual labor disputes (Articles 381 - 397 of the Labor Code of the Russian Federation) arising between an employee and an employer on the application of legislation and other regulations on labor, a collective agreement and other labor agreements, as well as the terms of an employment contract, are considered by labor dispute commissions or courts of general jurisdiction.

The Labor Dispute Commission (LCC) is elected by the general meeting of the labor collective and the employer. Candidates who receive a majority of votes and for whom more than half of those present at the meeting vote are considered elected to the commission. The procedure for election, the number and composition of the CTS, and its term of office are determined by the general meeting of the labor collective. The commission elects a chairman and secretary from among its members.

A labor dispute is subject to consideration by the CCC if the employee independently or with the participation trade union organization failed to resolve disagreements during direct negotiations with the employer. An employee can apply to the CCC within three months from the day he learned or should have learned about a violation of his rights. In turn, the commission is obliged to consider the dispute within ten days from the date of filing the application. An employee’s application received by the CTS is subject to mandatory registration. The dispute is considered in the presence of the employee who filed the application and the employer’s representative. Consideration of a dispute in the absence of an employee is allowed only upon his written application. If the employee fails to appear at the commission meeting, consideration of the application is postponed. In the event of a second absence of an employee from attending a commission meeting without a valid reason, the commission may make a decision to withdraw the application from consideration.

The CCC has the right to call witnesses to the meeting, invite specialists and trade union representatives. At the request of the commission, the employer is obliged to provide the necessary calculations and documents. The CCC makes a decision by a majority vote of the commission members present at the meeting. A member of the commission who does not agree with the decision of the majority is obliged to sign the minutes of the commission meeting, but has the right to express his dissenting opinion in it. Copies of the commission's decision are handed over to the employee and employer within three days from the date the decision is made.

The decision of the CCC is subject to execution by the employer within three days after the expiration of the ten days provided for appeal. If the employer fails to comply with the commission’s decision within the prescribed period, the employee is issued a certificate that has the force of a writ of execution. Based on the certificate issued by the commission and presented no later than three months from the date of its receipt in court, the bailiff enforces the decision of the CCC forcibly.

Labor disputes are considered in courts of general jurisdiction in the following cases (Articles 391 - 397 of the Labor Code of the Russian Federation):

if the employee or employer does not agree with the decision of the CCC;

at the request of the prosecutor, if the decision of the CCC is contrary to the law;

if labor dispute commissions do not meet or have not been created at the enterprise;

upon the employee’s application for reinstatement at work, for a change in the date and wording of the reason for dismissal, for payment for forced absence or performing low-paid work;

upon the employer's application for compensation by the employee for material damage caused to the enterprise.

The courts also consider disputes regarding the refusal to hire persons invited by way of transfer from another enterprise, as well as persons with whom the employer, in accordance with the law, was obliged to conclude an employment contract.

In a claim for reinstatement at work, an employee has the right to demand:

immediate reinstatement at work;

payment for forced absence (even if the plaintiff does not demand this in the statement of claim, the court is obliged to raise this issue with the defendant);

compensation for moral damage (courts may satisfy claims for compensation for moral damage in an amount proportional to the cost of the claim).

Claims for reinstatement at work are filed with the court within one month from the date the employee was given a copy of the dismissal order or from the date the work record book was issued. An application for resolution of a labor dispute is submitted to the court within three months from the day the employee learned or should have learned of a violation of his right. If an employee causes material damage to the enterprise, the employer has the right to go to court within one year from the date of discovery of the damage caused.

The decision to reinstate an employee who was illegally dismissed or transferred to another job is subject to immediate execution. If the employer delays the execution of the court decision on reinstatement at work, the court issues a ruling on payment of his average earnings.

Collective labor disputes. The procedure for resolving labor disputes, as well as the exercise of the right to strike, are provided for by the Law of the Russian Federation “On the procedure for resolving labor disputes” dated November 23, 1995 No. 175-FZ and Art. 398 - 418 Labor Code of the Russian Federation.

Article 398. Basic concepts

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

Conciliation procedures - consideration of a collective labor dispute in order to resolve it by a conciliation commission, with the participation of a mediator and (or) in labor arbitration (Article 398 of the Labor Code of the Russian Federation).

The moment of the beginning of a collective labor dispute is the day of communication of the decision of the employer (his representative) to reject all or part of the claims of employees (their representatives) or failure to communicate by the employer (his representative) in accordance with Art. 400 of the Labor Code of the Russian Federation of its decision, as well as the date of drawing up the protocol of disagreements during collective bargaining (Article 398 of the Labor Code of the Russian Federation).

