Consideration of an individual labor dispute is mandatory. individual labor disputes. Order of consideration and decision

In addition to labor dispute commissions, individual labor disputes arising at enterprises may also be resolved in courts. The courts deal with labor disputes:

at the request of an employee, employer or a relevant trade union protecting the interests of an employee who is a member of this trade union, when they do not agree with the decision of the labor dispute commission or when the employee goes to court, bypassing the labor dispute commission;

at the request of the prosecutor, if the decision of the commission on labor disputes contradicts the legislation of the Russian Federation.

The courts consider labor disputes on applications:

employees on reinstatement at work, regardless of the grounds for termination of the employment contract, on changing the date and wording of the reason for dismissal, on transferring to another job, on payment for the time of forced absenteeism, or on payment of the difference in wages during the performance of lower-paid work;

the employer on compensation by the employee for material damage caused to the organization.

about refusal to hire;

persons working under an employment contract with employers - individuals;

individuals who believe they have been discriminated against.

An application for resolving a labor dispute is filed with the court within three months from the day when the employee learned about the violation of his rights, and in cases of dismissal - within a month from the date of delivery of a copy of the dismissal order or from the date of issuance of the work book.

For the employer to apply to the court on the recovery of material damage caused to the enterprise from the employee, a period of one year is set from the date of discovery of the damage caused by the employee.

In case of missing the above deadlines for valid reasons, they can be restored by the court. When applying to the court with a claim on claims arising from labor relations, employees are exempted from paying duties and court costs.

Making decisions on disputes about dismissal and transfer to another job

In practice, very often there are labor disputes related to the dismissal of an employee. In the event of dismissal without legal basis or in violation of the established procedure for dismissal or illegal transfer to another job, the employee must be reinstated in his previous job by the body considering the labor dispute.

When making a decision on reinstatement at work, the body considering this labor dispute at the same time decides to pay the employee the average earnings for the time of forced absenteeism or the difference in earnings for the time of performing lower-paid work.

At the request of the employee, the body considering this labor dispute may limit itself to making a decision on the recovery of the above compensation in his favor and on changing the wording of the grounds for dismissal to dismissal on own will.

If the wording of the reason for dismissal is recognized as incorrect or not in accordance with the current legislation, the body considering the dispute is obliged to change it and indicate in the decision the reason for dismissal in strict accordance with the wording of the current legislation and with reference to the relevant article (paragraph) of the law.

If the wording of the reason for dismissal in the work book was incorrect or not in accordance with applicable law, it prevented the employee from entering the new job, the body considering the labor dispute, at the same time decides on the payment of his average earnings for the entire period of forced absenteeism.

In cases of dismissal without legal grounds or in violation of the established procedure for dismissal or illegal transfer to another job, the court may, at the request of the employee, issue a decision on compensation to the employee monetary compensation moral damage caused to him by these actions. The amount of this compensation is determined by the court.

If the body considering an individual labor dispute recognizes the employee's monetary claims as justified, they are satisfied in full.

Labor disputes

Labor disputes are unresolved disagreements between employees and employers, received in accordance with the law for resolution by the jurisdictional body, on the application of labor legislation or on the establishment of new working conditions in a social partnership or on an individual basis.

The main regulatory legal acts on the procedure for considering labor disputes are: Constitution Russian Federation, Labor Code Russian Federation, Civil Procedure Code of the Russian Federation.

Classification of labor disputes:

1. By subjects: individual and collective.

3. According to the type of disputed legal relationship, disputes can be distinguished from labor relations, legal relations for employment, for compensation for material damage.

4. On the subject of the dispute: disputes about the law (conflicts of law), i.e. arising from the application of labor legislation, agreements, collective agreements, employment contracts and disputes about interests (conflicts of interest), i.e. disagreements about the occurrence or change of existing conditions.

The jurisdictional bodies that consider individual labor disputes are commissions on labor disputes, courts - district, city and world. The bodies considering collective labor disputes are conciliation commissions, mediator, labor arbitration.

individual labor dispute a dispute is recognized between an employer and a person who previously had an employment relationship with this employer, as well as a person who expressed a desire to conclude an employment contract with the employer, if the employer refuses to conclude such an agreement.

Individual labor disputes are considered commissions on labor disputes and courts.

Labor dispute commissions (LCC) are formed at the initiative of employees and (or) the employer from an equal number of representatives of employees and the employer. Representatives of employees in the CCC are elected by the general meeting (conference) of employees of the organization or delegated by the representative body of employees with subsequent approval at general meeting(conferences) of employees of the organization.

Representatives of the employer are appointed by the head of the organization in the KTS.

By decision of the general meeting of employees, KTS can be formed in the structural divisions of the organization. These commissions are formed and operate on the same basis as the CCC of the organization. In KTS structural divisions organizations, individual labor disputes can be considered within the powers of these divisions.

The KTS of the organization has its own seal. Organizational and technical support for the activities of the KTS is carried out by the employer.

The CCC elects from among its members the chairman and secretary of the commission.

The worker may apply to the KTS within three months from the day when he learned or should have known about the violation of his right. In case of omission for valid reasons due date KTS can restore it and resolve the dispute on the merits.

The decision of the CCC is subject to execution within three days after the expiration of the ten days provided for appeal.

In case of non-execution of the decision within the prescribed period, the CCC issues the employee a certificate, which is an executive document. The certificate shall not be issued if the employee or the employer has filed an application for the transfer of the labor dispute to the court within the prescribed period.

If an individual labor dispute is not considered by the CCC within 10 days, the employee has the right to transfer its consideration to the court.

The decision of the CCC may be appealed by the employee or employer to the court within 10 days from the date of handing him a copy of the decision of the commission. If the deadline is missed for valid reasons, the court may restore this deadline and consider the individual labor dispute on the merits.

The courts consider individual labor disputes at the request of the employee, employer or trade union protecting the interests of the employee, when they do not agree with the decision of the CCC or when the employee goes to court, bypassing the CCC, as well as at the request of the prosecutor, if the decision of the CCC does not comply with laws or other normative legal acts.

Judicial order consideration of individual labor disputes:

- at the request of the employee - on reinstatement at work, regardless of the grounds for termination of the employment contract, on changing the date and wording of the reason for dismissal, on transferring to another job, on payment for the time of forced absenteeism;

- at the request of the employer - on compensation by the employee for harm caused to the organization, unless otherwise provided by federal laws.

Individual labor disputes are also considered directly in the courts:

- refusal to hire;

- persons working under an employment contract with employers - individuals;

- Individuals who believe they have been discriminated against.

An employee has the right to apply to the court for resolution of an individual labor dispute within three months from the day when he learned or should have learned about the violation of his right, and in case of dismissal disputes - within one month from the date of delivery of a copy of the dismissal order to him or from the day issuance of a work book.

The employer has the right to apply to the court for disputes on compensation by the employee for the harm caused to the organization, within one year of its day of discovery of the harm caused.

If, for good reason, the deadlines established by the first and second parts of Article 392 of the Labor Code of the Russian Federation are missed, they can be restored by the court.

Under collective labor dispute refers to 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 refusal of the employer to take into account the opinion of the elected representative body employees when adopting acts containing labor law norms in organizations.

Employees and their representatives have the right to put forward demands. The requirements put forward by the employees and (or) the representative body of the employees of the organization (branch, representative office, other separate structural unit 4) are approved at the relevant meeting (conference of employees). The meeting is eligible if more than half of the employees are present, the conference is eligible if at least 2/3 of the elected delegates are present.

The requirements of employees are set out in writing and sent to the employer.

The demands of trade unions and their associations are put forward and sent to the relevant parties of social partnership.

Employers are obliged to take into consideration the claims of employees sent to them.

The employer informs the representative body of the employees of the organization (branch, representative office, other separate structural unit) about the decision taken in writing within three working days from the date of receipt of the employees' request.

Read also: How to keep an employee from quitting

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

– consideration of a collective labor dispute by a conciliation commission;

– consideration of a collective labor dispute with the participation of a mediator;

in labor arbitration.

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

Conciliation procedures- this is the consideration of a collective labor dispute for the purpose of resolving it by a conciliation commission with the participation of an intermediary or in labor arbitration.

In accordance with Article 37 of the Constitution of the Russian Federation, the right of workers to strike is recognized as a way to resolve a collective labor dispute. strike - temporary voluntary refusal of employees to perform their labor duties (in whole or in part) in order to resolve a collective labor dispute.

If the conciliation procedures did not lead to the resolution of the collective labor dispute, or the employer evades conciliation procedures, does not comply with the agreement reached in the course of resolving the collective labor dispute, then the employees or and: representatives have the right to start organizing a strike.

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

Persons forcing employees to participate or refuse to participate in a strike shall bear disciplinary, administrative and criminal liability.

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

The decision to declare a strike is made by a meeting (conference) of employees of an organization (branch, representative office of this organization).

The strike is led by a representative body of workers. The employer must be notified of the start of the forthcoming strike no later than 10 calendar days in advance.

Article 413 of the Labor Code of the Russian Federation stipulates which strikes are illegal (during a state of emergency or martial law, in paramilitary formations, law enforcement agencies, in organizations directly servicing hazardous forms of production, at ambulance stations, in organizations directly related to ensuring the life of the population ).

Article 414 of the Labor Code of the Russian Federation establishes guarantees and the legal status of employees in connection with a strike (it is prohibited to apply disciplinary responsibility, the place of work and position are retained for the period of the strike, but the employer has the right not to pay wages for the period of participation in the strike, lockout is prohibited - the dismissal of employees at the initiative of the employer in connection with their participation in a collective labor dispute or strike).

The decision to recognize a strike as illegal is made by the courts of the constituent entities upon the application of the employer or the prosecutor. The decision that has entered into legal force is subject to immediate execution, and employees are required to start work the next day after receiving a copy. Employees who do not participate in the strike, but in connection with its conduct were not able to perform work, are paid for downtime in the amounts provided for by the Labor Code.

Individual labor disputes

Individual labor disputes are considered by the commission on labor disputes and the court.

Commission on Labor Disputes by its legal nature, it is a body formed on an equal footing. In accordance with Art. 384 of the Labor Code of the Russian Federation, commissions are formed at the initiative of employees and (or) the employer from an equal number of representatives of employees and the employer. Representatives of employees to the commission on labor disputes are elected by the general meeting of employees of the organization or delegated by the representative body of employees with subsequent approval at the general meeting of employees of the organization. Representatives of the employer are appointed to the commission by the head of the organization.

Labor dispute commissions consider individual labor disputes. arising in the organization, with the exception of disputes for which the Labor Code and other federal laws establish a different procedure for their consideration.

An employee may apply to a labor dispute committee within three months from the date on which he learned or should have known about the violation of his right.

Article 387 of the Labor Code of the Russian Federation provides for the procedure for considering an individual labor dispute in a labor dispute commission. The Commission is obliged to consider the dispute within ten calendar days from the date of submission of the application. The meeting of the commission is considered valid if it is attended by at least half of the members representing employees and at least half of the members representing the employer. The dispute is considered in the presence of the applicant and representatives of the employer. At the request of the employee, the dispute can be considered in his absence. For an objective and comprehensive consideration of the case, witnesses may be called to a meeting of the commission, specialists may be invited, necessary documents and calculations may be requested. The decision is taken by secret ballot by a simple majority of votes of the members of the commission present at the meeting. The committee's decision must be in writing. As a rule, the decision has a motivational and resolutive parts (part 2 of article 388 of the Labor Code of the Russian Federation).

Certified copies of the commission's decision are handed over to the employee and the head of the organization within three days from the date of the decision. The decision of the commission on labor disputes may be appealed by the employee to the court within ten days from the date of handing him a copy of the decision of the commission.

The decision of the commission on labor disputes is subject to immediate execution within three days after the expiration of the ten days provided for appeal. In case of non-execution of the decision of the commission within the established period, the commission for labor disputes issues a certificate to the employee. The certificate is an executive document, on the basis of which the bailiff enforces the decision of the commission on labor disputes forcibly.

The certificate is not issued to the employee if he or the employer applied within the prescribed period with an application to transfer the labor dispute to the court.

In accordance with the current legislation, individual labor disputes are considered by district (city) courts. As part of the general procedure for resolving labor disputes, the district (city) court acts in relation to the commission on labor disputes as the second instance in cases of applying to it with a statement:

• an employee whose application was not considered within 10 days by the commission on labor disputes;
• an employee, employer or relevant trade union protecting the interests of an employee who is a member of this trade union, when they disagree with the decision of the labor dispute committee;
• prosecutor, if the decision of the commission on labor disputes does not comply with laws and other regulatory legal acts.

