Who protects the interests of workers. Features of the protection of workers' labor rights by trade unions, labor inspectorates, police and prosecutors. If your employer violates your rights

Bulletin of Nizhny Novgorod University named after. N.I. Lobachevsky, 2013, No. 6 (1), p. 310-316

PROTECTION OF LABOR RIGHTS IN THE RUSSIAN FEDERATION © 2013 I.A. Filipova

Nizhny Novgorod State University named after. N.I. Lobachevsky [email protected]

Received by the editor 10/29/2013

Persons working under an employment contract have a number of rights provided for by labor legislation Russian Federation. These rights may be protected by any means not prohibited by law. The main ways are: self-defense labor rights, protection by trade unions, protection carried out by special government bodies, and judicial protection.

Key words: workers, labor rights, trade unions, labor legislation, state labor inspection, control (supervision) in the labor sphere, judicial protection.

According to Article 45 of the Constitution of the Russian Federation in Russia it is guaranteed state protection rights and freedoms of man and citizen. Everyone has the right to protect their rights and freedoms by all means not prohibited by law. This also applies to labor rights and freedoms, in particular those provided for in Article 37 of the Constitution of the Russian Federation.

In accordance with the labor legislation of the Russian Federation, workers have significant rights in the labor sphere. These employee rights are matched by the responsibilities of employers. If the employer does not respect the rights of employees, violating them, then employees are also given the opportunity to protect their rights by all means not prohibited by law (Article 352 Labor Code RF, hereinafter referred to as the Labor Code of the Russian Federation). The purpose of protecting labor rights and freedoms is to ensure that employees exercise the rights established by law, regulation or contract.

The main methods of protecting labor rights of the Labor Code of the Russian Federation include:

Self-defense of labor rights by employees;

Protection of rights by trade unions;

State control (supervision) over compliance labor legislation;

Judicial protection.

Let's consider the first of these methods - self-defense of labor rights by employees. Self-defense of rights by the subject of law is independent active actions of workers to protect their labor rights, life and health without appealing or along with appealing to bodies for consideration of individual labor disputes or to bodies state control(supervision) over compliance with labor laws.

Self-protection measures for workers include the following:

1) refusal to perform work not provided for employment contract, by notifying the employer or immediate supervisor in writing (Article 379 of the Labor Code of the Russian Federation, as well as Article 60 of the Labor Code of the Russian Federation);

2) refusal to perform work that directly threatens the life and health of the employee, except for cases provided for by the Labor Code of the Russian Federation and other federal laws (Article 379 of the Labor Code of the Russian Federation, as well as articles 219-221 of the Labor Code of the Russian Federation);

3) refusal to perform work in other cases provided for by the Labor Code of the Russian Federation or other federal laws, including through refusal written consent to attract overtime work, work on weekends, night time, rescheduling annual leave etc. (Article 379 of the Labor Code of the Russian Federation, as well as part four of Article 72.1 of the Labor Code of the Russian Federation, articles 60.2, 96, 99, 113, 124 of the Labor Code of the Russian Federation);

4) suspension of work in case of delay in payment wages for a period of more than 15 days, subject to written notification of this to the employer (Article 142 of the Labor Code of the Russian Federation).

In fact, the Labor Code of the Russian Federation provides for only one form of self-defense for workers - refusal to perform work duties. Self-defense is possible in the event of a gross violation of the employee’s labor rights, directly specified in the Labor Code of the Russian Federation. Self-defense of labor rights must be distinguished from a strike. The first is carried out in order to protect the individual labor rights of the employee, the second is a way to resolve a collective labor dispute and is aimed at defending collective rights.

Self-defense of labor rights is exercised freely by employees. The manager or other officials of the organization cannot force an employee to perform work,

give birth to him, exert psychological pressure. It is also not allowed to subject employees who exercise the right to self-defense to disciplinary liability. Illegal actions of persons representing the interests of the employer can be appealed in court or with the state labor inspectorate.

Self-defense of rights by an employee is carried out without the participation of any bodies; actions taken by employees are not officially documented. The employer may voluntarily eliminate the violation or, without recognizing it, reject the employee’s claim. The law does not prohibit the simultaneous use of self-defense and another method of protecting labor rights.

The second way to protect labor rights is trade union protection. In accordance with the Federal Law of January 12, 1996 No. 10-FZ “On trade unions, their rights and guarantees of activity” (hereinafter referred to as the Law on Trade Unions), trade unions protect the rights and interests of trade union members on issues of individual labor and labor-related relations, and in the field of collective rights and interests - the rights and interests of workers, regardless of membership in trade unions, if they are vested with powers of representation in the prescribed manner.

In order to protect the labor rights of workers, trade unions have the right (Article 11 of the Law on Trade Unions):

a) make proposals for adoption by the relevant authorities state power laws and other regulatory legal acts relating to the social and labor sphere;

b) provide an opinion on draft regulatory legal acts affecting the social and labor rights of workers adopted by executive authorities and local governments;

c) participate in agreeing with employers on remuneration systems, tariff rates (salaries), as well as labor standards;

d) freely visit organizations and workplaces where members of the relevant trade unions work.

In addition, trade unions, as defenders of workers’ interests:

Take part in the development of state employment programs, exercise trade union control over compliance with legislation in the field of employment (Article 12 of the Law on Trade Unions);

Express a reasoned opinion on local regulations in cases provided for by law (Article 372 of the Labor Code of the Russian Federation);

Express a reasoned opinion on the possible termination of the employment contract at the initiative of the employer (Article 373 of the Labor Code of the Russian Federation);

Give consent to terminate the employment contract with an employee who is a member of a trade union at the initiative of the employer (Articles 374, 376 of the Labor Code of the Russian Federation);

Exercise trade union control over employers' compliance with labor legislation, including through the creation of their own labor inspectorates (Article 19 of the Law on Trade Unions), which can be both legal and technical (Article 370 of the Labor Code of the Russian Federation);

Addressed at the request of trade union members, other workers, as well as own initiative with statements in defense of labor rights to the bodies considering labor disputes, legal services and consultations are created (Article 23 of the Law on Trade Unions).

According to Article 370 of the Labor Code of the Russian Federation, trade unions have the right to demand the elimination of identified violations from the employer, who, in turn, is obliged to inform the trade union body within a week about the results of consideration of this requirement and the measures taken.

In the exercise of these powers, trade unions interact with government bodies for control (supervision) over compliance with labor legislation.

The third way to protect labor rights is state control (supervision) over compliance with labor laws. According to Article 353 of the Labor Code of the Russian Federation, federal state supervision compliance with labor legislation and other regulatory legal acts containing labor law norms is carried out by the federal labor inspectorate in the manner established by the Government of the Russian Federation. State control (supervision) over compliance with the requirements for the safe conduct of work in certain areas of activity is carried out by authorized federal executive authorities. Article 353.1 of the Labor Code of the Russian Federation also identifies departmental control exercised in relation to subordinate organizations by federal executive authorities, executive authorities of constituent entities of the Russian Federation and local government bodies.

In fact, state control over compliance with labor laws is carried out by a wide range of government bodies.

Firstly, this is the Ministry of Labor and social protection RF (Ministry of Labor of Russia) is a federal executive body that carries out the functions of developing and implementing

tions public policy in the field of demography, labor, standard of living and income, wages, pensions, social insurance (except for compulsory health insurance), labor conditions and safety, social partnership and labor relations, employment and unemployment, labor migration, alternative civil service, state civil service (except for issues of remuneration), social protection of the population, social services for the population. The Ministry of Labor of Russia was created on the basis of the Regulations “On the Ministry of Labor and Social Protection of the Russian Federation” (hereinafter referred to as the Regulations on the Ministry of Labor), approved by Decree of the Government of the Russian Federation of June 19, 2012 No. 610 instead of the previously existing Ministry of Health and Social Development of the Russian Federation.

It is the Russian Ministry of Labor that adopts such regulatory legal acts, as the Unified Tariff and Qualification Directory of Work and Professions of Workers; Regulations on the procedure for certification of workplaces based on working conditions; Regulations on the professional risk management system; List of jobs in which the employment of workers under the age of 18 is prohibited; Regulations on the peculiarities of investigation of industrial accidents in certain industries and organizations; Regulations on the organization public works; Counting and confirmation rules insurance period to determine the amount of benefits for temporary disability. In addition, the Russian Ministry of Labor summarizes the practice of applying legislation and analyzes the implementation of state policy in this area of ​​activity.

At the level of a subject of the Russian Federation, the executive authorities regulating relations in the sphere of labor are the relevant ministries (departments, departments), for example: the Ministry of Labor, Employment and Social Protection of the Republic of Tatarstan, the Ministry of Social Protection of the Population and Labor of the Republic of Mari El, the Department of Labor and Employment Administration of the Krasnodar Territory, Department of Labor and Employment of the City of Moscow, Ministry of Employment, Labor and Migration Saratov region etc.