A strike is a temporary voluntary refusal of workers to perform labor duties (in whole or in part) in order to resolve a collective labor dispute (Article 398 of the Labor Code of the Russian Federation).

Employees and their representatives, determined in accordance with Art. Art., have the right to put forward demands. 29 - 31 Labor Code of the Russian Federation. Requirements put forward by employees and (or) the representative body of employees of the organization (branch, representative office, other separate structural unit), approved at a general meeting (conference) of employees. A meeting of employees is considered valid if more than half of the employees are present. The conference is considered valid if at least two thirds of the elected delegates are present.

The employer is obliged to provide employees or employee representatives with the necessary premises for holding a meeting (conference) to put forward demands and has no right to interfere with its holding.

Employees' demands are stated in writing and sent to the employer. The demands of trade unions and their associations are put forward and sent to the relevant parties to the social partnership. A copy of the demands made in writing can be sent to the Service for Settlement of Collective Labor Disputes. In this case, the specified Service is obliged to verify receipt of the requirements by the other party to the collective labor dispute.

Employers are obliged to take into consideration the demands of employees sent to them. The employer informs the representative body of the organization’s employees (branch, representative office, other separate structural unit) about the decision made in writing within three working days from the date of receipt of the employees’ request. Representatives of the employer (association of employers) are obliged to accept for consideration the demands of trade unions (their associations) sent to them and inform the trade unions (their associations) of the decision made within one month from the date of receipt of these requirements (Article 400 of the Labor Code of the Russian Federation).

The procedure for resolving a collective labor dispute consists of the following stages:

consideration of a collective labor dispute by a conciliation commission;

consideration of a collective labor dispute with the participation of a mediator and (or) in labor arbitration.

Consideration of a collective labor dispute by a conciliation commission is a mandatory stage. If no agreement is reached in the conciliation commission, the parties to the collective labor dispute proceed to consideration of the collective labor dispute with the participation of a mediator and (or) in labor arbitration.

Each party to a collective labor dispute, at any time after the start of this dispute, has the right to contact the Service for Settlement of Collective Labor Disputes for notification registration of the dispute.

None of the parties to a collective labor dispute has the right to evade participation in conciliation procedures.

Representatives of the parties, the conciliation commission, the mediator, labor arbitration, and the specified Service are obliged to use all opportunities provided by law to resolve the labor dispute that has arisen.

Conciliation procedures are carried out within the time limits provided for by the TR of the Russian Federation. If necessary, the deadlines provided for conciliation procedures may be extended by agreement of the parties to a collective labor dispute.

If conciliation procedures do not lead to the resolution of a collective labor dispute or the employer evades conciliation procedures or does not fulfill the agreement reached during the resolution of a collective labor dispute, then employees or their representatives have the right to begin organizing a strike.

Participation in the strike is voluntary. No one can be forced to participate or refuse to participate in a strike. Persons who force workers to participate or refuse to participate in a strike bear disciplinary, administrative, and criminal liability in the manner established by the Labor Code of the Russian Federation and other federal laws.

Representatives of the employer do not have the right to organize a strike or take part in it.

The decision to declare a strike is made by the general meeting (conference) of workers of the organization (branch, division, other separate structural unit) at the proposal of the representative body of workers, previously authorized by workers to resolve a collective labor dispute. The decision to declare a strike, made by a trade union (association of trade unions), is approved for each organization by a meeting (conference) of workers of this organization. A meeting (conference) of employees is considered valid if at least two-thirds of the total number of employees (conference delegates) is present. The decision is considered adopted if at least half of the employees present at the meeting (conference) vote for it. If it is impossible to hold a meeting (conference) of workers, the representative body of workers has the right to approve its decision by collecting the signatures of more than half of the workers in support of the strike.

After five calendar days of work by the conciliation commission, a one-hour warning strike may be declared once, of which the employer must be notified in writing no later than three working days in advance. When conducting a warning strike, the body leading it provides the minimum necessary work (services) in accordance with the Labor Code of the Russian Federation.

The employer must be notified in writing of the start of the upcoming strike no later than ten calendar days in advance.

The decision to declare a strike shall indicate:

a list of disagreements between the parties to a collective labor dispute, which are the basis for declaring and conducting a strike;

date and time of the start of the strike, its expected duration and expected number of participants;

the name of the body leading the strike, the composition of employee representatives authorized to participate in conciliation procedures;

proposals for the minimum necessary work (services) performed in an organization, branch, representative office, or other separate structural unit during the strike.

The employer warns the Service for Settlement of Collective Labor Disputes about the upcoming strike.