The court is not endowed by the current legislation with the right to review decisions of commissions on labor disputes on its own initiative, for example, by way of supervision. At the same time, the legislation refers to the competence of the court the direct resolution of a number of labor disputes as the first instance. So, directly in the courts are considered labor disputes on applications:

• employees on reinstatement at work, regardless of the grounds for termination of the employment contract, on changing the date and wording of the reason for dismissal, on payment for the time of forced absenteeism or performance of lower-paid work;
• the employer on compensation by the employee for material damage caused to the property of the employer.

In addition, disputes are also considered directly in the courts:

• about denial of employment. For example, at the request of persons invited by way of transfer from another employer at the request of other persons with whom the employer, in accordance with the law, was obliged to conclude an employment contract (for example, with a person sent by the employment service for employment at the expense of a quota);
• at the request of persons working under an employment contract with employers - individuals;
• at the request of persons who believe that they have been discriminated against.

The Plenum of the Supreme Court of the Russian Federation in its decision of March 17, 2004 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" explained that a person who believes that his rights have been violated may, at his own discretion, choose the method of resolving an individual labor dispute. He has the right to either initially apply to the commission on labor disputes (except for cases that are directly considered by the court), and in case of disagreement with its decision - to the court within 10 days from the date of delivery of a copy of the commission's decision to him, or immediately go to court.

Consideration of labor disputes in court as a whole is subject to the general requirements of civil proceedings. The procedure for considering labor disputes in court is regulated by labor and civil procedural legislation.

For the resolution of an individual labor dispute, the employee has the right to apply to the court within three months from the day when he learned or should have learned about the violation of his right, and for disputes about dismissal - within one month from the date of delivery of a copy of the dismissal order to him or from the day issuance of a work book. In case of missing the established deadlines for valid reasons (for example, in case of illness, moving to another area), they can be restored by the court. The day of dismissal is considered the last day of work. However, the term for appealing the dismissal begins its course in accordance with Part 2 of Art. 14 of the Labor Code of the Russian Federation on the day following the delivery of the dismissal order to the employee.

According to Art. 28 Code of Civil Procedure of the Russian Federation, a claim against an organization is filed with the court at the location of the organization, if the claim is related to work in a branch or representative office of the organization, the claim can be filed at the location of the branch or representative office.

The judge has the right to refuse to accept the application in the following cases: there is a court decision that has entered into legal force on the same issue, the dispute is not under the jurisdiction of the court in general, or on a territorial basis.

When considering a dispute in court, the parties are the employee and the employer. Representatives of the prosecutor's office and the trade union may act as participants in the process. But even if the application is filed by the trade union or the prosecutor in defense of the rights of the worker, they do not become a party to the dispute, and the worker in whose defense they spoke must confirm the claims. Employer ( individual or an organization) mainly acts as a defendant, and only in the event of a claim against the employee for compensation for the material damage caused to the employer, he acts as a plaintiff.

In accordance with Art. 393 of the Labor Code of the Russian Federation, when applying to the court with a claim on claims arising from labor relations, employees are exempted from paying duties and court costs. Costs in relation to labor disputes may include amounts payable to witnesses and experts; costs associated with the production of on-site inspection; costs associated with the execution of a court decision.

Based on a comprehensive study of all materials, testimonies of the parties and other participants in the process, the court makes a decision. The decision formulates the conclusion of the court on the satisfaction of the claim or on the refusal of the claim. When satisfying the claims, the court clearly formulates what actions should be taken by the defendant in pursuance of the decision.

Read also: What to do if you do not sign a vacation application

If the plaintiff renounced the claim in the course of the trial or the dispute ended with an amicable agreement, the court does not issue a decision, but a ruling in which the waiver of the claim is recorded or the amicable agreement is approved.

The decision of the district (city) court may be appealed by the parties to the dispute to a higher court within ten days. The complaint will be filed through the court that issued the decision.

An individual labor dispute considered in court is terminated by the execution judgment. The execution of a judgment is the actual implementation of the instructions contained therein. Decisions of courts on labor disputes are subject to execution upon their entry into legal force, except for cases of immediate execution. Article 396 of the Labor Code of the Russian Federation provides that the decision to reinstate an employee who was illegally dismissed or transferred to another job is subject to immediate execution. In case of disagreement with the court decision, the employer has the right to appeal the court decision, but this does not affect the execution of the decision on reinstatement. Not later than the next business day after the court decision on reinstatement at work, the employer must issue an order for reinstatement, and the employee must begin to perform his duties. If the employer delays the execution of such a decision (for example, the employer did not issue an order to reinstate the employee at work), the body that made the decision issues a ruling on payment to the employee for the entire time of the delay in the execution of the decision of the average earnings or the difference in earnings.

The direct execution of decisions of judicial bodies on labor disputes is assigned to the bailiffs.

Introduction 3

Part 1. The concept of an individual labor dispute 4

1.1. Labor disputes 4

1.2. Individual labor disputes 6

Part 2. Procedure for consideration of individual labor disputes 10

2.1. Organization and procedure for the activities of the commission

on labor disputes (CTS) 10

Part 3. Consideration of individual labor disputes in court 14

3.1. Labor disputes considered in court 14

3.2. Rules of civil procedure when deciding

individual labor disputes 17

3.3. Execution of court decisions on individual

labor disputes 23

Conclusion 24

References 26

Introduction

Leading role in regulation public relations(including in the sphere of labor) belongs to the law. The Constitution of the Russian Federation of 1993 defines Russia as a democratic federal law-based state with republican form board. Being the basis for the development and improvement of all Russian legislation, the Constitution enshrines a wide range of human and civil rights and freedoms.

The new content received in it the traditional right to work. The human right to work is one of the most fundamental, and the ways of its implementation largely characterize the level of development of society. Today, citizens of the Russian Federation can exercise this constitutional right in a wide variety of forms. At the same time, its content has changed significantly: labor is free, and everyone has the opportunity to freely dispose of their abilities for work, choose their type of activity and profession. At the same time, forced labor is prohibited.

Everyone has the right to work in conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination and not lower than that established by federal law minimum size wages and the right to protection against unemployment.

Everyone has the right to rest. A person working under an employment contract is guaranteed the length of working time established by federal law, weekends and holidays, and paid annual leave.

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

However, these constitutional guarantees, which are very important for every person, are by no means automatically implemented in specific labor relations that a person enters into by entering a job as an employee and concluding an employment contract. They are specified taking into account laws, other regulatory legal acts (including those concluded within specific organizations) in an individual labor contract.

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

Currently, two negative trends have emerged in the field of labor relations: the growth of violations of the labor rights of workers (illegal dismissals, non-payment of wages, etc.) and the weakening of their judicial protection. The number of labor cases in courts has increased significantly. New very complex cases have appeared: on the recovery of moral harm caused to an employee by illegal dismissal, transfer to another job, non-payment of payments and benefits guaranteed by law, refusal to conclude an employment contract, and others.

Judicial protection is the constitutional right of every citizen. It, in turn, is a guarantee of the protection of his other rights and freedoms, enshrined in the Constitution of the Russian Federation, the Labor Code of the Russian Federation and other laws and international treaties. The right to judicial protection is not subject to any restrictions.

Turning to the issue of resolving individual labor disputes, let's start with the concept of a labor dispute in general, and an individual labor dispute in particular.

Part 1. The concept of an individual labor dispute

1.1. Labor disputes

labor dispute- this is a disagreement between the subjects of labor law on the application of labor legislation or on the establishment of new working conditions between them, received for permission by the jurisdictional body.

Otherwise, we can say that labor disputes are disagreements between the employee (employees) and the employer that have not been settled through direct negotiations regarding the establishment of new or changes in working conditions enshrined in legal acts and agreements. As well as the application of the norms of labor and other social legislation, which are declared to the appropriate jurisdictional body, that is, the body authorized by the state to make a decision legally binding on the parties.

Labor disputes can arise precisely when the disputing parties transfer the resolution of their disagreements to the jurisdictional body.

The emergence of labor disputes, as a rule, is preceded by violations of labor or other social rights of employees in the field of labor or other relations, which are the immediate cause (cause) of the dispute.

Labor disputes arise either due to some actions in the process of applying labor law norms, or due to inaction, that is, failure to comply with the requirements of regulatory enactments.

Disagreements arise in cases where the guilty party commits a labor offense against the other party, or when a labor offense has not been committed, but one of the parties believes that illegal actions have been committed against it.

labor offense Guilty non-fulfillment or improper fulfillment by the obligated subject of his labor duties in the sphere of labor and distribution is called, and, consequently, a violation of the right of another subject of this legal relationship.

Labor offenses in themselves are not yet labor disputes. The same action can be evaluated by each side in its own way. A discrepancy in assessments is a disagreement. This kind of disagreement between the subjects of labor law can develop into a labor dispute in the event that it is not settled by the parties themselves, but submitted to the legal authority, in other words, one party disputes the action (inaction) of the obligated party that violated its labor law.

Below is a diagram of a labor dispute in development.

1. Labor offense

2. Disagreement (different assessment of a labor offense by subjects of legal relations)

3. Direct negotiations of the disputing parties in order to independently resolve the disagreement

4. The emergence of a labor dispute (applying to the jurisdictional body to resolve disagreements).

In the Labor Code of the Russian Federation, the regulation of labor disputes is considered in chapters 60 and 61 (“Consideration of individual labor disputes” / art. 381-397 / and “Consideration of collective labor disputes” / art. 398-418 / respectively).

Labor disputes can be classified as:

By the disputing subject;

By the nature of the dispute;

By the type of disputed legal relationship.

Finding out the type of labor dispute will help to resolve it as soon as possible.

Let us consider in more detail the types of labor disputes.

First, according to the disputing subject All labor disputes are divided into individual and collective.

to individual it is possible to attribute disputes about transfer, increase or decrease in the qualification category, hiring or dismissal from work, etc. In individual disputes there are disagreements related to the rights and legitimate interests of a particular employee.

Collective there will be disputes between the trade union committee or the labor collective with the employer that arise when concluding a collective agreement, when approving bonus provisions, development plans, etc. In collective disputes the rights, powers and interests of the entire labor collective or part of it, the rights of the trade union committee as a representative of the workers of this production on issues of labor, life, culture are disputed and protected.

Second, by nature labor disputes are divided into:

To disputes about the application of labor legislation, where the violated right of an employee or trade union committee is protected and restored;

To disputes about establishing new or changing existing socio-economic conditions of work and life that are not regulated by law. They can arise from an employment legal relationship - on the establishment of new working conditions for an employee in a local manner, for example, a new vacation period according to a vacation schedule, a new tariff category, as well as those arising from the collective organizational and managerial nature of legal relations.

The Labor Code of the Russian Federation regulates the procedure for resolving labor disputes between employees and the employer regarding the application of labor legislation, the collective agreement, as well as other labor agreements and on establishing new or changing existing working conditions for the employee.

Thirdly, by the type of disputed legal relationship labor disputes can be divided into:

Disputes from labor relations;

Disputes from legal employment relations, for example, a dispute in connection with the refusal to hire a disabled person or another person with whom the employer is obliged to conclude an employment contract;

Disputes from legal relations on supervision and control over compliance with labor legislation and labor protection rules, for example, the actions of a sanitary, technical or legal inspector who imposed a fine on an official are disputed;

Disputes from legal relations on personnel training and advanced training in production, for example, referrals for advanced training to another locality;

Disputes from legal relations regarding compensation for material damage by an employee of the enterprise, for example, pairing the size of the deduction made by the employer from wages for the damage caused;

Disputes from legal relations on compensation by the enterprise of damage to the employee, in connection with damage to his health at work;

Disputes from the legal relations of the trade union committee with the employer on issues of labor, life, culture, for example, labor disputes about the timing of the revision of production standards;

Disputes from the legal relations of the labor collective with the employer, for example, during the election and approval of economic managers, etc.;

Disputes from social partnership relations.

When a labor dispute arises, it is important to classify it correctly, which will help determine its jurisdiction, and first of all, they find out whether it is an individual or collective dispute, about the application of labor legislation or about establishing new working conditions, changing existing ones, and also from what legal relationship the labor dispute arose .