IN Nizhny Novgorod region public administration Occupational safety and health is implemented by the Ministry of Social Policy of the Nizhny Novgorod Region. Its task is to implement a unified effective state policy of the Nizhny Novgorod region in the field of social support, labor relations and employment of citizens in the region, protection of the constitution

constitutional rights of citizens of the Nizhny Novgorod region in the field of labor relations and employment, development of a system of social partnership and contractual regulation of social and labor relations.

Thus, among the acts adopted by the Ministry of Social Policy of the Nizhny Novgorod Region, there is Order No. 134 dated February 14, 2012 “On approval of Recommendations for organizing certification of workplaces for working conditions in the Nizhny Novgorod Region.”

The Administration is also a public authority civil service employment of the population of the Nizhny Novgorod region (today, employment issues in general have been transferred to the level of constituent entities of the Russian Federation). The goals of its activities: promoting employment,

unemployment protection. Subordinate to him are the state institutions “Employment Centers” of districts and cities of the Nizhny Novgorod region.

Municipal control can also be divided into a special section. At the municipal level, the body charged with monitoring compliance with labor legislation is the labor department (administration), for example: the Department of Labor and Public Relations of the Nizhny Novgorod Administration. According to the Decree of the city administration dated April 29, 2011 No. 1746, the Department carries out the following functions: analyzes situations and trends in the development of processes in the social and labor sphere of the city, determines ways to eliminate the imbalances that have arisen in their development, prepares proposals for the City Duma of Nizhny Novgorod for improvement municipal legal acts in the social and labor sphere, ensures the interaction of district labor departments with the state labor inspectorate, employment service bodies, territorial bodies of the service for the settlement of collective labor disputes, regional migration service, trade unions, with insurance funds and companies, regional labor authorities, creates databases on industrial injuries in the city.

In the districts of Nizhny Novgorod, the corresponding labor department (sector) functions within the structure of district administrations. An example would be the department of social and labor relations in the administration of the Sovetsky district or the sector of social and labor relations in the Prioksky, Moskovsky, Avtozavodsky, Kanavinsky, Leninsky, Sormovsky districts, the department of economics, labor, and investment in the Nizhny Novgorod region.

Let's return to government control. According to the Regulations on the Ministry of Labor, the Ministry of Labor of Russia coordinates and controls the activities of the Federal Service for Labor and Employment under its jurisdiction, manages and controls the activities of subordinate federal government institutions, including federal institutions for medical and social examination, federal state unitary enterprises, as well as coordination of activities Pension Fund of the Russian Federation and the Social Insurance Fund of the Russian Federation.

Federal service for labor and employment (Rostrud) is federal body executive power, exercising control and supervision functions in the field of labor, employment and alternative civil service, to provide public services in the field of promoting employment and protection from unemployment, labor migration and settlement of collective labor disputes.

The Federal Service for Labor and Employment exercises state supervision and control:

Monitoring employers' compliance with labor legislation through inspections, issuing mandatory orders to eliminate violations, drawing up protocols on administrative offenses on bringing to responsibility in accordance with the legislation of the Russian Federation and the established procedure for investigating and recording industrial accidents;

Over the implementation by the authorities of the constituent entities of the Russian Federation of social payments to citizens recognized as unemployed in the prescribed manner;

For citizens to perform alternative civil service.

Rostrud registers:

Industry (inter-industry) agreements concluded at the federal level of social partnership;

Collective labor disputes regarding the conclusion and implementation of agreements concluded at the federal level, collective labor disputes in organizations financed from the federal budget.

Rostrud also organizes the training of labor arbitrators, state examination of working conditions, maintaining registers of recipients of public services in the field of employment, etc.

The territorial divisions of Ros-Labor are state labor inspectorates in the constituent entities of the Russian Federation, for example, the State

labor inspectorate in the Nizhny Novgorod region. This body systematically conducts inspections of working conditions of employers in the Nizhny Novgorod region.

For example, in 2012, 1,626 inspections were carried out (989 by state legal inspectors; 637 by state labor protection inspectors). 7,365 violations were identified, of which: on labor protection issues - 5,089, on legal issues - 2,276. 1,130 orders were issued to eliminate the identified violations, 2,291 administrative fines were imposed for a total amount of 9 million 877 thousand 500 rubles. 742 employees were suspended from work at the request of state labor inspectors due to failure to complete training, instruction, internship and testing of occupational safety knowledge in the prescribed manner. The use of personal and personal care products without certificates of conformity has been stopped. collective defense workers - 552 units, 3 protocols on a temporary ban on the operation of equipment were drawn up and sent to the courts.

The main violations identified during the inspections include the following:

1) heads of organizations are not trained and certified in labor protection;

2) work on certification of workplaces according to working conditions is not carried out;

3) lists of professions and types of work for which additional labor safety requirements are imposed and labor safety training is required are not available at enterprises (not developed);

4) timely revision of labor protection instructions is not ensured; there are no labor protection instructions for a number of professions and types of work;

5) periodic medical examinations of employees are not carried out;

6) untrained workers are allowed to perform work or operate high-risk equipment;

7) workers are not provided or are not fully provided with special clothing, safety footwear and other equipment personal protection;

8) there is no periodic training in first aid for blue-collar workers.

At the same time, according to investigation materials, the greatest number of fatal injuries is observed in manufacturing industries and construction. Most often, accidents occur as a result of a victim falling from a height; falls, collapses, collapses of objects

goods, materials, land; exposure to moving, flying, rotating objects, machine parts; transport accidents. The causes of accidents with serious consequences are usually unsatisfactory organization of work, violation of labor regulations by the employee and disruption of the technological process.

Inspection of employers is the main form of supervisory and control activities of the state labor inspectorate. The basis for inspection is instructions from the heads of Rostrud and the Department for Supervision and Control of Compliance with Labor Legislation (a structural unit of the Ministry of Labor of Russia), information from other government bodies and appeals from citizens. Work is also underway to review decisions of the prosecutor's office to initiate cases of administrative offense. Sometimes inspections are carried out jointly with the prosecutor's office.

On September 1, 2013, the first five-year stage of certification of workplaces for working conditions will end, which all enterprises in the Russian Federation are required to report on. According to the management of Rost-ruda, most employers will not pass it, since from September 2008 to December 2012 only 1.3% of enterprises were certified. Sanctions for those who fail the inspection - up to the suspension of the activities of the business entity. The certification must be recorded in the collective agreement. However, amendments made to the legislation on certification of workplaces by Order of the Ministry of Labor and Social Protection of the Russian Federation dated December 12, 2012 No. 590n, establish the obligation to carry out certification not for all workplaces, but only for potentially highly dangerous ones (related to the operation of machines, mechanisms, etc.). use of harmful materials, etc.). At the same time, according to the director of the Department of Labor Conditions and Safety of the Ministry of Labor of Russia, primary certification remains mandatory for everyone.

According to the currently available certification results, the quality of workplaces is very low: more than 60% of workplaces can be classified as harmful or dangerous.

In addition to Rostrud, labor control (supervision) bodies include the Federal Service for Environmental, Technological and Nuclear Supervision (Rostechnadzor) and the Federal Service for Supervision of Consumer Rights Protection and Human Welfare (Rospotrebnadzor).

Rostechnadzor is the state regulatory body for safety in the use of atomic energy; authorized body in the region industrial safety; state mining supervision body; state energy supervision body; state construction supervision body.

Territorial divisions of Rostechnadzor are not located in every subject of the Russian Federation. For example, the Volga region department of Rostechnadzor covers the republics of Tatarstan, Mari El and Chuvashia. Also, the competence of the Volzhsko-Oka department of Rostechnadzor, based on the territory of Nizhny Novgorod (with territorial departments: Vyksa, Sarov, Dzerzhinsky, Kstov and Arzamas).

Rospotrebnadzor, which includes a department for organizing sanitary supervision of occupational hygiene and municipal hygiene, inspects the activities of employers to comply with the requirements of sanitary legislation, suppresses violations of the law, applies restrictive, precautionary and prophylactic measures aimed at preventing or eliminating the consequences of violation by employers of mandatory requirements in a certain field of activity.

There are territorial departments at the level of constituent entities of the Russian Federation, and departments of Rospotrebnadzor departments at the level of cities and districts.

The state bodies for control (supervision) over compliance with labor legislation also include the prosecutor's office. According to Article 27 of the Federal Law of January 17, 1992 No. 2202-1 “On the Prosecutor's Office of the Russian Federation”, the prosecutor: checks complaints and other reports of violations of human and civil rights and freedoms; explains to victims the procedure for protecting their rights and freedoms; takes measures to prevent and suppress violations of human and civil rights and freedoms, bring to justice those who violated the law, and compensate for the damage caused.