In accordance with Art. 55 of the Constitution of the Russian Federation are illegal and strikes are not allowed:

during periods of martial law or a state of emergency or special measures in accordance with the legislation on a state of emergency; in the bodies and organizations of the Armed Forces of the Russian Federation, other military, paramilitary and other formations and organizations in charge of ensuring the country's defense, state security, emergency rescue, search and rescue, fire fighting, prevention or liquidation of natural disasters and emergency situations; V law enforcement agencies; in organizations directly servicing particularly dangerous types of production or equipment, at ambulance and emergency medical care stations;

in organizations related to ensuring the livelihoods of the population (energy supply, heating and heat supply, water supply, gas supply, aviation, rail and water transport, communications, hospitals), in the event that holding strikes poses a threat to the defense of the country and state security, life and health of people .

A strike in the presence of a collective labor dispute is illegal if it was declared without taking into account the deadlines, procedures and requirements provided for by the Labor Code of the Russian Federation.

The decision to declare a strike illegal is made by the supreme courts of the republics, regional, regional courts, courts of federal cities, courts of the autonomous region and autonomous districts at the request of the employer or prosecutor. The court decision is brought to the attention of workers through the body leading the strike, which is obliged to immediately inform the strike participants about the court decision. A court decision declaring a strike illegal, which has entered into legal force, is subject to immediate execution. Workers are obliged to stop the strike and begin work no later than the next day after delivery of a copy of the said court decision to the body leading the strike (Article 413 of the Labor Code of the Russian Federation).

If there is an immediate threat to the life or health of people, the court has the right to postpone a strike that has not started for up to 30 days, and suspend a strike that has begun for the same period. In cases of particular importance for ensuring the vital interests of the Russian Federation or its individual territories, the Government of the Russian Federation has the right to suspend the strike until the issue is resolved by the relevant court, but for no more than ten calendar days.

The right to strike may be limited by federal law.

An employee’s participation in a strike cannot be considered a violation of labor discipline and grounds for termination of an employment contract, except in cases of failure to fulfill the obligation to stop the strike (Article 414 of the Labor Code of the Russian Federation). It is prohibited to apply disciplinary measures to employees participating in a strike, except for the cases provided for in Part 6 of Art. 413 Labor Code of the Russian Federation.

During the strike, the workers participating in it retain their place of work and position. The employer has the right not to pay workers wages during their participation in the strike, with the exception of workers engaged in performing a mandatory minimum of work (services). A collective agreement, agreement or agreements reached in the course of resolving a collective labor dispute may provide for compensation payments workers participating in the strike.

For employees who are not participating in the strike, but due to the strike were not able to perform their work and who have declared in writing about the start of downtime due to this, payment for downtime through no fault of the employee is made in the manner and in the amounts provided for by the Labor Code of the Russian Federation. The employer has the right to transfer these employees to another job in the manner prescribed by the Labor Code of the Russian Federation. A collective agreement, agreement or agreements reached during the resolution of a collective labor dispute may provide for a more preferential procedure for payments to employees not participating in a strike than is provided for by the Labor Code of the Russian Federation.

The Plenum of the Supreme Court of the Russian Federation issued a resolution “On the application by courts of legislation regulating the labor of workers working for employers - individuals and for employers - small businesses that are classified as micro-enterprises." However, the document contains, applicable to other categories of workers ().

Thus, the judges paid great attention to the issue of distinctive features labor relations. It is noted that when resolving disputes regarding the recognition of labor relations, it is incorrect to proceed only from the presence (or absence) of certain formalized acts (civil contracts, staffing schedules, etc.). It is necessary to focus on the essence of the legal relationship that has arisen between the parties. The Plenum of the Armed Forces of the Russian Federation included the following as characteristic features of labor relations:

the parties reach an agreement on the personal performance by the employee of a certain, predetermined labor function in the interests, under the control and management of the employer;
the employee’s subordination to the employer’s internal labor regulations and work schedule (shift);
provision of working conditions by the employer; performance by an employee of a labor function for pay;
the employee performs work in accordance with the instructions of the employer;
employee integration into organizational structure employer;
recognition by the employer of such employee rights as weekly days off and annual leave;
payment by the employer of expenses associated with the employee’s travel in order to perform work; making periodic payments to the employee, which are his only and (or) main source of income;
provision of tools, materials and mechanisms by the employer.

4 main differences between an employment contract and a work contract and other civil law contracts - in "Encyclopedia of solutions" Internet version of the GARANT system. Get 3 days free!

The existence of an employment relationship can be evidenced by the stable and stable nature of these relationships, the subordination and dependence of labor, the employee’s performance of work only in a certain specialty, qualification or position, the presence of additional guarantees for the employee established by laws and other regulations governing labor relations.