1.2. Individual labor disputes

Individual labor disputes- these are unresolved disagreements that arise between the employee and the employer on the application of legislative and other regulatory acts on labor, the collective agreement and other labor agreements.

Individual labor disputes (Article 381 of the Labor Code of the Russian Federation) involve, on the one hand, the employee, and on the other, the employer.

Not all disputes that arise between an employee and an employer are labor disputes. For example, if an employee living in a factory apartment arbitrarily occupied a room vacated in it, and the enterprise filed a lawsuit against him for eviction, then such a dispute is not a labor dispute. The relations in connection with which it arose are regulated by the norms of not labor, but housing law. Labor disputes are only those disputes that arise from relations regulated by labor legislation.

As a rule, a labor dispute arises when the subject of an employment relationship believes that his right has been violated as a result of the incorrect application in this particular case of certain norms of labor legislation. Along with this, disputes may arise between the subjects of an employment relationship in connection with the establishment of new or changes in existing working conditions.

Labor disputes can be classified as follows - depending on the nature of the disputed legal relationship into:

1. Labor disputes of a material nature.

2. Labor disputes of an intangible nature (organizational, procedural, procedural).

The subject of consideration by special bodies (CCC, courts, Rostrudinspektsiya of the constituent entity of the Russian Federation) are mainly material disputes, and non-material disputes are quite rare.

The causes of individual labor disputes can be conditionally divided into two main groups:

a) subjective reasons (ignorance, misinterpretation of labor legislation, etc.);

b) objective reasons (poor organization of labor, omissions in the organizational and economic activities of the enterprise, unclear wording of certain norms of labor legislation, gaps in labor legislation, etc.).

One of the main reasons that give rise to individual labor disputes is poor knowledge or ignorance of the labor legislation by the employee and the employer, i.e. low legal culture.

In a number of cases, individual labor disputes arise as a result of the dishonest attitude of some employees to the performance of their labor duties and the presentation of illegal demands by them, as well as due to the deliberate violation of labor laws by individual employers.

Further improvement of labor legislation, improvement of the legal culture of citizens, improvement of labor organization - these and other measures carried out in our country are aimed at reducing and eradicating the causes that give rise to labor disputes, at strengthening the rule of law in labor relations.

Labor legislation provides for the resolution of three types of labor disputes:

1) between the employee and the employer regarding the application of existing working conditions (for example, disputes related to the dismissal of an employee, payment of wages, provision of leave, etc.);

2) between the employee and the employer regarding the establishment of new or changes in existing working conditions (for example, disputes over the assignment of new tariff categories, salaries, on the establishment of new production standards, etc.);

3) between the trade union committee and the employer regarding the establishment of new or changes in existing working conditions (for example, disputes arising from the conclusion of a collective agreement).

The subject of an individual labor dispute is the rights and legitimate interests of the employee, violated, in his opinion, by the administration in the application of labor legislation, other regulatory legal acts on labor, a collective agreement, agreement, labor contract, that is, in case of non-performance or improper performance of these acts. In such cases, an application for consideration of a labor dispute is submitted by the employee or, in his interests, on his behalf by the trade union body (trade union committee).

The subject of individual labor disputes between the administration and the employee may be the obligation to compensate for material damage to the organization by the employee's misconduct. In such cases, the application (claim) is submitted by the administration of the organization.

A few words about the competence and jurisdiction of the bodies for the consideration of individual labor disputes.

Competence- this is a set of powers (rights and obligations) of the body in a certain field of activity. At the same time, the powers of the body are also its duties. In particular, consideration of a labor dispute is the right and at the same time the duty of the relevant authorities, if they are approached with a proper application. Labor dispute resolution bodies are not entitled to refuse to accept an application or to consider a dispute.

Jurisdiction- this is a certain competence of certain bodies to consider certain types of labor disputes. Jurisdiction is determined by the type of labor dispute by subjects (individual or collective) and by content (on the establishment of working conditions or on their application). Each of the bodies considers disputes within its jurisdiction. Therefore, before applying for a solution to a labor dispute, you need to know where, to which body you should file an application (claim).

The jurisdiction of the jurisdictional body is determined legislative act(Labor Code and Civil Procedure Code) as a circle of labor disputes about the right, for consideration and resolution of which the body is competent. It is in the circle of those labor disputes that each jurisdictional body has the right to consider and resolve that the division of jurisdiction of each body in the field of dispute resolution is carried out. The decision of the labor dispute body only then has legal force when it is made on the issue under its jurisdiction.

Therefore, it is necessary to distinguish between the procedure for considering individual labor disputes in the CCC, the court and in a higher body. All these bodies can carry out remedial actions, but in a different order.

Jurisdiction is determined depending on the parties to the dispute. Individual labor disputes in accordance with Art. 382 of the Labor Code of the Russian Federation are considered by the CCC and the courts. However, today the Labor Code of the Russian Federation provides for the possibility of an employee filing a complaint (a request to resolve a problem) to the state labor inspectorate of a subject of the federation. However, such an inspection is not the main body for the consideration of individual labor disputes.

The term jurisdiction is usually defined as a range of disputes, a range of cases, the resolution of which is assigned to the jurisdiction of a particular body or official. The term jurisdiction is applied by the type of dispute or by the type of body that considers the dispute. In the first case, we are talking about the right of bodies to consider certain disputes. For example, disputes about the reinstatement of employees are subject to consideration only in court.

The Labor Code of the Russian Federation in a number of articles directly provides for the appeal of certain decisions of the employer to the Federal Labor Inspectorate, for example, Art. 193 of the Labor Code of the Russian Federation. Art. 291 of the Labor Code of the Russian Federation provides for the possibility, when investigating industrial accidents, to appeal the decision to the courts or the Federal Labor Inspectorate. Thus, it can be said that state inspection labor is empowered to resolve labor disputes (collective and individual) between employees and the employer.

The competence of specialized bodies for the resolution of labor disputes - they are named by the Labor Code of the Russian Federation in Art. 382 (CCC and court). Now no one has the right to cancel the decision of the CCC, and the prosecutor can file a complaint either with the court or with the CCC.

KTS has jurisdiction over all individual labor disputes, with the exception of those that fall within the competence of the courts. To do this, it is necessary to find out whether the dispute is an individual labor dispute and determine jurisdiction, and secondly, to determine whether the dispute falls within the exclusive competence of the court.

Disputes related to employment contracts :

1. Recruitment-related, for example, questions about the date of employment, about changing the name, job title, profession, specialty. This is especially true for those workers whose professions are associated with certain benefits, for example, with a seniority pension.

2. Application and modification of the terms of the employment contract, art. 381 of the Labor Code of the Russian Federation included disagreements on changes in working conditions (including wage conditions) among individual labor disputes. Disputes on the application of employees for transfer to another job, for the payment of compensation for the performance of lower-paid work after the transfer shall fall within the competence of the court. Art. 394 of the Turda Code of the Russian Federation speaks of a decision to transfer to another job. Correlating articles 391 and 394, we can talk about transfers carried out contrary to the interests of the employee, and thus it can be recognized that the CCC has the right to consider transfer disputes if the administration does not comply with the requirements of the transfer law. This includes transfers of pregnant women, women with young children, persons with reduced working capacity, etc., i.e. that group of people who are transferred only with their consent.

3. Termination of the employment contract. By general rule, disputes about the reinstatement of an illegally dismissed employee must be considered in court, however, there are certain rules that oblige, under the conditions specified in the law, to dismiss an employee who wants to terminate an employment relationship with an employer. For example, an employee entered a university and wants to terminate the employment contract, but the employer does not want to terminate the contract and claims that the employee must work for another two weeks - then you can contact the KTS to resolve this issue. Also, if the employee is not presented with a job that is stipulated by an employment contract, you can contact the KTS.

The main issue is the issue of wages. The determination of the jurisdiction of such disputes is beyond doubt.

General issues of remuneration: according to Art. 133 of the Labor Code of the Russian Federation, the monthly salary of an employee who has worked the fulfilled norm of work for a month and worked the norm of time cannot be lower than the minimum wage. Also, the basic tariff rate should not be less than the minimum wage.

Prize question. The CCC may consider disputes related to bonuses that are part of the employee's salary, bonus issues for other reasons do not fall within the competence of the CCC (for example, bonuses based on the results of competitions associated with anniversaries, for rationalistic activities). There is such a formula, KTS, as a rule, considers disputes related to bonuses, if the right to receive this bonus arises for all employees who have fulfilled the conditions of the bonus provision. Often, individual issues of stimulating the work of an employee are resolved in a collective agreement, for example, it may include an obligation to pay bonuses not taking into account, but in agreement with the trade union. Premium Position Becomes Local normative act, and accordingly, the employer cannot unilaterally deviate from the conditions of the provision and the employee can appeal against these actions of the employer. There may be a fund for the head of the shop, foreman, bonuses from this fund can be paid with the agreement of the trade union group. It is practically impossible to demand payment of such a premium through the KTS. Because these awards are pure subjectivity. However, the KTS has no right to refuse to accept such an application due to lack of jurisdiction. But they can explain to the employee the futility of such proceedings.

Remuneration in case of deviation from labor standards (for overtime work, etc.). Because These are disputes related to the application of labor law, they are under the jurisdiction of the CCC. The jurisdiction of the KTS includes issues related to wages, with the release of defective products during downtime. In a marriage, there may be no fault of employees, a complete or partial marriage is also determined, and determining the degree of reduction in prices does not fall within the competence of the CCC, because. This is a dispute about the establishment of working conditions. A downtime dispute may arise not only on the issue of refusal to pay downtime, but also on the amount of such payments. For example, the employer refuses to pay for forced downtime due to the fact that the employee did not warn about the start of downtime. Such a dispute, of course, is under the jurisdiction of the CCC. Although the rule is quite complicated, for example, the electricity was turned off, and that 1000 employees with statements will run to the employer? In addition, electricity can be turned off for 30 seconds, and for 8 hours.

Withholding from wages is a significant proportion of payroll issues that go through KTS. AT general view their jurisdiction can be defined as follows - all disputes related to the withholding of wages provided for in labor legislation can be considered by the CCC. Those. withholding disputes that fall under other branches of law, for example, withholding disputes, cannot be considered by the CCC. For example, if income tax is withheld in a larger amount than it seems to the employee, then such disputes must be resolved through the tax authorities and the actions of the tax authorities are appealed to the court, and not to the CCC.

Warranty compensation payments. In all cases when such payments are not made or their amount is less than it should be, the employee has the right to apply to the KTS. But, for example, disputes about the recovery of the average salary in the event of a delay in issuing a work book are subject to consideration in general order, i.e. and the CCC can resolve them.

Dispute over working time and rest time. For example, persons working on a flexible schedule, in case of violation, can be transferred to a rigid schedule for up to three months, in case of repeated violation, up to two years, disputes in such cases are also under the jurisdiction of the CCC.

In addition to appealing against penalties, employees can appeal against the application of other legal measures, for example, if the employee believes that a disciplinary sanction has been wrongfully imposed on him or he does not agree with the size of the sanction or its type. In addition, such a penalty as an oral reprimand can be challenged in the CCC. Requirements for early removal of a disciplinary sanction are not considered by the CCC.

Judicial jurisdiction of individual labor disputes. On the one hand, the range of disputes subject to litigation is determined, on the other hand, the competence of the court to consider labor cases is determined.

Since the CCC is a body for pre-trial consideration of labor disputes, it means that any issue under the jurisdiction of the CCC can be considered in court. Art. 391 of the Labor Code of the Russian Federation provides for the employee's ability to decide where to consider his labor dispute. However, there is a group of disputes where the discretion of the employee is narrowed to only one body - the court. Art. 391 names the cases of exclusive jurisdiction of the courts of individual labor disputes:

1. Individual labor disputes upon the employee's application for reinstatement, regardless of the grounds for dismissal.

2. On the wording of the grounds and reasons for dismissal.

3. About payment for the time of forced absenteeism, etc.

4. Disputes on the statements of the employer for compensation for harm caused to the organization by the employee.

5. According to the applications of persons who are denied employment.

6. Persons who believe they have been discriminated against.

Part 2. The procedure for considering individual labor disputes

2.1. Organization and procedure for the activities of the commission on labor disputes (CTC)

Individual labor disputes are considered by labor dispute commissions (CTS) and courts (Article 382 of the Labor Code of the Russian Federation).