The prosecutor's office performs:

1) prosecutor's checks implementation of legislation on labor protection at enterprises located in the supervised territory;

2) requests for the allocation of specialists to the Rospotrebnadzor department and the state labor inspectorate in a constituent entity of the Russian Federation to participate in joint inspections;

3) analysis of incoming complaints on labor issues.

The result of inspections may be the identification of violations and the subsequent submission of proposals to eliminate violations of labor legislation, the issuance of a resolution to initiate a case of an administrative offense, the filing of a statement of claim for the obligation to conduct certification of workplaces. The latter is possible in connection with the right of the prosecutor to apply to the court for the protection of violated or disputed social rights, freedoms and legitimate interests in the field of labor (official) relations and other relations directly related to them in accordance with Article 45 of the Civil Procedure Code of the Russian Federation.

A significant number of appeals to the prosecutor's office concern employers' arrears in paying wages. Based on the results of interaction with statistical authorities, the bailiff service, the tax service, the bodies of the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the prosecutor's office identifies employers who violate the right of employees to timely and full payment of wages.

Internal control over compliance with labor legislation should also be carried out by the relevant ministries, both at the federal level and at the level of constituent entities of the Russian Federation.

The fourth of the methods of protecting labor rights named in Article 352 of the Labor Code of the Russian Federation is judicial. As judicial practice shows, a significant part of labor disputes considered by the courts are related to non-payment of wages, illegal dismissal or transfer to another job. The employer often violates the procedure for dismissal, staff reduction, or transfer to another job, which entails the recognition of such actions as illegal and the restoration of the labor rights of citizens.

According to the provisions of Article 392 of the Labor Code of the Russian Federation, an employee has the right to apply to a district (city) court for resolution of a labor dispute within three months from the day when he learned or should have learned about a violation of his right, and in disputes about dismissal - within one month from the day of delivery of a copy of the dismissal order to him or the day of issue of the work book. It is necessary to pay special attention to the last provision: the employee must be issued a work book or at least given a copy of the dismissal order (or the employee’s refusal to receive the order and work book is recorded in writing, as specified

is stated in paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”). In the absence of this fact, according to the Ruling of the Supreme Court of the Russian Federation dated May 14, 2010 in case No. 45-B10-7, the period for filing a lawsuit in disputes over dismissal cannot expire, since the law does not say that the period is calculated from the day when the employee learned of his dismissal. The period for filing a claim for reinstatement in court begins from the moment the employer duly formalizes the termination of the employment contract with the employee. In the case when to issue work book is impossible for the employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for a work book or agree to send it by mail. Moreover, according to the Determination of the Judicial Board on civil cases Moscow City Court dated March 10, 2011 on a cassation appeal against the decision of the district court in case No. 33-6015, sending a notice is not enough to begin the period. According to the Judicial Collegium, the court of first instance, dismissing the claim on the grounds of missing a deadline, unreasonably considered that the beginning of the period was calculated from the moment the employee was notified of the need to appear for a work book in connection with the termination of a fixed-term employment contract. However, the court cassation instance indicated that the dismissal order was not sent to the plaintiff’s home address, and therefore she could not know the specific date of dismissal, but only found out when she received the work book.

In addition to the four methods of protecting the labor rights of workers indicated as the main ones in Article 352 of the Labor Code of the Russian Federation, we can also highlight the fifth and sixth, which logically follow from the norms of the Labor Code of the Russian Federation. Fifth, in this case, will be protection through the relevant public body (if there is one):

the Commission for the Regulation of Social and Labor Relations, which is designed, among other things, to monitor the implementation of collective contracts and agreements;

the Labor Dispute Commission, to which an employee has the right to apply to protect his rights (LCS);

Labor arbitration, to which workers and employers can apply in the process of resolving a collective labor dispute.

As a sixth possible method of protection, we can highlight the protection of workers’ rights by labor collectives. They are the ones who are especially

especially in the absence of a primary trade union organization at the enterprise, they defend the collective rights of workers, for example:

Right to conclusion collective agreement(initiation, participation in the formation of a commission for project development, etc., parts 4 and 5 of Article 37 of the Labor Code of the Russian Federation);

The right to put forward demands in defense of collective labor rights (Article 399 of the Labor Code of the Russian Federation);

The right to strike (making a decision to go on strike general meeting(conference) of workers, article 410 of the Labor Code of the Russian Federation).

Finally, the seventh method, which appeared relatively recently, is mediation. According to Part 1 of Article 1 of the Federal Law of July 27, 2010 No. 193-FZ “On an alternative procedure for resolving disputes with the participation of a mediator (mediation procedure),” mediation as a method of resolving disputes arising, including from labor and family legal relations, is intended to promote “harmonization social relations» .

Thus, Russian legislation employees are provided with significant guarantees for the protection of labor rights. Unfortunately, at present, a significant number of workers simply do not have sufficient knowledge about them and the ability to use them. And here the need for targeted educational activities comes first, both on the part of state bodies for control (supervision) over compliance with labor legislation, and on the part of trade unions.

References

1. Labor Code of the Russian Federation of December 30, 2001 No. 197-FZ // Collection of legislation of the Russian Federation. 01/07/2002. No. 1.

2. Federal Law of January 12, 1996 No. 10-FZ “On trade unions, their rights and guarantees of activity” // Collection of legislation of the Russian Federation. 01/15/1996. No. 3. Art. 148.

3. Decree of the Government of the Russian Federation of June 19, 2012 No. 610 “On approval of the Regulations on the Ministry of Labor and Social Protection of the Russian Federation” //

Internet portal of the Government of the Russian Federation. Executive branch. URL: И1р://government.rf/

power/237/base.html (date of access: 04/15/2013).

4. Order of the Ministry of Social Policy of the Nizhny Novgorod Region dated February 14, 2012 No. 134 “On approval of Recommendations for organizing certification of workplaces for working conditions in the Nizhny Novgorod Region” // Government of the Nizhny Novgorod Region. Official website. URL: http://www.govemment-nnov.m/?id=48970 (access date: 04/15/2013).

5. Resolution of the administration of the city of Nizhny Novgorod dated April 29, 2011 No. 1746 “On approval of the Regulations on the Department of Labor and Work with the Population of the Administration of the City of Nizhny Novgorod” // Official city portal. Nizhny Novgorod. URL: http://nizhnynovgorod.rf/vlast/administratesiyagoroda/deps/uprtrud/polozhenie/ (date of access: 04/15/2013).

6. Results of supervisory activities of the State

State Labor Inspectorate in the Nizhny Novgorod Region for the 1st quarter of 2012 // State Labor Inspectorate in the Nizhny Novgorod Region. Official website. URL: // http://git52.rostrud.ru/results/

5115/17979^^^ (date of access: 04/15/2013).

7. Interview with the head of Rostrud Yu.V. Germany December 25, 2012 // Federal Service for Labor and Employment. Official website. URL: http://www.rostrud.ru/presscentre/48/xPages/entry.3395. Ysh1 (date of access: 04/15/2013).

8. The Russian Ministry of Labor has defined a flexible approach to the procedure for certifying workplaces based on working conditions on February 4, 2013 // Ministry of Labor and Social Protection of the Russian Federation. Official website. URL: http://www.rosmintrud.ru/labour/safety/102 (access date: 04/15/2013).

9. Federal Law of January 17, 1992 No. 22024 “On the Prosecutor's Office of the Russian Federation” // Gazette of the Congress of People's Deputies of the Russian Federation and the Supreme Council of the Russian Federation of February 20, 1992 No. 8. Art. 366.

10. Resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” // Bulletin of the Supreme Court of the Russian Federation. 2004. No. 6.

11. All about the Labor Code. Judicial practice. URL: http://www. trudovoikodeks.ru/praktika_392.shtml (date of access: 04/15/2013).

12. Federal Law of July 27, 2010 No. 193-FZ “On an alternative procedure for resolving disputes with the participation of a mediator (mediation procedure)” // Collection of legislation of the Russian Federation. 08/02/2010. No. 31. Art. 4162.

PROTECTION OF LABOR RIGHTS IN THE RUSSIAN FEDERATION

Workers have some rights under labor law of the Russian Federation. These rights can be protected by any means not prohibited by law. The main methods include: self-protection of labor rights, protection by the trade unions, protection carried out by special government agencies, and judicial protection.

Keywords: workers, labor rights, trade unions, labor laws, state labor inspection, monitoring (supervision) at work, judicial protection.

Workers' rights are found in legislation that relates to the world of work. Their implementation and protection are an integral part of the working relationship between management and employees. This article will discuss how workers' rights are protected.