The judges noted that an employment contract differs from a contract for the provision of paid services by the subject matter of the contract, according to which the contractor (employee) performs not some specific one-time work, but certain labor functions that are the responsibility of an individual - an employee, and the process itself is important performance of this labor function, and not the service rendered. Also, under a contract for the provision of paid services, the contractor retains the position of an independent economic entity, while under an employment contract, the employee assumes the obligation to perform work according to a certain labor function (specialty, qualification, position), is included in the employer’s personnel, is subject to the established labor regime and works under the control and direction of the employer; the performer under a contract for the provision of paid services works at his own risk, and a person working under an employment contract does not bear the risk associated with the performance of his work.

In addition, the judges commented on the issue of restoring the established deadline for going to court to resolve a labor dispute if it is missed for valid reasons.

Also of interest is the thesis that the authority to attract employees to work can be assigned to an authorized representative of the employer not only in accordance with the law, other legal acts, constituent documents legal entity, LNA, an employment contract concluded with this person, but also in another way chosen by the employer. Thus, the Plenum of the Armed Forces of the Russian Federation actually legalized such a method of delegating part of the employer’s powers to one person or another, which is not formally provided for by law, but is very common in practice and recognized by the courts, as issuing a power of attorney.

Lecture course " Legal basis labor relations"

for part-time students

Management", 03/38/03 "Human Resource Management", 03/43/01 "Service"

INTRODUCTION

The study of factors regulating labor relations for future specialists in the field of personnel management, management and service provision is important for the full implementation of educational competencies and is necessary for future successful professional activities.

The state of legality and order in society depends on the level of public legal awareness and the legal culture of citizens. Of course, the starting point here is knowledge of law and legislation. However, the state of legality also depends on how the elements of legal consciousness work in a person’s mind, the formation of which is influenced by many other factors. These include the law enforcement activities of government and administrative bodies, and the activities of law enforcement agencies, and administrative activities specific head of an enterprise, organization, institution. Most of the violations of the law in management activities passes due to poor knowledge of it. A rule of law state is inextricably linked with improving the legal culture of the entire population and, of course, senior officials.

Knowledge of the law and the ability to skillfully use legislation in management activities in the modern period are absolutely necessary, regardless of one’s position.

Subject, method, sources and subjects of labor law. 1

Employment contract. 7

Change of employment contract. 15

Material liability of the parties to the employment contract. 17

Disciplinary responsibility of the employee. 22

Termination of an employment contract. 25

Remuneration of employees. 29

Work time. 34

Time relax. 38

Individual labor disputes. 43

Collective labor disputes. 44

Social insurance relations.. 48

Employment contract.

Employment contract- This is an agreement between the parties on working conditions. The legislative definition of an employment contract is given in Article 56 of the Labor Code of the Russian Federation.

At the beginning of the employment contract the following is indicated:

place and date of conclusion of the employment contract.

surname, name, patronymic of the employee and the name of the employer (or surname, name, patronymic of the employer - an individual) who entered into an employment contract;

information about the employer’s representative who signed the employment contract, and the basis on which he is vested with the appropriate powers (protocol or order of appointment to the position, details of the power of attorney);

information about documents proving the identity of the employee and the employer - an individual.

At the end, as a rule, the taxpayer identification number is indicated, with the exception of employers - individuals who are not individual entrepreneurs, other details of the parties are signed by the employee and the employer’s representative authorized to sign employment contracts.

If, when concluding an employment contract, any information required by law was not included in it, this is not a basis for recognizing the contract as not concluded or for its termination. Missing information is entered directly into the text of the employment contract.

place of work- this is the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer, and if it is located in another area, then with the obligatory indication of the branch, representative office, other separate structural unit and its location;

labor function- this is either a position, specialty, qualification for a specialist, or a profession, specialty, qualification or profession, qualification for a worker, or a specific type of work entrusted to the worker. If the performance of work for this function is associated with the provision of compensation and benefits or the presence of restrictions, then the names of these positions, professions, specialties and qualification requirements they must comply with qualification reference books. For example, Qualification Handbook positions of managers, specialists and other employees, approved by Resolution of the Ministry of Labor of the Russian Federation of August 21, 1998 No. 37.

start date, and when concluding a fixed-term employment contract - also its duration and circumstances (reasons) which served as the basis for its conclusion in accordance with Article 59 of the Labor Code;

terms of remuneration(including size tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments);

working hours and rest hours(if for of this employee it is different from general rules, operating with this employer);

characteristics of working conditions at the workplace in accordance with the certification of the workplace, and if the conditions deviate from normal (severe, harmful or dangerous), then compensation and benefits for work such as the provision of certified personal and collective protective equipment ( special clothing, special shoes and other personal protective equipment, flushing and neutralizing agents);

conditions determining, if necessary, nature of work(mobile, traveling, on the road);

Types of employment contract.