The interested person has the right (regardless of applying to the CCC and the court) to file a complaint about a violation of labor legislation with other competent authorities, for example, the prosecutor's office.

The established procedure for considering individual labor disputes is accessible and convenient, and ensures the real restoration of violated labor rights. It is based on the following democratic principles: the equal right of all workers to protect their labor rights; availability of appeal to labor dispute resolution bodies; publicity, objectivity and completeness of the investigation of the case; speed of consideration of labor disputes; enforcement of decisions on labor disputes.

Proper and prompt resolution of labor disputes contributes to strengthening the rule of law in labor relations, protecting the rights and legally protected interests of citizens, and fostering a respectful attitude to work.

The procedure for considering individual labor disputes is regulated by the Labor Code of the Russian Federation (Articles 381-397), the Civil Procedure Code of the Russian Federation and other regulations.

Labor dispute commissions are formed from an equal number of representatives of employees and the employer (Article 384 of the Labor Code of the Russian Federation) at the initiative of employees or the employer.

Representatives of the employer are appointed to the commission by the head of the organization. Representatives of employees are elected by the general meeting of employees of the organization or nominated as delegates by the representative body of employees with mandatory approval at the general meeting of employees of the organization.

It is advisable to allocate at least 2-3 representatives from each party to the commission on labor disputes. This prevents violation of the deadlines for consideration of employees' applications in the absence of one of the commission members at work and ensures that CCC meetings are held in the competent composition of its representatives.

This or that representative may be prematurely recalled by the party that appointed him. In this case, he must be replaced by another representative. Persons with experience in working with personnel, knowledge of labor legislation, wage issues, who are respected and trusted in the team should be allocated to the CCC.

By a written agreement between the trade union and the employer, or in cases provided for in the collective agreement, CCCs can be created in the structural divisions of enterprises (Article 384 of the Labor Code of the Russian Federation). These commissions operate on the same principles as the commissions on labor disputes of the organization. Individual labor disputes in the CCC of the structural divisions of the organization may be considered within the powers of these divisions.

The Commission on Labor Disputes shall elect from among its members the Chairman and Secretary of the Commission. The KTS of the organization has its own seal.

Technical maintenance of the CCC (paperwork, preparation and issuance of extracts from the minutes of the meeting, etc.) is carried out by the employer. By his order, the employer appoints an employee who is entrusted with Maintenance commissions. As a rule, such employees are appointed without specifying the term of their work on servicing the CCC.

The commission considers labor disputes only on applications from employees. The employer does not have the right to apply to the CCC for the resolution of a labor dispute.

As a general rule, a labor dispute is considered by the commission if the employee has not settled the differences during direct negotiations with the employer. An employee may apply to the CCC for a resolution of a labor dispute within three months from the day he learned or should have known about the violation of his right. A deadline missed for a good reason can be restored by the CCC (Article 386 of the Labor Code of the Russian Federation).

The law does not establish a special form of application to the CCC.

Refusal to accept an application is possible only if the labor dispute has already been considered in the CCC, and an appropriate decision has been made on it, or the parties have not reached an agreement.

The commission is obliged to consider a labor dispute within ten days from the date the employee submitted an application (Article 387 of the Labor Code of the Russian Federation). Meetings of the CCC are held outside working hours. At enterprises with a shift mode of operation, meetings of the CCC are scheduled at such a time that the interested employee, as well as witnesses, can attend the meeting of the commission during their non-working hours.

Participation of all representatives of the parties allocated to the CCC is not mandatory at the meeting of the commission. But the CCC meeting is considered competent if at least half of the members representing employees and at least half of the members representing the employer are present (Article 387 of the Labor Code of the Russian Federation).

All disputes must be considered by the commission in the presence of the employee who submitted the application. Absentee consideration of a labor dispute is allowed only upon a written application of the employee. If the employee did not appear at the meeting of the commission, consideration of his application is postponed. If the employee repeatedly fails to appear without good reason, the commission may remove this application from consideration, which does not deprive the employee of the right to file an application again, but only within the period established by the Labor Code of the Russian Federation.

At the beginning of the commission meeting, the chairman announces the composition of the CCC, acquaints those present with the application received, establishes the appearance of the applicant, the representative of the employer, witnesses and other persons called in connection with the consideration of the dispute.

In order to clarify all the circumstances of the dispute under consideration, the commission has the right to invite witnesses to its meeting, instruct individuals to conduct technical and accounting audits, demand that the employer submit required documents and calculations. The CCC has the right to take other actions necessary for a comprehensive and complete study of all the materials of the case. The decision of the CCC is taken by secret ballot by a simple majority of votes of the members of the commission present at the meeting (Article 388 of the Labor Code of the Russian Federation).

The decision of the CCC is binding. The binding nature of the decisions of the CCC lies in the need to execute them by the administration, and in case of refusal to voluntarily execute, to ensure enforcement. The Commission has no right to review its decisions. The decision of the commission must be motivated, based on legislation, collective or labor contracts, internal labor regulations and other regulations. It must correspond to the actual circumstances of the case, as well as exhaustively resolve the labor dispute on the merits. The decision of the commission must be specific, not requiring any clarifications or explanations. The operative part of the decision of the CCC should be stated not in the form of any petitions, but in an imperative form (for example: “recognize the transfer as illegal and reinstate at the previous job”, “cancel the order to impose a disciplinary sanction”, etc.). The decisions of the commission on monetary claims must indicate the exact amount due to the employee. At each meeting of the CCC, minutes are kept in the prescribed form. It is signed by the chairman and secretary of the meeting and certified by the seal of the commission.

A copy of the commission's decision is handed over to the employee and employer within 3 days.

In the event that the employer fails to comply with the decision of the CCC within the prescribed period, the employee is issued a certificate that has the force of a writ of execution (Article 389 of the Labor Code of the Russian Federation).

The certificate is not issued if the employee or the employer applied to the court with an application for resolving a labor dispute within ten days from the date of delivery of a copy of the CCC decision to them or from the day when a copy of the CCC decision should be issued.

Labor dispute commissions have the right to consider only those disputes that are within their jurisdiction by law or other regulatory act, i.e. subordinate to them.

Here are some of the disputes under the jurisdiction of the CCC:

1. KTS has jurisdiction over disputes of employees regarding compliance with the procedure established by law for the introduction and revision of norms and standards for wages. In addition, KTS has jurisdiction over disputes over compliance by the employer with working conditions that ensure the fulfillment of production standards.

2. KTS is a mandatory primary body for the consideration of disagreements on wages in cases of non-compliance with production standards. The commission is subordinate to disputes about the reasons for non-fulfillment of production standards, about the provision by the employer of normal working conditions, etc.

The competence of the KTS by law includes disputes of employees on issues of remuneration during downtime and defective products: the reasons for downtime and defective products, the fault of the employee, the amount of remuneration for downtime, the degree of suitability of manufactured products, the volume and payment of labor expended, etc.

3. Payment for overtime work and work at night, compensation for work on weekends and holidays. For work on a day off, another day of rest is provided. In addition, work on a day off can be compensated in cash no less than double the amount. The KTS resolves disputes between the employee and the employer about the type of compensation for work on holidays (time off or cash payment) and the amount of cash payment.

4. Remuneration of labor in the performance of work of different qualifications, with multi-machine maintenance, with the combination of professions (specialties), with substitution. The demands of the workers on the establishment of an inter-rank difference and disputes over its size do not fall within the competence of the CCC. Disagreements over wages during substitution are under the jurisdiction of the commission on labor disputes.

5. Payment of compensation for business trips, transfer, admission or assignment to work in another area. Disputes over the receipt of the corresponding amounts of money are under the jurisdiction of the CCC.

Disputes related to the payment of compensations when transferring, hiring or sending to work in another locality (in particular, disputes about the right to receive compensation, about the types and amounts of compensation payments) are considered by the CCC at the new place of work.

6. Refund of amounts deducted from the employee's wages. If the employee does not agree with the deduction or its size, the labor dispute on his application is considered in the CCC. In cases where the employer, in violation of the established procedure, made a deduction from the employee's salary, the CCC, upon the employee's complaint, has the right to decide on the return of the illegally withheld amount.

Complaints regarding deductions from wages made by the employer in repayment of fines, as well as monetary charges imposed on officials by the competent authorities, are not under the jurisdiction of the CCC.

7. The right to receive and the amount of the bonus due to the employee, provided for by the wage system. KTS has jurisdiction over disputes over bonuses that are paid to employees of certain categories for achieving predetermined indicators and bonus conditions.

The commissions consider disputes on the payment of remuneration based on the results of the enterprise's work for the year. Disputes about the incorrect application of the Regulations on bonuses in force at the enterprise also fall within the competence of the CCC.

Disputes on the payment of bonuses that are in the nature of a one-time incentive cannot be considered in the CCC.

8. Provision of annual leave of a fixed duration, payment for leave and payment of monetary compensation for unused leave upon dismissal. An employee's complaint about not being granted leave at the time set by the schedule is subject to consideration by the labor dispute commission.

As a general rule, disputes between an employee and an employer about the right and duration of unpaid leave cannot be considered in the CCC. In some cases, the law provides for the obligation of the employer to provide employees with unpaid leave. The employee has the right to appeal against the refusal of the employer to grant such leave to the commission on labor disputes.

9. Payment of remuneration for the length of service. KTS has the right to consider disputes on the amount of payments of such remuneration in the presence of the required length of service.

Disputes about the length of service, which gives the right to pay remuneration for the length of service, are not under the jurisdiction of KTS.

10. Imposition of disciplinary sanctions. The CCC considers disputes related to the imposition of disciplinary sanctions under the rules of internal labor regulations (except for applications by certain categories of employees).

11. Issuance and use of overalls, footwear, personal protective equipment; dispensing milk or other equivalent food products, therapeutic and preventive nutrition. Disputes related to the application of the List of professions and jobs that give the right to receive overalls, safety shoes, personal protective equipment, therapeutic and preventive nutrition are under the jurisdiction of the CCC.

KTS is not entitled to consider disputes on the following issues:

a) establishing production standards (time standards), service standards (number standards), official salaries and tariff rates, changes in staffing;

b) calculation, appointment and payment of benefits for state social insurance and pensions, calculation seniority for the appointment of benefits and pensions;

c) calculation of seniority for the provision of benefits and benefits, when the legislation establishes a different procedure for considering these disputes (calculation of seniority for payment of remuneration for seniority, determination of wage rates, official salaries, etc.);

d) reinstatement at work of persons dismissed at the initiative of the employer;

e) provision and distribution of living space, as well as meeting the domestic needs of employees.

In addition, the commissions cannot consider labor disputes on some other issues, when a different procedure for their consideration is established in accordance with the current legislation.

If it is not clear whether the dispute is under the jurisdiction of the CCC or not, the issue should be considered at a meeting of the commission.

In addition to the KTS of the entire organization, on the basis of Art. 384 of the Labor Code of the Russian Federation "by decision of the general meeting of employees, labor dispute commissions may be formed in structural divisions of the organization." The commissions on labor disputes of structural subdivisions of organizations may consider individual labor disputes within the powers of these subdivisions.

Most disputes from labor relations on the application of labor legislation are considered in a general manner, that is, starting with the CCC, and if the CCC has not considered the dispute within 10 days, the employee has the right to transfer it to a court decision. Such a general procedure is established by Art. 390 of the Labor Code of the Russian Federation, and for the court also the Code of Civil Procedure of the RSFSR.

Applying to the CCC does not deprive the employee of the right to judicial protection (Article 391 of the Labor Code of the Russian Federation).

Part 3. Consideration of individual labor disputes in court

3.1. Labor disputes in court

Let's move on to a description of the competence and jurisdiction in relation to labor disputes considered by the courts of the Russian Federation. The jurisdiction of labor disputes to the court is the competence of the court to resolve a dispute on the law and other cases affecting the rights and legally protected interests of the employee and employer.

When considering labor cases in court, the procedure provided for by the Civil Procedure Code of the RSFSR (CPC RSFSR) is used. For the correct application of the norms of the Labor Code of the Russian Federation, it is necessary to be guided by the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 16 of December 22, 1992 (as amended on December 21, 1993) “On Certain Issues of the Application of Legislation by the Courts of the Russian Federation in the Resolution of Labor Disputes”; dated December 20, 1994, No. 10 “Some questions of the application of legislation on compensation for moral damage”; dated October 31, 1995, No. 8 “On some issues of the application by the courts of the Constitution of the Russian Federation in the administration of justice”, etc. Particular emphasis should be placed on the role of the Constitution of the Russian Federation, the norms of which take precedence over all laws and by-laws, including those governing labor relations.