Employee rights

A company employee has the following rights:

• the worker has the opportunity to enter into, change and terminate employment relationships;
• the employee has the opportunity to perform the work specified in the employment contract;
• The employee’s place must meet all labor safety standards;
• the employee has the opportunity to receive wages without delay. It must correspond to the level of his qualifications and the work done;
• has the opportunity to rest;
• has the right to receive comprehensive information about working conditions;
• has the opportunity to undergo additional training and improve their qualifications;
• has the opportunity to unite in trade unions to protect their interests;
• can participate in organizational management;
• can participate in negotiations and conclude collective agreements;
• has the right to defend their interests, freedoms, rights;
• can resolve labor disputes, both individual and collective;
• may demand compensation for damage caused to him at work, including moral damage;
• has the right to compulsory insurance.

Common violations of employee rights

It is rare to find a company where absolutely all workers' rights are respected. Often they are violated even without malicious intent, when an employee, for example, stays late at work without pay or does work that is not his job so that his superiors notice him. In Western countries, they monitor more closely the rights of ordinary workers. A common situation that dishonest employers take advantage of is that the employee does not know his rights.

In Russia The most common examples of non-compliance with workers' rights are in the following areas:

• the procedure for concluding an employment contract, as well as its termination or modification;
• payment for the work process;
• labor protection;
• rest and work schedule;
• violation of the provision of compensation and guarantees;
• imposition of penalties.

Regarding the employment contract

Getting a job begins with the execution of an agreement between the employee and management. According to information provided by the State Labor Inspectorate, the following violations were identified:

• lack of a written agreement;
• no contract prerequisites labor;
• when applying for a job, the person was not introduced to the company’s labor regulations, the collective agreement, as well as other acts of the state that are related to his direct activities;
• the order for employment was not issued, or was issued in violation of the deadlines;
• minors were not examined by doctors before going to work;
• the work book is stored in violation of storage rules;
• the period during which the employee is required to be notified of all changes in the employment contract has been violated;
• appointment probationary period categories of citizens to whom it should not be assigned;
• concluding a civil law contract instead of a labor contract.

Such non-compliance is usually discovered during an inspection or when an employee makes a complaint. The prosecutor's office can also conduct an investigation.

Admission to certain positions must be supported by a certificate confirming that the person has no criminal record, or, for example, the presence driver's license. The absence of these documents when applying for a device is a violation.

During the payment process

Such violations occur quite often. The inspection classifies several types of them:

• wages are paid once a month;
• payments occur with delays;
• upon dismissal, no money is paid.

By law, salaries must be given to employees twice a month. Some unscrupulous employers pay money as they please. They use the “black method” of payment. Upon dismissal, there is no settlement with the employee.

Related to labor protection

The area of ​​labor protection for employees has many violations. The management does not comply with the requirements regarding workplace certification. It must be carried out at least once every five years for each employee’s position. When accidents occur at work, management neglects the following points:

• management does not inform the competent authorities that the employee has received serious injuries;
• lack of a commission to investigate injuries and the occurrence of an accident;
• lack of documents related to the accident.

In the field of leisure and work hours

Most often, when checking by the inspectorate, the following violations related to rest and work hours are revealed:

• too long working hours and short rest;
• not providing vacations;
• violation of working hours for individual categories citizens.

Applications of penalties

The inspectorate draws attention to such violations as the unreasonable application of penalties to an employee. This also includes the lack of a written explanation from the employee and the failure to draw up a report.

General procedure for asserting workers' rights

Workers' rights include protection in several aspects:

• the causes of the violation are eliminated;
• the employee’s rights that were violated are restored;
• compensation occurs.

A worker can protect his rights in any legal way, in any form. For protection, he can go to court, to trade union bodies or to bodies exercising control and supervision. He can also independently protect his interests.

Methods of protection

There are several ways to protect violated worker rights.

Self-defense

Independent protection of rights is human actions aimed at protecting and protecting one’s rights. It is carried out by contacting the authorities that supervise and control the labor sphere. The method of self-defense is the Labor Code. Self-defense methods:

• the worker may not perform a work process that is not provided for in the employment contract;
• an employee may refuse to perform work that poses a danger to him;
• a worker may stop performing his functions if funds are not paid on time.

Self-defense is not formalized and does not entail involvement from government agencies. When exercising his right to self-defense, a worker cannot be brought to disciplinary liability. In addition to such protection, you can resort to other methods.

Judicial

To restore his violated rights, a worker may resort to judicial authorities. This method protection is considered the most effective. The judge's decision must be strictly observed. Deadline for going to court: within three months after the violation of the right, and after dismissal - one month. In addition to the court, a worker can appeal to other bodies, for example, to the commission for resolving labor disputes.

A court decision in favor of the worker occurs very often, so you should not think that the court will be on the side of the company management.

Trade unions

Associations of workers, called trade unions, help the worker in observing his interests and rights. Regardless of whether the employee is a member of a trade union or not, in protecting collective rights, the trade union provides its assistance. Trade unions have their own rights and opportunities:

• they may propose the adoption of regulations and laws that relate to the social sphere of labor legislation;
• they can express their opinion on the draft acts;
• they have the right to take part in resolving issues related to remuneration;
• may be present at the workplaces of their members;
• can take part in the development of employment programs;
• have the right to control the sphere of employment;
• can evaluate the actions of management upon dismissal;
• can monitor compliance with laws.

Trade unions to protect the rights of their members, can apply to government agencies that oversee the world of work. They can demand that management respect the rights of their employees, as well as eliminate violations. Within seven days after receiving a request from the union, management must report to it on eliminating non-compliance.

State supervision over the observance of rights

State supervision over the observance of workers' rights at all enterprises carried out by federal inspection bodies. He is also involved in supervision Prosecutor General, and prosecutor's offices of the constituent entities.

The Federal Labor Inspectorate carries out the following tasks:

• ensures the observance and protection of the rights and freedoms of citizens in the sphere of labor;
• ensures compliance with labor laws and other acts;
• informs management and workers about the means of complying with labor laws;
• informs other state bodies about facts of violation.

Monitoring the world of work is carried out by inspection staff called labor inspectors. After an inspection at the enterprise, they send instructions to management that must be followed. no later than ten days after receipt.

The inspector carries out inspections regularly. He can report a future inspection at his own discretion.

Workers' rights are the basis of the relationship between management and employee. Respect and protection of their rights must be in accordance with the laws of the Russian Federation. Failure to comply or violation of rights may result in prosecution. Any employee who believes that his rights have been violated can defend himself either independently or by contacting the authorized authorities. They will help him understand the causes of the violation and help eliminate them. The decisions of such bodies must be strictly observed, but they can also be appealed through the courts.

This video contains important information on labor law regarding the labor rights of employees. Information provided by a legal practitioner.

Unfortunately, not every employer can boast of precise and unquestioning compliance with the norms of the Labor Code of the Russian Federation. It is not uncommon for violations to occur in the area of ​​labor relations, as a result of which workers are forced to seek help. allows this to be done in all ways not prohibited by law.

What should an employee do if his rights are violated?

When the legitimate interests of a worker are violated, action must be taken. Current legislation provides the employee with freedom to choose the means and methods to receive assistance. You can resolve the dispute yourself, alone, or you can turn to various authorities and authorities for help to resolve your issue. To restore justice, all options are good.

The main thing is not to be inactive, since inaction gives rise to impunity illegal actions employer and provides him with further opportunity to commit violations.

What is the name of the service for the protection of labor rights?

The main protection body is the State Labor Inspectorate. The inspectorate resolves disputes that arise between an employee and an employer. In order to contact the service for protecting the labor interests of employees, it is necessary to submit a complaint in writing, outlining the detailed essence of the issue.

The State Labor Inspectorate reviews absolutely all applications without fail, provides answers, and if a violation is detected, appropriate measures are taken against the employer in the form of sanctions.

Main ways to protect the rights of workers

The forms of protecting the labor interests of workers are varied.

There are several main ways:

• Self-defense when an employee acts alone;
• Contacting a trade union;
• Appeal to a higher authority;
• Contacting the State Labor Inspectorate;
• Appeal to the labor dispute commission;
• Contacting the prosecutor's office;
• Appeal to judicial authorities.

State control implies the implementation of systematic inspections of the personnel activities of organizations by the inspectorate to identify violations.

As for the form of presentation of the complaint, it is mainly written. In self-defense, it is possible to make an oral statement or put forward demands by the employee to the employer. When sending documents to various authorities, the complaint must be made in writing.

The procedure for protecting the rights of workers under the Labor Code of the Russian Federation

The Labor Code of the Russian Federation determines the procedure for protection. First of all, the deadlines for submitting applications must be met. They are regulated by Article 392 of the Law. Total term– 3 months from the date of commission of illegal actions.