Employment contracts can be concluded:

1) for an indefinite period;

2) for a certain period of not more than five years (fixed-term employment contract), unless a different period is established by law. It must be remembered that the condition on the reason for the conclusion fixed-term contract is mandatory in accordance with Part 3 of Article 57 of the Labor Code of the Russian Federation.

A fixed-term employment contract is concluded when the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation, namely in the cases provided for in Part 1 of Article 59 of the Labor Code of the Russian Federation:

for the duration of the performance of the duties of an absent employee, whose place of work is retained in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract;

for the duration of temporary (up to two months) work;

to perform seasonal work, when due to natural conditions work can only be carried out during a certain period (season);

with persons sent to work abroad;

for carrying out work that goes beyond the normal activities of the employer (reconstruction, installation, commissioning and other work), as well as work related to a deliberately temporary (up to one year) expansion of production or the volume of services provided;

with persons entering work in organizations created for a predetermined period or to perform a predetermined job;

with persons hired to perform obviously defined work in cases where its completion cannot be determined by a specific date;

to perform work directly related to the internship and vocational training employee;

in cases of election for a certain period to an elected body or to an elective position for paid work, as well as employment related to the direct support of the activities of members of elected bodies or officials in state authorities and local government bodies, in political parties and other public associations;

with persons sent by employment services to temporary work and public works;

with citizens sent to perform alternative civil service and other cases.

In situations provided for in Part 2 of Article 59, a fixed-term employment contract may be concluded by agreement of the parties to the employment contract without taking into account the nature of the work to be performed and the conditions for its implementation:

with persons entering work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field retail and consumer services - 20 people);

with age pensioners entering work, as well as with persons who, for health reasons, in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, are allowed to work exclusively of a temporary nature;

with persons entering work in organizations located in the Far North and equivalent areas, if this is related to moving to the place of work;

to carry out urgent work to prevent disasters, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;

with persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;

with creative workers of the media, cinematography organizations, theaters, theatrical and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these workers, approved by the Government of the Russian Federation Federation, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations;

with managers, deputy managers and chief accountants of organizations, regardless of their legal forms and forms of ownership;

with persons studying full-time training;

with persons entering part-time work and in other situations.

An employment contract concluded for a specific period in the absence of sufficient grounds established by the court is considered concluded for an indefinite period.

It is prohibited to conclude fixed-term employment contracts in order to evade the provision of rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period.

If the employment contract does not specify the duration of its validity, the contract is considered to be concluded for an indefinite period.

An employment contract may change its form if neither party requested termination of the fixed-term employment contract due to its expiration and the employee continues to work after the expiration of the employment contract. In this case, the condition on the fixed-term nature of the employment contract loses force and the employment contract is considered concluded for an indefinite period.

An employment contract comes into force from the day it is signed by the employee and the employer, unless otherwise provided by law, the employment contract itself, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative (Article 16).

The employee is obliged to begin performing his job duties on the date specified in the employment contract. If the employment contract does not specify the start date of work, the employee must begin work on the next working day after the contract enters into force.

If the employee does not start work on the start day of work established in accordance with part two or three of this article, then the employer has the right to cancel the employment contract. A canceled employment contract is considered unconcluded. Cancellation of an employment contract does not deprive the employee of the right to receive benefits for compulsory social insurance in the event of an insured event during the period from the date of conclusion of the employment contract until the day of its cancellation.

It is prohibited to require an employee to perform work not stipulated by the employment contract.

Types of work under an employment contract:

1) Basic. This is the employer who keeps the employee’s work book;

2) Part-time work. It can be internal and external. Internal part-time work is the performance of other paid work for the same employer during free time from the main job. External part-time work is performing other paid work for another employer in your free time from your main job. The specifics of regulating the labor of persons working part-time are determined by Chapter 44 of the Labor Code of the Russian Federation.

3) Combination of professions (positions). This is done within set duration working day or shift, along with the work specified in the employment contract, additional work in a different or the same profession (position) for additional pay. The amount of additional payment is established by agreement of the parties to the employment contract.

There is also an expansion of service areas, an increase in the volume of work, and the performance of the duties of a temporarily absent employee without release from work specified in the employment contract. This is possible only with the written consent of the employee. Formatted as an application or additional agreement to the employment contract and by order of the employer. The period during which the employee will perform additional work, its content and volume are also established by agreement of the parties. 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, warning the other party about this in writing no later than three working days.

In accordance with Article 37 of the Constitution of the Russian Federation, labor is free. Everyone has the right to freely use their ability to work, choose their type of activity and profession. Forced labor is prohibited.