The court is one of the bodies for the consideration of labor disputes. In accordance with Article 391 of the Labor Code of the Russian Federation, district (city) courts consider labor disputes on the basis of an application:

a) an employee or employer, if they do not agree with the decision of the labor dispute commission;

b) an employee, if the labor dispute commission did not consider his application within the ten-day period established by law;

c) the prosecutor, if he considers that the decision of the CCC is contrary to the law.

Directly in court (without applying to the CCC) labor disputes are considered on the basis of applications:

a) employees working for employers where labor dispute commissions have not been established;

b) employees, if they have not applied to the commission for labor disputes;

c) employees on reinstatement at work, regardless of the grounds for termination of the employment contract, on changing the date and wording of the reason for dismissal, on transferring to another job, on payment for the time of forced absenteeism or performing lower-paid work, with the exception of disputes of employees for whom a different procedure for their consideration;

d) employers on compensation by employees for material damage caused to them;

e) employees about the employer's refusal to draw up an accident report or disagreement with its content.

Individual labor disputes are also considered directly in court:

a) refusal to hire;

b) persons working under an employment contract with employers - individuals;

c) persons who believe that they have been discriminated against (Article 391 of the Labor Code of the Russian Federation).

Thus, the range of labor disputes considered by the courts is much wider than the range of labor disputes under the jurisdiction of the CCC.

Labor disputes on the transfer to another job and the payment of average earnings for the period of forced absenteeism on the recovery of wages, including bonuses provided for by the wage system; on the amount of earnings accrued taking into account the coefficient of labor participation; on the application of disciplinary sanctions; disputes arising in connection with the incorrectness or inaccuracy of entries in the work book on hiring, transferring to another job, grounds for dismissal, if these entries do not comply with the order (instruction) or other documents, are considered in courts in compliance with the preliminary extrajudicial procedure established by law permissions. However, these disputes, if the employer does not have a labor dispute commission, as well as in the event of liquidation of the enterprise and termination of the activity of the labor dispute commission in connection with this, and all labor disputes subordinate to the court, employees released from work with reference to unsatisfactory test results.

In cases where the obligation to establish certain working conditions for an employee is assigned by law to the employer, and he refuses to do so, the employee can challenge such a refusal to the commission on labor disputes, and if he disagrees with the decision of the commission, he can apply to the court with a claim for the establishment of certain laws. working conditions.

Article 392 of the Labor Code of the Russian Federation establishes deadlines for applying to the court for the resolution of labor disputes.

In cases of dismissal, employees can apply to the court with a claim for reinstatement at work within a month from the date of delivery of a copy of the dismissal order or from the date of issuance of a work book with a corresponding entry, or from the date of refusal to issue these documents.

For the resolution of other labor disputes, employees may apply to the court within 3 months from the day they learned or should have learned about the violation of their rights.

For the employer to apply to the court with a claim for the recovery of material damage caused by the employee, a period of one year is set from the date of discovery of the damage.

Regardless of who initiated the case in court (at the request of the employee or at the request of the employer), the court resolves a labor dispute in the manner of action proceedings, in which the plaintiff is the employee, and the defendant is the employer challenging the employee's claims.

If, for good reason, the deadlines established by Article 392 of the Labor Code of the Russian Federation are missed, they can be restored by the court.

The judge is not entitled to refuse to accept the statement of claim on the grounds of missing the deadline for filing a claim. If the reasons for missing the term are recognized as valid, the court may restore this term, which must be indicated in the decision. If the court, having examined the materials of the case, establishes that the deadline for appeal has been missed for an unexcused reason, it shall dismiss the claim.

Claims for labor disputes are brought to the district (city) court at the place of residence of the defendant, and a claim against a legal entity - at the location of the body legal entity. Claims for damages may also be filed at the place where the damage was caused.

According to Article 393 of the Labor Code of the Russian Federation, “when applying to the court with a claim on claims arising from labor relations, employees are exempted from paying duties and court costs.”

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

The decision of the commission on labor disputes to refuse to satisfy the claims of the employee on the grounds of missing the deadline for applying to the commission is not an obstacle to initiating a case in court. Having established the deadline for applying to the court or commission, the court (judge) is obliged to explain to the plaintiff the right to file an application for the restoration of the deadline, indicating the reason for the delay.

After accepting an application for a labor dispute, the judge must properly prepare the case for trial. To this end, he interrogates the applicant on the merits of his claims, invites him to submit (if necessary) additional evidence, finds out from the defendant what objections he has and what evidence these objections can be confirmed, and also performs other actions provided for by civil procedural legislation .

When preparing a labor case for trial, the judge decides which persons should participate in the case. Thus, when preparing for the trial of a reinstatement case, the judge has the right to involve in the case the official, by whose order the employee was dismissed or transferred with a clear violation of the law, as a third party to the side of the defendant.

The necessary evidence must be collected in order to establish the circumstances that are important for the correct resolution of a labor dispute. Such evidence is, for example, in cases of compensation for damage caused to the enterprise, job descriptions that determine labor functions defendant; documents confirming the fact of harm and the amount of damage; certificates of wages, family and financial status of the defendant; a copy of the liability agreement, etc.

3.2. Rules of civil proceedings in resolving labor disputes

Labor disputes in a court session are considered according to the general rules of civil proceedings.

A few words about the territorial jurisdiction of individual labor disputes. As a general rule, all applications arising from disagreements in the field of labor relations are filed with the court at the location or residence of the defendant. The location of the legal entity in accordance with Art. 54 of the Civil Code of the Russian Federation is the place of its registration, unless otherwise provided in the charter of the enterprise. However, in accordance with Art. 117 of the Code of Civil Procedure of the RSFSR, claims against a legal entity may also be brought at the location of the body or property of the legal entity. The place of residence of a citizen is the place where he permanently or predominantly resides, usually it is determined by the place of registration of the citizen.

The Code of Civil Procedure of the RSFSR establishes the following process for filing a claim with the court: “a statement of claim is filed with the court in writing, it must indicate:

1) the name of the court to which the application is submitted;

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

3) the name of the defendant, his place of residence or, if the defendant is a legal entity, his location;

4) the circumstances on which the plaintiff bases his claim and evidence confirming the circumstances stated by the plaintiff;

5) the plaintiff's claim;

6) the value of the claim, if the claim is subject to evaluation;

7) a list of documents attached to the application.

The application shall be signed by the plaintiff or his representative. A statement of claim filed by a representative must be accompanied by a power of attorney or other document certifying the authority of the representative. The statement of claim is submitted to the court with copies according to the number of defendants. The judge may, depending on the complexity and nature of the case, order the plaintiff to submit copies of the documents attached to the statement of claim.”

When accepting an application on a labor dispute, the judge determines its jurisdiction (cognizance) on the subject of the dispute, on a territorial basis. The judge alone has the right to refuse to accept the application in the following cases:

1) if the application is not subject to consideration in the courts;

2) if the person concerned who applied to the court did not comply with the procedure for preliminary out-of-court resolution of the case established by law for this category of cases;

3) if there is a court decision or a court ruling that has entered into force, issued in a dispute between the same parties, on the same subject and on the same grounds, on accepting the plaintiff's waiver of the claim or on approving the amicable agreement of the parties;

4) if there is a case pending before the court on a dispute between the same parties, on the same subject and on the same grounds;

5) if the case is beyond the jurisdiction of this court;

6) if the application is submitted by an incompetent person;

7) if the application on behalf of the interested person is submitted by a person who does not have the authority to conduct the case.

The list of grounds on which an application may be refused is exhaustive. The judge, refusing to accept the application, issues a reasoned ruling on this. In the ruling, the judge is obliged to indicate to which body the applicant should apply if the case is not within the jurisdiction of the court, or how to eliminate the circumstances that prevent the emergence of the case.

The decision of the judge to refuse to accept the statement of claim shall be handed over to the applicant simultaneously with the return of the documents submitted by him. A private complaint or a private protest may be filed against this ruling. In other words, these rulings can be appealed in cassation by filing a private complaint by the person who was denied acceptance of the application, or by bringing a private protest by the relevant prosecutor. If the ruling on refusal to accept the application is left unchanged in the cassation instance, it may be appealed in the supervisory procedure.

After accepting the application, the judge prepares the case for trial. Accurate and steadfast compliance with the requirements of the law on proper preparation of the case for trial is one of the main conditions for its correct and timely resolution. As a rule, the courts of the Russian Federation start legal proceedings only after all necessary actions provided for in Ch. 14 Code of Civil Procedure of the RSFSR. However, in a number of cases, the preparation of the case for trial is not carried out or is of a formal nature. This leads to the postponement of the trial, red tape, and often to the issuance of unreasonable decisions.

The Code of Civil Procedure of the RSFSR formulates the tasks of preparing a case for trial as follows:

1. clarification of the circumstances that are important for the correct resolution of the case;

2. determination of the legal relationship of the parties and the law that should be followed;

3. resolution of the issue of the composition of the persons participating in the case;

4. Determination of the evidence that each party must provide in support of its allegations.

In order to prepare a case for trial, the judge does the following:

1. interrogates the plaintiff on the merits of his claims, finds out possible objections from the defendant, suggests, if necessary, submit additional evidence, explains to the plaintiff his procedural rights and obligations;

2. if necessary, calls the defendant, interrogates him on the circumstances of the case, finds out what objections there are to the claim and what evidence these objections can be confirmed, in particular difficult cases invites the defendant to submit written explanations on the case, explains to the defendant his procedural rights and obligations;

3. resolves the issue of joining the case by co-plaintiffs, co-defendants and third parties, and also resolves the issue of replacing the wrong party;

4. explains to the parties their right to apply for dispute resolution to an arbitration court and the consequences of such action;

5. notify the time and place of the trial of the case of citizens or organizations interested in its outcome that are not involved in the process;

6. resolves the issue of summoning witnesses to the court session;

7. appoints an examination, experts to conduct it;

8. at the request of the parties, demand written and material evidence from citizens or organizations;

9. in cases of urgency, performs, with notification of the persons participating in the case, an on-the-spot inspection of written and material evidence;

11. resolves the issue of securing a claim;

12. perform other necessary procedural actions.

In preparing for the trial of a reinstatement case, the court also clarifies the issue of the need to involve in the case an official guilty of dismissal or transfer of an employee in clear violation of the law, in order to impose on him material liability for damage caused by such dismissal or transfer. Under the clear violation of the law should be understood:

1. dismissal without the consent of the trade union body, when it is required;

2. dismissal on grounds not provided for by law;

3. dismissal of pregnant women, nursing mothers and women with children under the age of three, if the administration was aware of these circumstances;

4. dismissal of persons under the age of 18 without the consent of the district (city) commission on juvenile affairs;

5. dismissal of a people's deputy without the consent of the relevant authority;

6. dismissal or transfer of those who are not exempt from production work chairmen, as well as trade union organizers, dismissal of members of trade union committees without the consent of a higher trade union body;

7. transfer to another permanent job without the consent of the employee.

Also, in the process of preparing the case for trial, the judge sends or hands over to the defendant copies of the statement of claim and the documents attached to it substantiating the claims of the plaintiff, and offers to present evidence in support of his objections within the time period established by him. Failure of the defendant to submit written explanations and evidence in the event of his failure to appear at the court session does not prevent the consideration of the case based on the evidence available in the case.

In accordance with Art. 142 of the Code of Civil Procedure of the RSFSR, the judge is obliged to issue a ruling on the preparation of the case for trial, indicating the specific actions to be taken. Such a ruling must also be made if there is a need for additional steps to prepare the case for trial after the cancellation of the earlier court decision and the referral of the case for a new trial or the suspension or termination of the proceedings. Having recognized the case as prepared, the judge issues a ruling appointing it for trial in a court session and notifies the parties and other participants in the process of the time and place of the trial.

Cases on claims arising from labor relations are considered by the court of first instance, if the parties are in the same city or district, no later than 10 days, and in other cases - no later than 20 days from the day the case was prepared for trial.

Procedural actions are performed within the time limits established by law. In cases where procedural deadlines are not established by law, they are appointed by the court. The deadlines for the performance of procedural actions are determined by the exact calendar date, an indication of an event that must necessarily occur, or a period of time. In the latter case, the action can be performed during the entire period.