If the issue is related to dismissal, then the application must be written within a month from the moment you receive the work book. If damage is caused to an employee by the employer, the filing period is one year. It should be noted that if the employee did not have time to defend his rights within the specified time frame due to valid reasons, illness, forced change of residence, business trip, etc., then he can apply later than the established time.

As a rule, rights are first defended at the local level - the worker makes verbal demands to his manager. He may also submit a written application, which must be considered within thirty days.

If all the measures taken at the local level did not bring the desired result, and violations against you could not be avoided, it is advisable to contact government authorities for help.

Protecting the rights of workers - self-defense

The most peaceful way to avoid violation of an employee’s rights is through self-defense. To know your labor rights, you need to be familiar with the articles of the Labor Code of the Russian Federation. It is a visual aid on how to do it and what not to do.

As soon as the employee becomes aware of the fact of a violation, it is necessary to take action. First, you need to try to verbally discuss the problem that has arisen with your manager and find a compromise. If it was not possible to agree verbally, then you should send a written request to the organization, which sets out in detail the essence of the issue. It is better to send the appeal by registered mail with a notification attached to be sure that it is delivered to the recipient.

According to the law, a response must be made within a month. If the problem is not resolved, the next step is to contact the organization’s trade union body, and then to state authorities for the protection of labor rights.

Judicial protection of the rights of workers - law

The Labor Code of the Russian Federation provides for judicial protection as a way to protect the labor rights of workers.

Typically, an employee goes to court when all other methods fail. In order to restore justice, a citizen brings a claim to court. It is very important to comply with the application deadline provided for by the Labor Code of the Russian Federation.

Subjects of the employee's claim according to the data judicial practice are:

• Causing harm to a worker;
• Unlawful dismissal;
• Non-payment of wages;
• Violation of the procedure for granting leave;
• Industrial injuries;
• Failure to pay proper benefits and compensation upon dismissal;
• Other questions.

Most often, if a violation occurs, the employee restores his legitimate interests and also receives compensation from the organization for the harm and losses caused.

No employer can be immune from conflicts with their employees. After all, claims may arise from both working employees and previously dismissed employees. It's great if situations like this resolve themselves, but what if they don't?

In this article you will read:

• How is the protection of workers' rights explained from a legal point of view?
• What forms and methods exist for workers to protect their rights?
• Why are trade unions needed?
• Who controls and protects the rights of workers at the state level
• How can an employee defend his rights in court?
• What mistakes should employers avoid?

One of the foundations of the Labor Code of the Russian Federation is protection of workers' rights. Our legislation provides for various options for protecting workers’ rights, which will be discussed further.

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How the protection of workers' rights is regulated by law

According to ILO conventions, workers are the most vulnerable in the labor relations process. The protection of workers' rights from employers is supported by the state.

Article No. 37 of the Constitution of the Russian Federation is called upon to protect their rights, which provides for the possibility of citizens holding labor disputes individually or on a collective basis, using methods not prohibited by law, including strikes.

The best traditions of the Labor Code are supported by Section 13 of the Labor Code, which contains comprehensive information on the protection of workers’ labor rights.

The concept of protecting the labor rights of workers has 2 aspects:

Protection of workers' labor rights in the narrow sense is intended to help maintain, protect and protect workers' labor rights from violations, restore them in case of illegal violation, and also impose real responsibility on employers (their representatives) for failure to comply with labor laws. All this is reflected in section 13 of the Labor Code of the Russian Federation.

In a broad sense, the protection of workers’ labor rights must be understood as the implementation of the protective function of labor law, reflected in the function of state protection. The broad meaning of this concept also includes its definition in a narrow aspect. In addition, it reflects the following main ways to protect the labor rights of an employee:

1) Based on the relevant legislative framework at the federal level, securing a high level of working conditions and guarantees of the main labor rights of workers, in conjunction with their addition, improvement and development based on the labor legislation of the regions, as well as their reflection in labor agreements and collective bargaining agreements.

2) The irreducible development of democracy in production - with the participation of the employee himself or his representatives, such as trade unions, etc. This will allow hired employees to take a direct part in the preparation of internal labor regulations and insist on mandatory imprisonment collective agreements at the enterprise, without relying solely on the employer’s decision.

3) Extensive promotion of labor laws among workers through the media, various lectures, etc. Studying it basic principles employers (their representatives represented by administrations) in the process of demonstrating methods effective protection from violation of labor rights. Conducting training for employees on the culture of fighting for their rights.

Labor disputes and protection of workers' rights are considered and ensured by jurisdictional authorities, including in the courts.

According to legislative norms, three groups are defined, including special means and basic methods of protecting the rights of workers:

The first group allows you to agree on (certify) protected labor law or lead to the end (changes) of work duties.

The second group includes means and methods of protecting employee rights that help prevent/suppress labor violations.

The third group represents means and methods of protecting the labor rights of workers, helping to restore violated rights and (or) compensate for costs incurred due to violation of subjective labor rights.

The form of protection of workers' labor rights reflects the differences in the subjects of protection of workers' labor rights. This protection can be organized independently by the person whose rights were violated, or specialized. In accordance with this, a distinction is made between jurisdictional and non-jurisdictional forms of protection of labor rights of workers.

The jurisdictional form means that an employee whose labor rights are at risk or have been violated has recourse to the assistance of authorized bodies that take certain measures within the framework of the law to protect labor rights. According to this form, the protection of workers’ labor rights can be judicial, administrative and public.

The non-jurisdictional form includes independent protection by the employee of his labor rights (or his authorized representative).

The scope of this form of protection of workers’ rights includes workers’ self-defense of their rights and human rights activities trade unions and similar organizations.

Article 352 of the Labor Code of the Russian Federation defines the following methods of protecting labor rights and freedoms:

• protection by employees of their labor rights on an independent basis;
• trade union protection of the rights and interests of workers;
• state supervision and control of implementation of labor legislation, as well as other regulations;
• judicial protection of employee labor rights.

Trade unions in small and medium-sized businesses are rare

Mikhail Tarasenko, Chairman of the Mining and Metallurgical Trade Union of Russia, Moscow.

Trade unions are a natural component of any democratic state. They are designed to solve problems of protecting employee rights. But in small and medium-sized businesses (including in production), trade unions are still rare, especially in new, small firms (unlike large companies, for example, metallurgical plants, where more than 80% of employees belong to trade unions).

Basically, trade unions cooperate with the employer or his representatives in the form of social partnerships. It is easier to negotiate with the owner of an enterprise when he is its actual manager. Difficulties arise with a vertically integrated business structure.

Often, when market conditions are unstable, employers deliberately “underestimate” their capabilities during negotiations. In such cases, we make economic arguments (based on the study of the real economy) and exercise our right to collective disputes on issues of labor organization. So far, things have not come to the point of actual strikes, but the preconditions have been there more than once. We managed to come to an agreement with the employers: VIZ-Stal LLC, Evrazholding Trade House, Mechel Group, Rusal.

How workers' rights are protected by trade union organizations

Federal Law on Trade Unions No. 10 of January 12, 1996 states: they have the right to monitor compliance by employers with labor law at enterprises where members of this trade union work, to insist on avoiding violations on the following issues:

• employment contracts;
• time for work and rest;
• wages;
• guarantees, various benefits and compensations;
• other social and labor issues.

In addition, the protection of workers' rights by trade unions implies that the employer (official), upon receiving a demand from the trade union regarding the elimination of certain violations, is obliged to notify the trade union committee within 7 days about the work done and the implementation of specific measures. This is provided for in Article 370 of the Labor Code of the Russian Federation.

In order to ensure the most effective protection of the labor rights of workers by trade unions, the latter (as well as their associations on the territory of the Russian Federation) can organize their own labor inspectorates and vest them with appropriate powers.

Trade union labor inspectors have the right:

• to monitor the implementation of laws (on labor, trade unions) and the conditions contained in collective agreements, easily visit organizations of various forms of ownership and individual employers where members of trade unions (their associations) work;
• realize independent examination safe working conditions for workers;
• help investigate industrial accidents and occupational diseases;
• be informed by the management of enterprises (other officials, IP) about the current situation on labor protection and accidents that have occurred during the production process, occupational diseases;
• to help ensure that the protection of the labor rights of employers' employees makes it possible to resolve issues of compensation for damage to the health of the injured party in the process of work without any particular problems;
• require employers to stop the work process when there is a real threat to the life and health of the company’s employees;
• provide employers with documentation asking them to eliminate identified violations of labor laws;
• act as independent expert members of the commission conducting testing and commissioning of work equipment.