Forced labor– this is the performance of work under the threat of any punishment (violent influence), including:

in order to maintain labor discipline;

as a measure of responsibility for participating in a strike;

as a means of mobilizing and utilizing labor for economic development needs;

as a penalty for having or expressing political views or ideological beliefs contrary to established political, social or economic system;

as a measure of discrimination based on race, social, national or religious affiliation.

Forced labor also includes work that a worker is forced to perform under the threat of any punishment, while he has the right by law to refuse to perform it:

violation of established deadlines for payment of wages or payment not in full;

the emergence of an immediate threat to the life and health of an employee due to violation of labor protection requirements, in particular, failure to provide him with means of collective or individual protection in accordance with established standards.

The following is not considered forced labor:

work, the performance of which is stipulated by the legislation on conscription and military service or an alternative civil service replacing it;

work, the performance of which is conditioned by the introduction of a state of emergency or martial law in the manner established by federal constitutional laws;

work performed under emergency circumstances, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases threatening the life or normal living conditions of the entire population or part of it;

work performed as a result of a court verdict that has entered into legal force under supervision government agencies responsible for compliance with the law in the execution of court sentences.

Everyone has equal opportunities to exercise their labor rights. No one can be subjected discrimination(literally: restriction, infringement - a general legal term that usually means the infringement of the rights of individuals in comparison with others, in any form prohibited by domestic and international law). Restriction of labor rights and freedoms or receipt of any advantages regardless of gender, race, skin color, nationality, language, origin, property, family, social and official position, age, place of residence (including the presence or absence of registration at the place of residence, stay or at the location of the employer, which is illegal because it violates the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence, guaranteed by Part 1 of Art. 27 of the Constitution of the Russian Federation), attitude to religion, political beliefs, belonging or non-membership public associations, as well as from other circumstances not related to the employee’s business qualities, is prohibited.

The business qualities of an employee are understood as the ability of an individual to perform a certain job function, taking into account his existing professional qualifications (for example, the presence of a certain profession, specialty, qualification), personal qualities employee (for example, health status, presence of a certain level of education, work experience in a given specialty, in a given industry). In addition, the employer has the right to present to the person applying for vacant position or work, and other requirements that are mandatory for concluding an employment contract by virtue of a direct requirement of federal law, or that are necessary in addition to standard or typical professional qualification requirements due to the specifics of a particular job (for example, possession of one or more foreign languages, ability to work on a computer).

Establishing differences, exceptions, preferences, as well as limiting the rights of employees, which are determined by the inherent this species labor requirements, established by law, or due to the special care of the state for persons in need of increased social and legal protection. For example, when hiring a teacher or doctor, it is assumed that you have a special education confirmed by a diploma. There are jobs that are reserved for people with disabilities or other socially disadvantaged persons.

It is prohibited to refuse to conclude an employment contract to women for reasons related to pregnancy or the presence of children. It is prohibited to refuse to conclude an employment contract to employees invited in writing to work by way of transfer from another employer, within one month from the date of dismissal from their previous place of work.

At the request of a person who is refused to conclude an employment contract, the employer is obliged to provide the reason for the refusal in writing.

Persons who believe that they have been subjected to discrimination in the world of work or an illegal refusal to conclude an employment contract have the right to apply to the court for restoration of violated rights, compensation for material damage and compensation for moral damage.

When registering labor relations with former state and municipal employees who filled positions according to the list (it is established by regulations of the Russian Federation), after their dismissal from service within two years, they are required to provide the employer with information about their last place of service. And the employer in this case is obliged, within ten days, to notify the employer’s representative (employer) of the state or municipal employee at his last place of service about the conclusion of such an agreement. The procedure for informing a representative of the employer (employer) of a former state and municipal employee is established by regulatory legal acts of the Russian Federation.

Labor relations arise between an employee and an employer on the basis of an employment contract concluded by them. Sometimes labor relations arise as a result of:

election to an elected position (for example, deputies);

election through a competition to fill the corresponding position (for example, university teachers. Although, the competition may be in various forms: interview, questionnaire, testing, polygraph (lie detector) test, performing certain tasks, etc. The only condition is availability local act regulating these legal relations);

appointments to positions (carried out in organizations where there is a clear vertical of power);

position approval (sometimes called approval);

referrals to work by bodies authorized in accordance with federal law against the established quota (for example, in the Saratov region there is a law dated February 28, 2005 No. 20-ZSO “On establishing a quota for hiring disabled people”);

court decision on concluding an employment contract.