The course of the procedural term, calculated in years, months or days, begins on the next day after the calendar date or the occurrence of the event that determines its beginning. A term calculated in years shall expire on the respective month and day of the last year of the term. A term calculated in months shall expire on the respective month and day of the last month of the term. If the end of a term calculated in months falls on a month that does not have a corresponding date, then the term expires on the last day of that month. In cases where the last day of the term falls on a non-working day, the expiry day of the term shall be the next working day following it.

A procedural action for which a time limit has been set may be performed before twenty-four hours on the last day of the time limit. If the complaint, documents or sums of money were handed over to the post office or telegraph before twenty-four hours of the last day of the term, then the term shall not be considered as missed.

The right to perform procedural actions is extinguished with the expiration of the period established by law or appointed by the court. Complaints and documents submitted after the expiration of the procedural deadlines are left without consideration.

The course of all unexpired procedural terms is suspended with the suspension of the proceedings. Suspension of terms begins from the time of the occurrence of the circumstances that served as the basis for the suspension of proceedings. From the date of resumption of proceedings, the course of procedural time limits continues.

The terms set by the court may be extended by the court. Persons who missed the deadline established by law for reasons recognized by the court as valid, the missed deadline may be restored. An application for the restoration of the missed period shall be submitted to the court in which the procedural action was to be performed and considered at the court session. The persons participating in the case are notified of the time and place of the session, but their failure to appear is not an obstacle to resolving the issue put before the court.

Simultaneously with the submission of an application for the restoration of the term, a procedural action must be taken (a complaint is filed, documents are submitted, etc.), in respect of which the deadline has been missed. A private complaint or a protest may be filed against a court ruling to refuse to restore the missed procedural term.

With the exception of cases on reinstatement, the judge considers cases arising from labor relations on his own. However, cases of restoration may also be considered by a single judge, if the persons participating in the case do not object to this. Collegial cases of this type are considered when any of the persons participating in the case, before the start of the consideration of the case on the merits, objects to the sole procedure for consideration.

Objections to the sole consideration of the case must be received before the start of its consideration on the merits; if they have not been received by this moment, the judge considers the reinstatement case alone.

The fact that the parties do not object to considering such cases without the participation of people's assessors, as a rule, the single judge makes a note at the beginning of the minutes of the court session, while the parties sign it. In the event that the persons participating in the case agree to its sole consideration by the judge, the petitions of the indicated persons for a collegiate consideration of the case that followed in the same court session cannot be satisfied.

If the trial of the case is adjourned, its new trial starts from the beginning, in connection with which the existence of consent and objection to the sole consideration of the case is subject to clarification again. In other words, at the beginning of each trial in cases of reinstatement at work, the employee and the employer have the right to demand a collegial consideration of the case (even the one that was considered by the judge alone in the previous court session with their consent without the participation of people's assessors).

In cases of reinstatement, as a rule, the prosecutor takes part.

When resolving a labor dispute, the court is obliged to fully and correctly clarify all the circumstances of the disputed legal relationship. At the same time, the court is not bound by the decision of the CCC on this labor dispute.

The claimant in a labor dispute has the right to withdraw the claim. The parties may end the case by amicable agreement. However, the court, accepting the plaintiff's waiver of the claim, or approving the settlement agreement, is obliged to carefully check whether the specified actions violate the employee's labor rights or the employer's interests protected by law. In particular, the court should not approve settlement agreements of the parties in cases of reinstatement if this may lead to the release of the official guilty of illegal dismissal from the obligation to compensate for losses caused to the enterprise in connection with the payment of wages to the dismissed person during the forced absenteeism.

A court decision made on a labor dispute must be lawful and justified.

If the labor dispute was considered in the CCC, the decision must indicate the results of the dispute in this body. The operative part of the judgment must contain a clear and complete answer to all the stated claims. So, having recognized the refusal to hire as illegal, the court makes a decision obliging the employer to conclude an employment contract.

In case of dismissal of an employee without a legal basis or in violation of the established procedure, the court, by its decision, reinstates the employee in his previous job. By court decision, he is paid the average earnings for the entire time of forced absenteeism from the date of dismissal. The same amount is paid for the time of forced absenteeism and in cases where the incorrect wording of the reason for dismissal in the work book prevented the employee from entering a new job.

If the reinstatement of the employee in his previous job is impossible due to the liquidation of the enterprise, in this case the court recognizes the dismissal as incorrect and indicates in the decision the reasons why the employee cannot be reinstated at work, and also collects in his favor wages for the entire time of forced absenteeism.

Decisions of district (city) courts on labor cases may be appealed in cassation by the parties and other persons participating in the case, or protested by the prosecutor within 10 days from the date of announcement of the decision.

It can be said that the distribution of competence between the CCC and the court is such that the defense individual rights employees in labor relations, in the first place, is engaged in CCC. The court is entrusted with the task of protecting the very right to work under an employment contract (contract) and consideration of other disputes after the CCC or when there is no CCC.

Judicial statistics show that the vast majority of individual labor disputes considered by the courts are resolved in favor of employees. This testifies to the effectiveness of the judicial protection of the labor rights of workers. The shortcomings in this case (especially the significantly increased time for the passage of labor disputes in the courts) impede the successful implementation by the courts of state protection of the rights and interests of citizens.

The courts not only restore violated labor rights, but at the same time identify the causes and conditions of these violations and carry out preventive work for their elimination and prevention.

Considering labor disputes, the court is guided by the norms of both labor and civil procedural law. The Court must comply with the governing rulings of the Supreme Court of the Russian Federation in labor matters. The most important of them is the resolution of the Plenum of the Supreme Court dated December 22, 1992 No. 16 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes” with its subsequent amendments and additions. It explains to the courts the uniform procedure for accepting a dispute for consideration and applying certain rules governing the admission, transfer and dismissal of employees in the consideration of a labor dispute.

In order to protect the material interests of the employee, the immediate execution of the decisions of the CCC and the court in these cases is allowed (Article 396 of the Labor Code of the Russian Federation).

The court that has made a decision to reinstate an employee who was illegally dismissed or transferred to another job, issues a ruling on paying him the average salary or the difference in earnings during the delay in the execution of the decision (Article 396 of the Labor Code of the Russian Federation).

In accordance with Art. 394 of the Labor Code of the Russian Federation, payment for the time of forced absenteeism is made for the entire time of absenteeism or the difference in earnings for the entire time of performing lower-paid work.

Enforcement of court decisions on labor disputes is carried out through a bailiff.

In accordance with the Federal Law "On Enforcement Proceedings" dated July 21, 1997, the execution of judicial acts, as well as acts of other jurisdictional bodies subject to enforcement, is assigned to Federal Service bailiffs and the bailiff service of the justice authorities of the constituent entities of the Russian Federation (Federal Law "On bailiffs" of July 21, 1997).

The court considers the requirements of the employee for reinstatement at work and payment for the time of forced absenteeism in one lawsuit. If, in the claim for reinstatement, the employee does not indicate the requirement to pay for forced absenteeism, then the court explains to the plaintiff his right to make this claim in this process.

In cases of dismissal without legal grounds or in violation of the established procedure or illegal transfer to another job, the court has the right, at the request of the employee, to make a decision on compensation to the employee for monetary compensation for moral damage caused to him by these actions.

The decision on labor cases is made by the court on the basis of a comprehensive study of all materials, testimonies of the parties, other participants in the process. It must be motivated and substantiated by precise references to legislation, other normal legal acts, collective agreement, agreement, employment contract (contract). The decision formulates the conclusion of the court on satisfaction of the claim or refusal of the claim. When satisfying the claims, the court clearly formulates what actions should be taken by the defendant in pursuance of the decision. For monetary claims, a specific amount or limit of recovery from the employee is indicated.

The court is not bound by the previous decision of the CCC to the filed dispute, although it necessarily analyzes, among other materials, the decision of the CCC. The court may go beyond the claims of the plaintiff if this follows from the grounds of the same claim (for example, to recover wages for forced absenteeism during the reinstatement of an incorrectly dismissed employee, even if the application to the court does not contain such a requirement).

In case of dismissal without legal grounds or in violation of the procedure for dismissal or illegal transfer to another job, the employee must be reinstated in his previous job.

The decision of the district (city) court may be appealed by the parties to the dispute to a higher court within 10 days. At the same time, it may be protested by the prosecutor. If there is a valid reason for missing the specified period, it may be restored by the court.

The higher court, considering the case in cassation, may uphold the decision of the people's court, change or cancel it in whole or in part. If the decision of the people's court is annulled, the higher court may refer the case to the same people's court for a new trial on the merits of the dispute. He may also terminate the proceedings or leave it without consideration.

The decision of the people's court may be set aside by way of supervision. If a court decision is canceled by way of supervision, an employee who has been paid certain amounts under this decision will not be refunded. The exception is cases where the court decision was based on forged documents or false information provided by the plaintiff. Under the same conditions, the amounts paid to the employee on the basis of the decision of the CCC are not refundable.

3.3. Enforcement of court decisions on individual labor disputes

An individual labor dispute considered in court is terminated by the execution of a court decision, i.e. the actual implementation of the instructions contained in it (the actual reinstatement of an illegally dismissed employee, the payment of the amounts awarded to the employee, etc.).

Decisions of courts on individual labor disputes are subject to mandatory execution upon their entry into legal force, except for cases of immediate execution.

The legislation provides that the decision to reinstate an employee unlawfully dismissed or transferred to another job, adopted by the labor dispute resolution body, is subject to mandatory execution. If the administration delays the execution of a court decision on the reinstatement of an employee who was illegally dismissed or transferred to another job, the court that made the decision to reinstate him at work issues a ruling on payment of his average earnings or the difference in earnings for the entire time of the delay.

In case of non-execution of the court decision voluntarily, enforcement proceedings are initiated. Its initiators can be: the plaintiff, the prosecutor, the trade union committee acting in defense of the worker. If a court decision on an individual labor dispute is not executed within the time period established by law or court, then the employee concerned has the right to file an application with the same court for non-execution of his decision and forcing the defendant to do so. When the rights and interests of an employee are violated by non-execution of a court decision, the trade union body has the right to apply to the court in his defense.

The prosecutor may take the initiative in initiating enforcement proceedings even when the interests of the state are violated by failure to comply with a court decision, public organizations, citizens.

Enforcement of court decisions on individual labor disputes is carried out through a bailiff. Upon commencement of enforcement of the judgment, the bailiff shall send the debtor a proposal for voluntary enforcement of the judgment within a period of up to five days. Such an offer is an attempt to restore violated rights without the use of coercive measures. It is handed over to the debtor against receipt on the second copy of the document attached to the enforcement proceedings. In necessary cases, simultaneously with the delivery of the proposal, the bailiff may seize the property of the debtor.

Conclusion

On the one hand, it can be seen that labor rights and obligations are enshrined in legislation and provided with legal guarantees, where justice occupies a central place. The courts have improved the quality of their decisions, which generally comply with the requirements of Art. 197 Code of Civil Procedure of the RSFSR, are motivated and clearly stated, which further strengthens the rule of law and enhances the educational role of the court. Judicial statistics show that the vast majority of individual labor disputes considered by the courts are resolved in favor of employees. This testifies to the effectiveness of the judicial protection of the labor rights of workers.

“However, along with this, some court decisions do not meet the requirements of legality and validity and do not give a sufficiently convincing answer on the merits of the dispute. Sometimes the circumstances of the case are not fully reflected in the decisions, the claims of the plaintiff, the objections of the defendant and the explanations of other persons participating in the case are not clearly formulated, the nature of the legal relations of the parties is not disclosed, there is no analysis of evidence, their assessment and legal qualification of the established facts. In a number of cases, the law that the court was guided by is not indicated, the court's conclusions do not always correspond to the circumstances of the case indicated in the decision, and its operative part is stated in such a way that it causes difficulties in execution. Thus, it can be said that the labor dispute resolution bodies, designed to quickly restore the violated right of the employee and take measures to eliminate the causes that give rise to violations of labor and social security legislation, by no means always cope with the task assigned to them. Also a problem is that some fairly typical conflict situations still remain legally unsettled, and sometimes there is a complete lack of responsibility, including legal. Irresponsibility is one of the most powerful engines of conflict escalation.

As a regulator of social relations, law usually actively manifests itself precisely when this or that conflict arises, including labor conflicts. It is during the conflict that both the effectiveness of legal norms and the ability of the state and society to actually guarantee a person the realization of his rights, including in the field of application of abilities to work, are tested.