Please note! According to Art. 377 of the Labor Code of the Russian Federation, the employer must provide acceptable conditions for the work of the trade union at the enterprise, namely: allocate special type premises for conducting meetings and storing documents, allowing information to be placed in any place convenient for employees.

What problems does the trade union help solve?

Both the trade union and the employer are interested in the success of the organization (its stable profitable work). The protection of the rights and interests of the employee and the employer by trade unions occurs as follows:

1. For company personnel, the protection of workers' labor rights by trade unions guarantees the preservation of their jobs, payment for work performed and benefits (under a collective agreement). The main drafter of the collective agreement is the trade union, and the employer simply edits it, removing obviously unenforceable clauses.
2. For employers, a trade union is beneficial in that it prevents the production process from being stopped due to strikes and various protests by workers. Trade unions also help employers unite their teams, take control of the discipline of the labor process, and organize sports and corporate recreational events. It is worth noting that trade unions bear the bulk of the costs associated with the above activities (this budget is formed by trade union membership fees of enterprise employees).
3. Due to the fact that trade unions are required to monitor the implementation of labor laws at the enterprise, the employer can benefit from this. Thus, inspectors specially trained by the trade union can conduct inspections of employees’ workplaces every day instead of a full-time labor safety specialist.
4. It is very difficult for the CEO to fully control the actions of the administration. Often the law on the protection of workers' rights is violated at the level of a workshop or individual team. In such cases, trade unions help resolve issues with violations on site, without going to court. For example, if some order affects an employee, then the protection of the employee’s rights by trade unions often occurs and is ensured during a normal conversation with the author of the order. If significant contradictions arise, the labor dispute commission (a special commission for the protection of workers’ rights) is called upon to resolve them.

Trade unions today do not fulfill their main function

Oleg Popov, LLC Cable Company Askold, St. Petersburg, General Director:

The protection of the rights and legitimate interests of workers from the arbitrariness of employers (as the main function of trade unions) is not being fulfilled today. This can be observed especially often in large enterprises. The very fact of the existence of trade unions in organizations looks false when the latter do not stop the occurrence of violations of the legal rights of workers. But serious problems can be resolved through the courts.

Today everyone can decide for themselves what goods or products they need. Therefore, I don’t understand why trade unions are still needed, especially for small firms (like ours). I decide all issues related to personnel myself; we do not have a trade union. My trade union experience was useful to me. We do not need a trade union to resolve disputes. And for serious disagreements there is a court.

State control and state protection of labor rights of workers

There are preliminary, ongoing, as well as subsequent supervision and control. The latter is a function of the court and the prosecutor’s office if violations of the Labor Code and labor protection rules have been identified.

Labor supervision and control is carried out by the following bodies for the protection of workers’ rights:

• Independent and state authorized bodies and inspections.
• Local authorities.
• Ministries and departments (conduct internal control at the enterprises they supervise).
• General Prosecutor's Office The Russian Federation as a whole and its subordinate structures (provide supreme supervision over the strict implementation of labor legislation in the Republic of Armenia, Article 253 of the Labor Code).

The Constitutional Court of the Russian Federation considers not only violations of labor law, but also its establishment (for example, as was the case in the case of the illegality of limiting payments for forced absenteeism under Article 213 of the Labor Code), because this is the supreme judicial body constitutional control.

Federal state supervision over the implementation by employers of labor laws and regulations that contain labor law norms is carried out by Rostrud, as well as its local bodies. This Regulation on federal state supervision is fixed by Decree No. 875 of the Government of the Russian Federation dated September 1, 2012.

The main tasks of the Federal Labor Inspectorate are:

• organizing the protection of workers’ rights and their freedoms, including the right to safe working conditions;
• ensuring compliance with labor legislation by employers;
• informing the company's managers and its employees about effective means and methods that help adhere to the principles of labor legislation;
• presentation to certain authorities of cases of violations that have occurred, as well as actions (inactions) performed or abuses in compliance with labor legislation (Article 355 of the Labor Code).

According to the Regulations, state labor supervision is carried out by state inspectors (including legal and labor safety inspectors), who have the right to:

• when demonstrating your ID, at any time, without interference, carry out checks at any type of enterprise, including individuals;
• make inquiries and receive from the company administration necessary documents, explanations and information for the performance of its functions of supervision and control;
• take samples for the purpose of analyzing substances used or processed, informing the employer (his representative) about this and drawing up a report;
• clarify the circumstances of accidents in the production process;
• give employers and their representatives important instructions to correct violations of labor law, restore workers’ rights, bring the guilty party to justice or remove them from work (i.e., ensure the protection of labor rights and legitimate interests of workers);
• provide instructions to prevent persons from working who have not studied safe work methods and have not been instructed in labor safety issues, who have not received on-the-job training, as well as checking the level of knowledge regarding labor protection requirements;
• prohibit means of individual and collective protection of workers that do not meet legislative requirements for technical regulation and labor protection;
• within the framework of its powers, record and consider cases related to offenses of an administrative nature, prepare and transmit to the court and law enforcement agencies data on bringing the perpetrators to justice.

Please note! Decisions of state labor inspectors can be reviewed by a higher-level manager (chief state labor inspector of the Russian Federation) and (or) through the court. Main decisions government inspector Labor of the Russian Federation can only be appealed in court (Article 361 of the Labor Code of the Russian Federation).

State control is inspections, the method of conducting which is established by the approved conventions of the ILO, Labor Code, Federal Law No. 294 of December 26, 2008. and Regulations.

Subjects of this check:

Compliance by the employer with labor laws;

Work to implement instructions related to the elimination of violations identified during the inspection;

Absence of violations of labor law, as well as protection and protection of workers’ rights.

The grounds for carrying out an unscheduled inspection are:

1. Expiring deadlines for processing orders from the federal labor inspectorate to correct identified violations of labor law requirements.

2. Transfer to the federal labor inspectorate:

Facts of violations by the administration of the TC company, including labor protection, resulting in a threat to the life and health of employees;

Complaints from workers regarding violation of their labor rights by the employer;

Requests for inspection of working conditions at the employees’ workplace, in accordance with Art. 219 Labor Code of the Russian Federation.

3. Order from the head of the federal labor inspectorate (or his deputy) to carry out an unscheduled inspection, based on instructions from the President (Government) of the Russian Federation, the prosecutor.

What penalties can be applied to an employer after an inspection?

It is important to understand the fact that a CEO's career can be derailed if labor laws are violated. Checks are carried out on each application from citizens. If a violation has been identified at the enterprise, then its first persons:

• orders and submissions may be issued for mandatory execution;
• may be discharged administrative fines according to articles of the Administrative Code(vv. 5.27-5.34, 5.44);
• court decisions may be made prohibiting the work of a specific unit or the entire organization;
• may face suspension from work.

The results of checking violations with the indicated full name of the manager and the name of the enterprise can be published in the media or otherwise communicated to the public (through the Internet sites of labor inspectorates and local authorities authorities, inclusion in “black lists” of employers).

If during the year the head of the company repeated violations of the labor rights of employees (on the same grounds), then such an official may be disqualified by the court on the basis of information provided by the labor inspectorate. The period of such disqualification is from one year to 3 years, and data on disqualification is entered into the federal register of disqualified persons (Article 32.11 of the Administrative Code). The register of the Government of the Russian Federation of 02.08.2005 No. 483 is maintained by the Ministry of Internal Affairs, while information about disqualified citizens is open. Such a person will be dismissed from a leadership position.

How is judicial protection of employee rights carried out?

If an employee’s labor rights are violated, he can use the state labor inspectorate, labor dispute commission or court to protect his violated rights.

Judicial protection in cases of violated labor rights is characterized by accessibility to every employee and high efficiency. The employee, as the weaker party in a labor dispute, seeks protection of his rights, taking advantage of the opportunity to go to the labor court free of charge (he is exempt from paying state fees when filing a claim in court for violation of his labor rights), shortened deadlines for consideration and resolution of cases reinstatement at work (up to 1 month, despite the fact that the time frame for consideration of civil cases in district courts is 2 months), immediate execution of the court decision.

Meanwhile, with such attractiveness of judicial protection of violated labor rights, for most employees of organizations, going to court is a last resort. The reasons for this: the employer dictates the conditions, there is no opportunity to find work in small towns and villages. All this forces the employee to come to terms with possible restrictions of labor law in order to maintain his job or position. There are exceptions, but most often the employee prefers to keep the job.

The Constitution of the Russian Federation ensures the rights of all citizens to resolve individual labor disputes using the methods established by federal laws. The state offers various possibilities for applying to court for protection. Constitutional articles No. 45 and 46 provide for the general guaranteed protection of labor rights and freedoms of workers. They give everyone the right to protect their rights and freedoms by all means that are not prohibited by law, and also provide guaranteed judicial protection of the rights and freedoms of citizens.