Also, labor relations between an employee and an employer arise on the basis of the employee’s actual admission to work with the knowledge or on behalf of the employer or his representative in the case where the employment contract was not properly drawn up. In this case, the employer is obliged to draw up an employment contract with the employee no later than three working days from the date the employee is actually allowed to work. The representative of the employer in labor relations is the management body of a legal entity (organization) or a person authorized by it. This is regulated in the organization’s legal document – the Charter and (or) memorandum of association. These situations arise quite often. In this case, the person must apply to the court to establish the legal fact of the existence of an employment relationship. The basis may be any documents or testimony.

When concluding an employment contract, a person applying for work must present to the employer:

passport or other identity document;

work book (if an employment contract is concluded for the first time, it is formalized by the employer; if an employee enters a job on a part-time basis, then information about part-time work is entered into the work book at the place of main work on the basis of a document confirming part-time work, for example, a copy of the order hiring);

insurance certificate of state pension insurance (if the contract is drawn up for the first time, then this certificate is issued by the employer);

military registration documents - for those liable for military service and persons subject to conscription for military service (military ID or registration certificate);

a document on education, qualifications or special knowledge - when applying for a job that requires special knowledge or special training.

The law prohibits requiring documents other than those provided for by the Labor Code of the Russian Federation from a person applying for a job. However, the blanket provisions of the law sometimes contain requirements for the applicant to provide other documents for a position (job).

For example, persons under the age of eighteen, workers engaged in heavy work and work with harmful and (or) dangerous working conditions (including underground work) are subject to a mandatory preliminary medical examination with the provision of supporting documents when concluding an employment contract ), as well as in work related to traffic. Work during which mandatory work is carried out medical examinations, and the procedure for their implementation are determined by the regulatory legal acts of the Russian Federation. If necessary, by decision of local authorities, individual employers may introduce additional conditions and indications for mandatory medical examinations (examinations).

Medical examination can be preliminary (upon entry to work) and periodic. It is carried out to determine the suitability of these workers to perform the assigned work and to prevent occupational diseases.

Employees of organizations Food Industry, public catering and trade, water supply facilities, medical and preventive care, children's institutions and some others, undergo the specified medical examinations (examinations) in order to protect public health, prevent the occurrence and spread of diseases. In accordance with medical recommendations, these employees undergo extraordinary medical examinations.

Workers working in conditions increased danger(with influence harmful substances and unfavorable production factors) undergo mandatory psychiatric examination at least once every five years. The procedure for passing such an examination is established by the federal executive body authorized by the Government of the Russian Federation.

The above-mentioned medical examinations and psychiatric examinations are carried out at the expense of the employer.

Employment contract is in writing, drawn up in two copies, each of which is signed by the parties. One copy of the employment contract is given to the employee, the other is kept by the employer. The employee’s receipt of a copy of the employment contract must be confirmed by the employee’s signature on the copy of the employment contract kept by the employer. Before signing an employment contract, the employer is obliged to familiarize the employee, against signature, with local regulations directly related to the employee’s work activity and the collective agreement. In general, on the employment contract, which is kept by the employer, there must be at least three signatures from the employee confirming: agreement with the terms of the contract, receipt of his copy of the contract and familiarization with the employer’s local regulations.

An employer who is an individual who is not an individual entrepreneur is obliged to register an employment contract with an employee with a notification procedure with the local government body at his place of residence (in accordance with registration).

Hiring is formalized by order or by order of the employer issued on the basis of a concluded employment contract. The employer's order (instruction) regarding employment is announced to the employee against signature within three days from the date of actual start of work. The content of the employer's order must comply with the terms of the concluded employment contract. The form of the order for admission is unified (from the Latin Uni - one and facere - to do, i.e. established uniformity, reduction to a single form). It was approved by Decree of the State Statistics Committee of the Russian Federation No. 1 dated January 5, 2004. In general, all primary accounting documentation for recording labor and its payment, their electronic versions, is developed and approved by the State Committee of the Russian Federation on Statistics in accordance with the Decree of the Government of the Russian Federation dated July 8, 1997 No. 835 “On primary accounting documents.”

Employment history of the established form is the main document on the employee’s work activity and length of service. If a person applying for work does not have a work book due to 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 duplicate of the work book.

The employer at the main place of work, with the exception of employers - individuals who are not individual entrepreneurs, maintains work books for each employee who has worked for him for more than five days. The work book contains information about the employee, the work he performs, transfers to another permanent job and the dismissal of the employee, as well as the grounds for termination of the employment contract and information about awards for success in work. Information about penalties is not entered into the work book, except in cases where the disciplinary sanction is dismissal.

The form of the work book, the procedure for maintaining and storing it, as well as the procedure for producing work book forms and providing them to employers are established by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”.

Disciplinary responsibility of the employee.