Today Russian society gradually comes to an understanding of law as a means of reaching agreement and compromise. We are witnessing that the participants in labor relations are beginning to gradually turn towards the negotiation process. The state, with the help of law, creates a mechanism aimed at mutual consideration of the interests of the parties to labor relations. However, one cannot overestimate the role of law, which by itself is not able to solve political and economic problems. Therefore, it is extremely important to have norms in the legal system that guarantee a mechanism for considering conflicts, their fair resolution and implementation of the decisions made.

A task

The driver Nesterov was deprived of a driver's license for violating the rules traffic and drunk driving.

On this basis, the general director issued an order to transfer Nesterov to laborers. Nesterov refused to transfer, but he came to work every day, where he did nothing. A week later, he was fired from his job for absenteeism.

Decide on the legality of the CEO's actions.

Solution

Nesterov was stripped of his driver's license for violating traffic rules and driving while intoxicated. After Nesterov appeared at work without a driver's license (that is, it is obvious that he cannot fulfill his official duties as a driver), the general director had to, on the basis of Article 76 of the Labor Code of the Russian Federation, remove the employee from work (not allow him to work). Further, on the basis of Article 72 of the Labor Code of the Russian Federation, the general director was obliged in writing to offer the driver Nesterov to transfer to another permanent job available in the same organization, corresponding to his qualifications and state of health, and in the absence of such work, a vacant lower position or a lower-paid job , which the employee can perform, taking into account his qualifications and state of health (this may be the position of a handyman offered according to the condition of the task). Despite the fact that Nesterov refused the job offered to him, the employment contract with him cannot be terminated.

According to the terms of the task, the CEO committed a number of violations of the provisions of the Labor Code of the Russian Federation:

1) issued an order to transfer Nesterov to laborers without the prior consent of the employee;

2) groundlessly dismissed Nesterov from work for absenteeism.

In this connection, we can conclude that the actions of the general director in relation to the driver Nesterov were illegal.

BIBLIOGRAPHY

1. The Civil Code of the Russian Federation of January 26, 1996, parts one and two (as amended by Federal Law No. 18-FZ of February 20, 1996, No. 111-FZ of August 12, 1996, No. 138-FZ of July 8, 1999) FZ), - M .: Publishing group INFRA-M - NORMA, 1998. - 189 p.

2. Code of Civil Procedure of the RSFSR of June 11, 1964 (as amended on April 28, 1993, as amended on April 28, November 30, December 31, 1995, August 21, November 26, 1996, March 17, 1997. ) - M .: Publishing group INFRA-M - NORMA, 1998. - 256 p.

3. Commentary on the Civil Procedure Code of the RSFSR / Edited by M.K. Treushnikova / - M .: Publishing group INFRA-M - NORMA, 1996. - 478 p.

4. The Constitution of the RSFSR (adopted on December 12, 1993) - M .: INFRA-M Publishing Group - NORMA, 2000. - 248 p.

5. A.M. Kurennoy, V.I. Mironov. Practical Commentary on Labor Dispute Legislation /Academy National economy under the Government of the Russian Federation / - M .: Delo, 1997.

6. Decree of the Plenum of the Supreme Court of the Russian Federation of April 14, 1988 N 2 “On the preparation of civil cases for trial” (as amended on December 22, 1992, as amended on December 21, 1993, as amended on December 26, 1995 ., October 25, 1996).

7. Decree of the Plenum of the Supreme Court of the Russian Federation of October 31, 1995 "On some issues of the application of the Constitution of the Russian Federation by the courts in the administration of justice" - Bulletin of the Supreme Court of the Russian Federation, 1996, No. 1.

8. Decree of the Plenum of the Supreme Court of the Russian Federation No. 16 of December 22, 1992 (as amended on December 21, 1993) “On Certain Issues of the Application of Legislation by the Courts of the Russian Federation in Resolving Labor Disputes.” Collection of resolutions of the Plenums of the Supreme Courts of the USSR and the RSFSR (Russian Federation) on civil cases. - M., 1994 ..

9. Decree of the Plenum of the Supreme Court of the Russian Federation No. 3 dated April 14, 1988 (as amended by the Decree of the Plenum No. 9 dated December 26, 1995) “On the application of the norms of the Code of Civil Procedure of the RSFSR when considering cases in the court of first instance”.

10. Legal regulation labor relations / Library of the journal "Labor Law" / - M., 1997.

11. V.M. Pustozerova, A.A. Solovyov. Labor disputes, - M., 1997. - 197 p.

12. Collection of normative materials on labor law, - M., 1997. - 304 p.

13. Labor Code of the Russian Federation (dated December 30, 2001 No. 197-FZ). - St. Petersburg: Victoria plus, 2002. - 192 p.

14. Labor law / Ed. O.V. Smirnova, textbook /, - M .: Prospekt Publishing Group, 1996. - 446 p.

15. Labor law / Ed. O.V. Smirnova, textbook, ed. 3rd, revised. and additional /, - M .: Prospekt Publishing Group, 2000. - 447 p.

16. V.F. Gaponenko, F.N. Mikhailov. Labor law, - M.: UNITI, 2002. - 463 p.

17. R.N. Lygin, A.P. Tolmachev. Labor law / lecture notes /, - M .: PRIOR, 2001. - 112 p.

Features of consideration of labor disputes in the commission on labor disputes (CTC).

The Commission on Labor Disputes (CTC) is a body that resolves claims of individual labor disputes between employees and the employer. The Labor Code established new order creation of the CTC. Now the KTS is formed at the initiative of the employees and (or) the employer from an equal number of representatives of the employees and the employer. Previously, the KTS was elected only at the general meeting of employees and, therefore, the interests of employers in the KTS were not protected.

Representatives of employees in the CCC are elected by the general meeting (conference) of employees of the organization or delegated by the representative body of employees with subsequent approval at the general meeting (conference).

Representatives of the employer are appointed by the head of the organization in the KTS.

The Chairman and Secretary of the CCC are elected at the meeting of the CCC by a majority vote. The KTS of the organization has its own seal.

Organizational and technical support for the activities of the KTS is carried out by the employer.

There are two types of CTS: the CTS of the entire organization and the CTS of individual units. The latter consider labor disputes within the powers of these divisions.

The CCC considers disputes within its jurisdiction, with the exception of those that are directly considered in court or in other bodies. The issue of the jurisdiction of the dispute is considered at a meeting of the CCC, the decision can be appealed in court. A labor dispute is considered in the CCC if the employee has not settled his differences with the employer on his own or with the participation of his representative.

The employee has the right to apply to the KTS within 3 months from the day when he learned or should have learned about the violation of his right. If the specified period was missed for a good reason (for example, due to illness), it can be restored by decision of the CCC. The Commission is obliged to consider the dispute within 10 days from the date of receipt of the application. The dispute is considered with the participation of the employee or his authorized representative. Dispute consideration in absentia is possible only at the written request of the employee. If the employee or his representative fails to appear at the CCC meeting, the consideration of the dispute is postponed. If the employee or his representative does not appear for the second time without good reason, the CCC may decide to withdraw the issue from consideration. However, this does not deprive the employee of the right to file an application for consideration of a labor dispute again within the prescribed period.

The CCC has the right to summon witnesses to the meeting, to invite experts. The head of the organization, at the request of the CCC, is obliged to submit the necessary documents to it.

The new Labor Code also changed the quorum for the work of the CCC. A meeting of the CCC is considered competent if at least half of the members representing employees and at least half of the members representing the employer are present.

Proper certified copies of the CCC decision are handed over to the employee and the head of the organization within 3 days from the date of the decision. The decision taken by the CCC is final and subject to execution. The Commission cannot revise its decision, which has entered into legal force. If the CCC has not considered the labor dispute within 10 days, the employee has the right to transfer it to the court for consideration. In addition, the decision of the commission may be appealed by the employee or employer to the court within 10 days from the date of delivery of copies of the decision of the CCC. If the specified period is missed for valid reasons, the court has the right to restore it and resolve the dispute on the merits.

The employer must execute the decision of the CCC within three days after the expiration of the 10 days provided for appeal. If the employer does not voluntarily comply with the decision of the CCC, the employee has the right to apply to the commission for a certificate having the force of an executive document. This certificate is presented by the employee no later than 3 months from the date of its receipt to the bailiff for the enforcement of the decision of the CCC. If the 3-month period for contacting the bailiff is missed by the employee for a good reason, the CCC that issued the certificate, without re-solving the dispute on the merits, can restore this period by changing the date of issue of the certificate.

A certificate for the enforcement of the decision of the CCC is not issued if one of the parties to the dispute has appealed the decision of the CCC in court. The procedure and terms for the enforcement of the decision of the CCC are determined by the Federal Law "On Enforcement Proceedings" dated 21.07.1997.

Consideration of individual labor disputes in court

Since the Constitution of the Russian Federation guarantees all citizens the right to judicial protection, the court occupies a central place in the system of bodies considering labor disputes. The role of the courts is also significant because in the course of its activities, gaps in labor legislation are revealed, cases of contradiction of labor legislation with the Constitution of the Russian Federation, international acts, and thus the court influences the formation of new and changes in existing legislation in the field of regulation of social and labor relations. Claims of employees in labor disputes are presented at the location of the employer (Article 117 of the Code of Civil Procedure). If the employer is an individual, then the claim is brought to the court at the place of residence. If a legal entity acts as an employer, the claim is brought at the location of the body of the legal entity (according to paragraph 2 of article 54 of the Civil Code, the location of the legal entity is the place of its state registration). In addition, according to Art. 118 Code of Civil Procedure, jurisdiction is possible at the choice of the plaintiff:

1) claims arising from the activities of a branch of a legal entity may be brought at the location of the branch;

2) workers' claims for compensation for harm to health caused by them in the performance of their labor duties may be brought at the place of infliction of harm, as well as at the place of residence of the employee;

3) workers' claims for the restoration of violated labor rights may be brought at their place of residence;

4) employers' claims for compensation for damage caused to their property by employees may be filed at the place where the damage was caused.

When applying to the court for claims arising from labor relations, employees are exempted from paying court costs.

If the employer applies to the court, when filing a statement of claim, he pays the state fee, the amount of which is determined in accordance with the Tax legislation. Labor law sets time limits for applying to the labor court. In cases of dismissal, a statement of claim may be filed within 1 month from the date the employee was given the order to dismiss, and if the order was not served, from the date the work book was issued with a record of dismissal or from the day when the employee refused to receive the order or work book.

For other labor disputes, the term for applying to the court is 3 months from the day when the employee found out or should have found out about the violation of his right. In cases of recovery from employees of material damage caused to the employer, the latter has the right to apply to the court within 1 year from the date of discovery of the damage.

The decision of the CCC can be appealed to the court within 10 days from the date of delivery of a copy of the decision.

Deadlines missed for good reasons can be restored by the court. The specified time limits do not apply if employees go to court with claims for compensation for harm caused to their life and health, that is, employees have the right to go to court at any time. During the consideration of a labor dispute in court, the parties have the right to conclude an amicable agreement. The court cannot approve a settlement agreement if it infringes on the labor rights of employees and in other cases of violation of labor laws.

In case of illegal dismissal or illegal transfer of an employee to another job, the following decisions can be made:

1) about reinstatement at the previous job;

2) on the payment to the employee of average earnings for the entire period of forced absenteeism or the difference in earnings for the entire period of performance of lower-paid work;

3) at the request of the employee - on changing the wording of the grounds for dismissal to dismissal of one's own free will;

4) on changing the wording of the reason for dismissal, if the previous one does not comply with the law. If this wording prevented the employee from entering another job, a decision is also made to pay him the average earnings during the forced absenteeism;

5) on compensation for moral damage caused to an employee, the amount of which is determined by the court.

The decision of the court can be appealed in cassation to a higher court within 10 days. A decision that has entered into legal force may be reviewed by way of supervision on the basis of relevant protests. If the court decision is canceled by way of supervision, then the reverse recovery from the employee of the amounts paid by the court decision is allowed only in cases where it was based on false information or forged documents provided by the employee.

In addition to labor dispute commissions, individual labor disputes arising at enterprises may also be resolved in courts. The courts deal with labor disputes:

at the request of an employee, employer or a relevant trade union protecting the interests of an employee who is a member of this trade union, when they do not agree with the decision of the labor dispute commission or when the employee goes to court, bypassing the labor dispute commission;

at the request of the prosecutor, if the decision of the commission on labor disputes contradicts the legislation of the Russian Federation.