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The court deals with the consideration of individual labor disputes at the request of the employee, employer or trade union, which guards the interests of the employee, when they do not agree with the decision of the labor dispute commission, or the employee resorts to going to court, bypassing this commission, as well as at the request of the prosecutor in case of violations of labor legislation or other regulations in the process of making a decision by the labor dispute commission.

According to the civil procedural legislation of the Russian Federation, all labor disputes are considered by the district court.

As the Labor Code provides, the protection of the rights of workers in the Russian Federation provides them with the right to go to court to resolve an individual labor dispute for a period of up to 3 months from the date of violation of rights. In case of disputes regarding dismissal, the employee has the right to go to court within 1 month from the day he was given a copy of the dismissal order or given a work book. Moreover, if these deadlines are violated for a good reason, they can be reinstated in court. Circumstances that prevent the employee from filing a lawsuit in a timely manner, such as illness, being on a business trip, exposure to force majeure, or caring for a seriously ill family member, will be considered valid.

According to general rule, consideration of a labor dispute based on an employee’s claim is carried out at the location legal entity as a defendant (Article 28 of the Code of Civil Procedure) or at the place of residence, if the employer is an individual.

We always try to go “to the world”

Elina Khisamutdinova, General Director of LLC "KOPI-LIDER", Kazan

When joining our company, an employee must familiarize himself with his responsibilities, which are carefully spelled out in the employment contract and job description. In labor disputes, these documents signed by him, I believe, will be decisive in court. Thus, regulatory documents at the enterprise must be drawn up and reviewed in a timely manner by a lawyer with the participation of the company’s management.

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However, in my deep conviction, it is advisable to resolve any problematic issues humanly, by agreement. Especially considering the fact that in our country the laws do not work very well, on issues for which the price is not so high, it is better to agree to a “peace settlement”.

5 main mistakes employers make to avoid: protecting workers’ rights without trial

Judging by the experience of state labor inspectorates, employers sometimes do not understand changing labor legislation, continuing to make mistakes for which they pay as pre-trial procedure(receive orders and administrative fines, which are imposed by officials of the state labor inspectorate, representations from the prosecutor's office1), and in court.

The protection of labor rights and interests of workers has already been a tradition in domestic labor legislation since the Soviet era. The implementation of this mission is monitored by state bodies protecting the labor rights of workers: labor inspectorates, the prosecutor's office. They have the necessary tools to force employers to comply with labor law standards.

Let's look at the most common types of employer mistakes that it is very important for CEOs to avoid making.

Mistake #1. Unreasonable change in wages

The most common violation of labor laws. In general, employers have the free right to determine the wage system, salary schedule, rates, allowances and bonuses, “forks” (with the exception of budgetary organizations and those with mixed type financing - Article 135 of the Labor Code of the Russian Federation). But the problem arises in the fact that any changes in the already established remuneration system relate to the adjustment of the essential (most important) terms of the employment contract with the employee. And this requires grounds (by law), for example, organizational or technological. It is also extremely important to notify all employees in writing 2 months before the implementation of these changes (according to Article 73 of the Labor Code of the Russian Federation).

How to avoid mistakes

The HR department needs to clearly plan the so-called transition period for 2 months before radical changes in the remuneration system: salary reductions, the ratio of its elements, etc. Remember that you will need good reasons for this, otherwise the labor inspector or the court will oblige you return to the original wage system and pay employees the missing part of the salary (after a corresponding complaint from the employee).

Mistake #2. Pay discrimination

Such labor disputes have been practiced relatively recently. The bottom line is that the employee has the right to demand that the employer observe the principle of equal pay for work of the same degree of complexity, quality, quantity, qualifications (Article 3, Article 132 of the Labor Code of the Russian Federation). Employees also began to actively file complaints about discrimination in bonuses.

How to avoid mistakes

You have the right to determine the level of allowances and incentives in accordance with the quality of work and business characteristics of the individual employee. But do not forget that in court you may have to justify your preferences in favor of a certain employee and the difference in bonuses (compared to other employees). Therefore, it is important to fix the possibility of different assessments of the results of personnel work in the internal acts of the enterprise (such as the Regulations on bonuses). But be sure to familiarize all employees of the enterprise with them.

Mistake #3. Non-payment and delay of wages

Over the past two years, the practice of opening criminal cases against top officials of companies regarding non-payment of wages, scholarships, pensions and benefits has become more frequent in the Russian Federation (Article 145.1 of the Criminal Code of the Russian Federation). Convictions that have entered into force are still rare. When initiating such cases, the prosecutor's office is based on information from labor inspectorates about arrears in wage payments. At the same time, debt is not only non-payment of wages for more than 2 months, but also its partial accrual. For example, night work or overtime work require mandatory additional payment and are related to wages (Article 129 of the Labor Code of the Russian Federation), and the absence of their accrual will be considered, accordingly, a delay in wages.

If there are delays in salary payments, the company's chief executive may be fined, as well as the company itself (Article 5.27 of the Administrative Code, Article 236 of the Labor Code of the Russian Federation). In addition, according to the decision of the labor inspectorate/court, you will pay the employee a percentage for each day of delay (from the next day of the payment deadline to the day of actual payment, inclusive).

How to avoid mistakes

Oblige your accounting department to strictly adhere to established deadlines accrual (and payment) of wages, as well as all its components. In the event that there is a delay in payments due to the fault of the organization, accrue interest for all days of delay on your own initiative, without bringing the matter to employee complaints. After all, this way your losses will be much lower compared to the fines accrued during the inspection (after complaints from workers).

Mistake #4. Illegal dismissal

After new grounds for rupture appeared in the Labor Code labor agreement At the initiative of the employer (Article 81), some enterprises engaged in layoffs on the following grounds:

• disclosure of secrets protected by law (often commercial)2;
• provision of knowingly false information and forged documents when concluding an employment contract;
• absence required document on the employee’s education (Article 84 of the Labor Code of the Russian Federation).

Before dismissing an employee on these grounds, you should take into account a number of pitfalls so as not to create unnecessary problems for yourself in the future.

How to avoid mistakes

1. An employee cannot be dismissed under Art. 81 “Termination of an employment contract at the initiative of the employer” of the Labor Code of the Russian Federation during the period of vacation or sick leave (paid and unpaid).
2. Due to the disclosure of a trade secret, an employee can be fired only when this clause is specified in the individual employment contract (Article 57 of the Labor Code of the Russian Federation). That is, you should clearly ensure that these requirements are included in employee employment contracts. You can also make a reference in the concluded contract to a separate special agreement on non-disclosure of trade secrets, and it can be signed by the parties at any time from the moment the work begins.
3. For an employee providing knowingly false information or forged documents about himself, he can be fired only when these documents or information are on the list, according to Art. 65 TK (or other federal laws, presidential decrees, government regulations). The Labor Code does not provide for, and sometimes even prohibits (Article 86), the filling out by employees of various questionnaires and forms on issues of personal and family life, membership in public organizations and associations. Accordingly, it is impossible to fire someone for unreliability of such information.

As for the reason for the dismissal of an employee due to his lack of a document on the appropriate education, then, of course, the employer has the right to put forward additional requirements for the employee’s qualifications3 and recruit people who meet these requirements. But in the case when an employee is already working, his dismissal can only be carried out in accordance with legal acts (Article 84 of the Labor Code of the Russian Federation), which determine for each position the requirement for special knowledge (which is confirmed by an education document).

Mistake #5. Incorrect documentation

Errors in the preparation and maintenance of primary documentation by employees of your enterprise may result in penalties for the company.

How to avoid mistakes

Make sure that your accounting department and human resources department prepare all internal documentation on labor relations with employees on time and correctly document everything primary documents. Try to avoid a situation where employee signatures on the payroll for paid salaries are collected once every 3 months. This will save your company from unnecessary claims and inspections by regulatory authorities.

The Labor Code proposes to use legal methods to protect the labor rights of workers both when applying for a job, and during their working life, and even after dismissal. Workers will receive answers to questions about where the protection of workers’ rights is ensured and where to turn from the state labor inspectorate, the labor dispute commission, the trade union, etc.

To decide conflict situation, the employee needs to submit an application there, which will list the rights violated by the employer. It follows from this that it is best to resolve all contradictions peacefully, because If regulatory authorities confirm that an employer has violated labor laws, he may face not only administrative, but also criminal liability.