Labor discipline– this is obligatory for all employees to comply with the rules of conduct defined in legislative and local regulations and employment contracts. The employer is obliged, in accordance with labor legislation, to create the conditions necessary for employees to comply with labor discipline. The work schedule of employees is determined by the internal labor regulations.

Internal labor regulations- this is a local regulatory act that regulates the procedure for hiring and dismissing employees, the basic rights, duties and responsibilities of the parties to an employment contract, work hours, rest periods, days of wage payment, incentive and penalty measures applied to employees, as well as other issues regulating labor relations of this employer. The rules may be an annex to the collective agreement. They are approved by the employer, taking into account the opinion of the representative body of employees.

Before adopting a local act, the employer sends its draft and justification for it to the elected body of the primary trade union organization, which represents the interests of all or the majority of employees. This body, no later than five working days from the date of receipt of the project, sends the employer a reasoned opinion on the project in writing. If this reasoned opinion does not contain agreement with the draft local regulatory act or contains proposals for its improvement, the employer may agree with it or is obliged to conduct additional consultations within three days after receiving the reasoned opinion in order to achieve a mutually acceptable solution. If agreement is not reached, the disagreements that arise are documented in a protocol, after which the employer has the right to adopt a local normative act, which can be appealed by the elected body of the primary trade union organization to the appropriate state inspection labor or to court, or begin the procedure for a collective labor dispute in the manner established by the Labor Code of the Russian Federation.

For conscientious work, the employer has the right encourage employees. He can declare gratitude, give a bonus (not included in the remuneration system), award a valuable gift, a certificate of honor, nominate for the title of best in the profession, place the employee’s image on the Honor Board. This is formalized by order, information about the employee’s promotion is entered in his work record book, in some cases - in the employee’s personal file. The types of incentives for employees for their work are determined by the collective agreement, internal labor regulations or other local regulations. For special labor services to society and the state, employees can be nominated for state awards. This is regulated by Decree of the President of the Russian Federation dated March 2, 1994 No. 442 “On state awards of the Russian Federation.” State awards of the Russian Federation are the highest form of reward for citizens for outstanding services in the defense of the Fatherland, state building, economics, science, culture, art, education, education, protection of health, life and rights of citizens, charitable activities and other outstanding services to the state. Nominations for state awards are submitted to the President of the Russian Federation, who issues decrees on awards and presents awards in a solemn atmosphere. Higher state award The Russian Federation is the Order of St. Andrew the First-Called Apostle. Since the restoration of this order in 1998, only 14 people have been awarded it in Russia.

For failure to perform or improper performance by an employee through his fault of the labor duties assigned to him, i.e. for committing a disciplinary offense, the employer has the right to apply to the employee disciplinary liability in the form of imposing a disciplinary sanction in the form of:

1) comments;

2) reprimand;

3) dismissal for appropriate reasons. Such grounds include dismissal of an employee under paragraphs 5-10 of part one of Article 81, paragraph 1 of Article 336 or Article 348-11 of the Labor Code of the Russian Federation.

When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account. The application of disciplinary sanctions not provided for by law is not permitted. Other disciplinary sanctions may be provided for certain categories of employees. For example, Law No. 79-FZ dated July 27, 2004 “On the State Civil Service of the Russian Federation” provides for a warning about incomplete job compliance and exemption from a civil service position to be filled. And the law of January 17, 1992 No. 2202-I “On the Prosecutor’s Office of the Russian Federation” - demotion in class rank, deprivation badge“For impeccable service in the Prosecutor’s Office of the Russian Federation”, deprivation of the badge “Honorary Worker of the Prosecutor’s Office of the Russian Federation”, warning about incomplete official compliance.

The procedure for applying disciplinary sanctions:

1. Before applying a disciplinary sanction, the employer must request a written explanation from the employee. It must be provided by the employee no later than two working days from the moment when the employer or the person to whom the employee is subordinate for work (service) became aware of the commission of an offense. Essentially, this is the date of the report or memo the employee's immediate supervisor. If such a person is the head of the organization, then he has the right to directly request such an explanation from the employee. If the employee does not provide the specified explanation within the prescribed period, then a corresponding act of refusal to provide an explanation is drawn up. As a rule, the act is drawn up in the presence of at least two witnesses who sign it. Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action.

2. Compliance with the deadlines for applying penalties. From the day the employer discovers the misconduct, a disciplinary sanction is applied no later than one month, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees. From the day the employee committed the offense, a disciplinary sanction is applied no later than six months, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date it was committed. The specified time limits do not include the time of criminal proceedings.

3. For each disciplinary offense, only one disciplinary sanction can be applied. However, given that there are five types of legal liability (criminal, administrative, civil, material and disciplinary), then the commission of one act may result in punishment under several types of liability.

4. The employer’s order to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses

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