The courts consider labor disputes on applications:

employees about reinstatement at work, regardless of the grounds for termination of the employment contract, about changing the date and wording of the reason for dismissal, about transferring to another job, about payment for the time of forced absenteeism or about paying the difference in wages for the time of performing lower-paid work;

the employer on compensation by the employee for material damage caused to the organization.

Individual labor disputes are also considered directly in the courts:

about refusal to hire;

persons working under an employment contract with employers - individuals;

individuals who believe they have been discriminated against.

An application for resolving a labor dispute is filed with the court within three months from the day when the employee learned about the violation of his rights, and in cases of dismissal - within a month from the date of delivery of a copy of the dismissal order or from the date of issuance of the work book.

For the employer to apply to the court on the recovery of material damage caused to the enterprise from the employee, a period of one year is set from the date of discovery of the damage caused by the employee.

In case of missing the above deadlines for valid reasons, they can be restored by the court. When applying to the court with a claim on claims arising from labor relations, employees are exempted from paying duties and court costs.

Making decisions on disputes about dismissal and transfer to another job

In practice, very often there are labor disputes related to the dismissal of an employee. In the event of dismissal without a legal basis or in violation of the established procedure for dismissal or illegal transfer to another job, the employee must be reinstated in his previous job by the body considering the labor dispute.

When making a decision on reinstatement at work, the body considering this labor dispute at the same time decides to pay the employee the average earnings for the time of forced absenteeism or the difference in earnings for the time of performing lower-paid work.

At the request of the employee, the body considering this labor dispute may limit itself to making a decision on the recovery of the above compensation in his favor and on changing the wording of the grounds for dismissal to dismissal of his own free will.

If the wording of the reason for dismissal is recognized as incorrect or not in accordance with the current legislation, the body considering the dispute is obliged to change it and indicate in the decision the reason for dismissal in strict accordance with the wording of the current legislation and with reference to the relevant article (paragraph) of the law.

If the wording of the reason for dismissal in the work book was incorrect or not in accordance with the current legislation and prevented the employee from entering a new job, the body considering the labor dispute at the same time decides to pay him the average earnings for the entire period of forced absenteeism.

In cases of dismissal without legal grounds or in violation of the established procedure for dismissal or illegal transfer to another job, the court may, at the request of the employee, decide to compensate the employee for monetary compensation for moral damage caused to him by these actions. The amount of this compensation is determined by the court.

If the body considering an individual labor dispute recognizes the employee's monetary claims as justified, they are satisfied in full.

The concept of an individual labor dispute and the causes of their occurrence.

Bodies for consideration of individual labor disputes.

Formation of commissions on labor disputes and their competence.

The procedure, terms for applying and considering disputes to the CCC and the terms for appealing their decisions.

Consideration of individual labor disputes in courts. Terms of circulation, consideration and execution of court decisions on individual labor disputes.

Regulations and literature

1. The concept of an individual labor dispute and the reasons for their occurrence.

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

An individual labor dispute is a dispute between an employer and a person who previously had an employment relationship with this employer, as well as a person who has expressed a desire to conclude an employment contract with the employer, if the employer refuses to conclude such an agreement.

A labor dispute arises if disagreements between the employer and the employee - the subjects of labor relations - regarding the application of laws and other normative legal acts on labor, the collective agreement, the labor agreement, as well as the terms of the employment contract are not settled. Therefore, one of the parties to the employment contract appealed to the appropriate jurisdictional body (CCC or court) with a complaint.

A labor dispute is a dispute about the establishment of a new labor subjective right, for example, the right to receive a higher salary or benefits, as well as a dispute between the parties regarding the scope of their mutual rights and obligations already established in regulatory enactments and included in the labor contract thief. Sometimes the dispute is about how to interpret or apply the law, this or that article of the collective agreement or other labor agreements.

Legal relations related to a labor dispute arise on the basis of a statement received by the jurisdictional body (CCC or court) about a disagreement between the parties to an employment contract on the application of labor legislation or agreements on working conditions, as well as on issues of compensation for material damage or compensation for moral damage.

The labor dispute ends with the adoption by the court (or CCC) of the decision to recognize the subjective right or to refuse to satisfy the claim, as well as the application of sanctions and other measures to prevent further illegal actions of the employer or employee.

The procedure for considering labor disputes is a form of the process of solving an individual labor dispute established by the legislator, starting with the filing and acceptance of an application on it by a jurisdictional body and ending with the issuance and execution of a decision.

Labor relations are characterized by a constant opposition of the interests of their subjects. Disagreements between them arise about the application of labor laws; their subject is a specific fact of application, which is differently evaluated by the parties to the labor relationship, or a specific labor condition proposed for establishment by one of the subjects and rejected (in whole or in part) by the other. In such a case, disagreements may arise regarding the establishment of new or the application of existing working conditions. They develop into a labor dispute, which is resolved in the manner prescribed by law.

The subjects of labor disputes are the subjects of labor relations: the employer and the employee, whose subjective right, in his opinion, has been violated.

Labor disputes are divided into claims and non-claims, individual and collective. It is customary to refer to disputes of a claimable nature, disagreements arising in connection with the application of labor regulations and labor contracts, and to disputes of a non-claimable nature, disagreements arising in connection with a change or the establishment of new conditions that are not regulated by regulatory legal acts. and labor agreements. A labor dispute is individual, since one of its parties is a specific worker - the subject of an employment relationship.

The protection of the labor rights of subjects of labor relations is an important legal duty of the bodies, to whose competence the legislator attributed the protective function. The protection of the labor rights of workers is the means and methods established by the state by which the protection of labor rights and interests is carried out, as well as their forced restoration in case of violation and compensation to the employee in full for material damage and moral damage.

The basis for the emergence of labor disputes is the guilty failure to perform or improper performance of labor duties by one of the subjects of the labor relationship.

2. Bodies for the consideration of individual labor disputes.

Individual labor disputes are considered by labor dispute commissions and courts. Disagreements between the subjects of an employment relationship on the application by the employer of labor legislation or a labor agreement that have not been settled by the employer and the employee are resolved by the jurisdictional bodies: the CCC and the court within the limits of the rights granted to them.

The question of where a specific individual labor dispute should be resolved - in a labor dispute commission or in court, is determined in accordance with their jurisdiction.

The jurisdiction of labor disputes is the distribution of competence for resolving them between bodies endowed with the right to consider labor disputes and make legally binding decisions for their subjects. The correct definition of the jurisdiction of a particular labor dispute plays a large practical role, since the resolution of the dispute by an incompetent body has no legal force and cannot be enforced.

By jurisdiction, all labor disputes can be divided into the following:

In general, when the CCC is a mandatory primary stage, after which the dispute may go to court;

Directly in court, bypassing the KTS.

Assigning a labor dispute to one of the above groups means that other bodies are either not authorized to consider this dispute, or can consider it only after it was initially considered by the CCC.

The Constitution of the Russian Federation establishes the obligation of the state and law enforcement agencies to protect the rights of workers. Therefore, every employee, if he considers his labor rights violated, has the right to qualified legal assistance and, above all, to judicial protection. The protection of the labor rights of subjects of labor relations is the means and methods established by the state and enshrined in legal acts by which the protection of labor rights and legitimate interests provided for by legislation, agreements and labor contracts is carried out. This also includes the forced restoration of subjective labor rights by labor dispute resolution bodies and special executive bodies, as well as compensation for material damage and compensation for moral damage in the amount determined by law and other regulatory legal acts.

The protective function of labor legislation and dispute resolution bodies includes the entire set of measures to prevent, prevent and eliminate the causes that give rise to a violation of the labor rights of employees and the responsibility of the heads of the organization (disciplinary, material, administrative and criminal) for the guilty violation of labor legislation and non-compliance with decisions of jurisdictional bodies issued after the trial of a labor dispute.

If the labor dispute is individual, then its nature is established: on the application of labor legislation or on the introduction of new working conditions by agreement of the subjects of the employment contract; then it is determined from which legal relationship it (the dispute) follows.

An individual dispute about the establishment of new working conditions is not under the jurisdiction of either the CCC or the court, although it arose from an employment relationship. Disputes from legal relations closely related to employment are also outside the jurisdiction of the CCC and the court, for example, disputes about the application of employment legislation or legislation on pensions and benefits, because these relations are regulated by the law of social security.

The established procedure for considering individual labor disputes, including their jurisdiction, does not deprive the employee of the right to apply to a higher authority in the order of subordination or to the court with a complaint against the actions (inaction) of a particular head of the organization. The employee has the right to appeal against the illegal actions of the employer to other bodies, for example, to the prosecutor's office, the federal labor inspectorate and other structures that oversee and control compliance with labor laws and labor protection.

It is also necessary to take into account the effect on the territory of the Russian Federation of the Law on Justices of the Peace.

Labor disputes on the application of labor legislation and other labor regulations, collective agreements, agreements are considered by: 1) labor dispute commissions; 2) courts of general jurisdiction, as well as justices of the peace. The obligatory out-of-court procedure for the consideration and resolution of a labor dispute is established in cases specified by labor legislation and the Code of Civil Procedure.

Jurisdiction for labor disputes is an institution of civil procedural and labor law. Therefore, the procedure for considering a labor dispute depends on its nature and the subjects of the dispute, as well as on the type of legal relationship.

Determining the jurisdiction of a specific labor dispute plays a practical role, since a decision made on a dispute by an unauthorized body has no legal force and cannot be enforced.

To determine the jurisdiction of a labor dispute means to establish a jurisdictional body that is authorized to examine a specific labor dispute and make a decision on it that is binding on the parties. So, KTS is subordinate to all individual labor disputes of a claim nature, with the exception of those that can be resolved directly in court.

KTS is subordinated to: disputes about the recovery of wages and about its amount, about the application of disciplinary sanctions, etc.

The CCC of a structural subdivision, organization can only consider labor disputes within the powers of this subdivision, organization.

The procedure for considering a labor dispute is dictated by its nature. For example, a dispute over the recognition of a disciplinary sanction as illegal is resolved by the CCC, and a labor dispute over illegal dismissal for a systematic violation of labor discipline is resolved directly in court. This means that according to the content of the labor dispute, it is possible to determine its jurisdiction, namely, in which initially jurisdictional body the labor dispute should be considered - initially in the CCC, and then in court, or directly in court.

At the first stage, the labor dispute should be resolved between the subjects of the labor contract by mutual agreement of its parties. Only in the event that the disagreements between the subjects of the labor relationship have not been resolved either through their direct negotiations or with the participation of representatives of the elected trade union body, the parties to the dispute can seek the help of the jurisdictional body for the protection of the violated, in their opinion, subjective labor right . An individual labor dispute arises, which from that moment is a legal fact that gives rise to a civil procedural legal relationship to consider a labor dispute. Sometimes it replaces the labor relationship, sometimes it exists along with it.

Features in determining the jurisdiction of labor disputes are established for certain categories of workers, namely for civil servants. They are subject to labor legislation, with exceptions established by the Law on Public Service. Their disputes on issues of dismissal, transfer to another job, imposition of disciplinary sanctions may be considered by a higher body or court.

The main normative acts that determine the procedure for considering labor disputes are the Labor Code, the Code of Civil Procedure.

When considering labor disputes, jurisdictional bodies (CCC, court) apply not only the norms of labor legislation, but also the norms of civil procedural legislation (Articles 3-6, 17, 25, 39, 80, 126, 141, 197, 210, 407 of the Code of Civil Procedure ).

Of great importance for the uniform application of legislation in the consideration of individual labor disputes are the guiding resolutions of the Plenum of the Supreme Court of the Russian Federation. Yes, Post. The Plenum of the Supreme Court of the Russian Federation of December 22, 1992 No. 16 provides clarifications on the application of the rules on the hiring, transfer and dismissal of employees, as well as on the jurisdiction of labor disputes, Resolution of the Plenum of the Supreme Court of the RSFSR of December 25, 1990 No. application by the courts of legislation regulating the labor of women” Collection of Resolutions of the Plenum of the Supreme Court of the Russian Federation. 1961-1996. M., 1997. S. 100 provides the correct resolution of this category of labor disputes. There are also resolutions of the Plenum of the Armed Forces of the Russian Federation concerning the labor of youth, compensation for moral damage, etc.