Information about the author and company

Mikhail Tarasenko, Chairman of the Mining and Metallurgical Trade Union of Russia, Moscow. The Mining and Metallurgical Trade Union of Russia is an all-Russian public organization that unites more than 1.2 million people on a voluntary basis: workers of the mining and metallurgical complex, students of industry educational institutions, former industry workers (retirees). Primary organizations have been created in more than 600 enterprises with a workforce of 400 to 60 thousand people. 77.8% of workers in the mining industry, ferrous and non-ferrous metallurgy, and in enterprises for the extraction and processing of precious metals and stones are members of the trade union.

Oleg Popov, General Director of Askold Cable Company LLC, St. Petersburg. Askold Cable Company LLC is the official distributor of Yuzhkabel Plant CJSC. The plant supplies products to the North-Western District: the Murmansk and Arkhangelsk regions, St. Petersburg, Novgorod, Pskov and other cities. Works according to a planned system. The company's staff is 30 people.

Elina Khisamutdinova, General Director of LLC "KOPI-LIDER", Kazan. LLC "KOPI-LIDER" is a wholesale company for the sale and service of office equipment, consumables, stationery, and office supplies. On the market since 2003.

The right to work is one of the fundamental rights of citizens of our country, which is declared in the Constitution. IN modern society, once again in a state of economic crisis, not all employers consider it necessary to respect this right. Means mass media They regularly report cases of illegal dismissal of employees, delays in payment of wages, and so on. Situations like these require all stakeholders to know legal framework labor relations. Ways to protect the labor rights of workers is one of the most pressing problems in this industry.

Types of methods for protecting labor rights

The concept of “protection of labor rights” is not limited solely to identifying violations of the rights of employees by employers and building previously violated rights in accordance with the law; it also includes the prevention of such violations. These issues are set out in Part 5 of the Labor Code, which includes their detailed description.

The forms and methods of protecting labor rights are explained by Art. 353 TK. It provides information that the state guarantees the protection of workers' rights. The methods of protection established by the state are also defined here.

• self-defense;
• protection of workers' rights with the participation of trade unions;
• supervision and control by the state.
• court protection.

There are also non-mainstream methods:

1. Defense with the participation of labor dispute commissions.
2. Conflict resolution through collective labor disputes.
3. Dispute resolution with the involvement of human rights organizations.
4. Appeal to the International Court of Human Rights.
5. Other ways.

With all the variety of proposed methods for protecting labor rights, the most effective are still those that assume that the state should take the side of the working person.

So, the protection of an employee’s labor rights can be carried out by him independently (self-defense), by society (if trade unions or other public organizations are involved in the process), by the state (with the participation of judicial and other government institutions).

Non-state methods

Non-state methods of protecting employee rights include such basic methods as self-defense and protection of rights with the participation of a trade union; in addition, this group includes all non-basic methods that protect the rights of working citizens in question.

Self-defense

This concept includes the entire range of means that are available to an employee to protect violated labor rights on his own. In all cases of violation of rights, a parallel filing of a complaint against the employer with government agencies is allowed.

• violation of the deadline for payment of wages;
• non-payment of wages;
• non-compliance with labor safety standards.

Despite the presence legal norms regulating the self-defense of an employee, the legislator provides only one form of it - a complete refusal to perform one’s work functions.

So, for example, if non-payment of wages continues for more than 15 days, any working person can legally refuse to perform his official functions. He must notify the employer organization about this in writing. Suspension of work usually lasts until the violation is eliminated. The employer is obliged to notify his employee in writing about the possibility of issuing wages. During self-defense, a worker can working hours not be at work, but he is entitled to accrual average salary for the period of self-defense.

In addition to the considered case, an officially working person can use the right to self-defense granted to him by law if he refuses to fulfill labor activity not provided for in the employment contract, or if there are threats to his life or health.

There is no need to fear harassment from the employer when defending yourself, since such behavior falls within the legal rights of the employee.

However, the law also protects the rights of the employer; he is entitled to defense and can apply to the same government bodies: the State Labor Inspectorate, the court - in order to challenge the illegal, in his opinion, actions of his employee.

The decision of these bodies is binding on both parties, therefore, if an employee’s right to self-defense in a particular case is declared illegal, then he must immediately begin work.

Protection of rights with the participation of trade union bodies

An employee has the right to receive assistance from professional associations in protecting his violated labor rights, provided that they are organized in the employer’s establishment of this employee, who became a member of the trade union on a voluntary basis.

The concept of “territorial trade union” is disclosed in the relevant law “On Trade Unions”. This is an association of citizens working in a certain industry, created on a voluntary basis and included in larger trade union associations. The most important goal of a trade union is to protect the interests of its members.

This association is authorized to monitor employers' compliance with labor standards established by law. This professional organization is independent and its activities are not influenced by government organizations.

To make a number of personnel decisions, the employer is required to notify trade unions and take into account the opinion of this body when making the final decision.

• reductions;
• low qualifications of the employee, as a result of which he is recognized as unsuitable for the position;
• repeated refusal by the employee to perform job responsibilities.

To create optimal conditions promoting the protection of the interests of all members of the trade union, this association may delegate its powers to protect workers to trade union inspectors.

They have the right to:

• visiting organizations that employ unionized workers;
• participation in the activities of the commission for the acceptance of production facilities;
• provide assistance in organizing compensation for damage when a trade union member receives it at work;
• check the working conditions of the working population and the fulfillment by employers of the obligations contained in collective agreements;
• analyze what caused accidents.

If trade union inspectors detect violations, the violator is obliged to notify the inspection body no later than 7 days about actions to eliminate the shortcomings.

Methods of protecting the rights of the working population, included in non-state ones, are enshrined in law. Every working citizen can protect his labor interests himself.

An important role in the implementation of labor rights defined by law is played by trade unions, endowed with fairly extensive powers for this purpose.

State methods

The state is interested in observing the rule of law in all spheres of citizens’ lives; it also pays great attention to protecting the labor rights of working citizens. The state provides supervisory and control functions regarding compliance with the requirements of labor laws, as well as judicial protection of the rights of a working person.

State Labor Inspectorate

Chapter 57 of the Labor Code examines in detail the functions of state control that ensure compliance with labor laws. Powers on behalf of the state are exercised here by the state labor inspectorate. All workers are allowed to contact this structure for protection of violated rights or, in addition, for an explanation of various complex nuances of labor law.

• the employee is not provided with the work specified in the employment contract;
• untimely or incomplete payment of wages, unlawful postponement of payment deadlines;
• the employee’s workplace does not comply with established requirements and standards, including those determined by the collective agreement;
• refusal to provide time for rest or illegal reduction of rest time for employees;
• other non-compliance with the rights of the working population.

Citizens who believe that they were unreasonably denied employment can also turn to the labor inspectorate for help.

The appeal is usually sent in writing, on paper, less often in electronic form. It is advisable to include copies of documents that confirm non-compliance with labor standards along with the complaint. According to current regulations, there is no statute of limitations for filing a complaint with this inspectorate.

Inspectors are required to take measures to document the authenticity of violations or to refute them.

• issue an order to the violator indicating the requirements for eliminating the violation;
• draw up an administrative protocol against the guilty person or organization;
• suspend the activities of the organization;
• remove those responsible from their official duties;
• prepare and send materials to bring the perpetrators to justice.

Any appeals from citizens may become a reason for ordering unscheduled inspections of organizations against which complaints are received.

Judicial authorities

The final authority that puts an end to a labor dispute is the court.

Employee's appeal for judicial protection begins with his drawing up a statement of claim. To do this, it is important to collect all documents confirming the facts of violation of labor law. At this time, there may be opposition from the employer, who may try to prevent the employee from collecting documents for evidence. Such cases are associated with delaying the filing of a claim in court, ultimately missing the filing deadline.

If the situation develops this way, you should request the necessary documents from the employer in writing. Pursuant to the provisions of Art. 62 of the Labor Code, the latter is obliged to issue them within three days.

It's important to know that statement of claim is drawn up according to the established template, otherwise you can not count on the acceptance of such an appeal. It is advisable to seek the help of a lawyer to draw up this appeal. The claim must be accompanied by copies of available documents that will confirm the facts of violation of the employee’s labor rights.

A claim is filed in court at the location of the organization violating labor law standards.

The deadline for filing such a claim is no later than 3 months. from the day the rights of a working person were violated. If the rights associated with admission, reinstatement or dismissal from work are violated, then given period even less – 1 month. These deadlines can be extended only if the employee proves that they were missed for valid reasons.

Violation of an employee’s rights is at the same time a violation of legislation in the field of labor relations. Therefore, the state suppresses such violations using disciplinary, material and criminal liability.

For the state authorities, the protection of employee rights, as can be seen from the information provided, is an important task, for the solution of which both state and non-state organizations and associations are involved. The important thing is that an employee, if his rights are violated, can defend them on his own, or resort to help large quantity authorized institutions, unions, etc., including international ones. This circumstance allows modern conditions protect the rights of the country's working population.