The system of bodies for the consideration of labor disputes. Bodies for the consideration of individual labor disputes, competence, procedure for consideration
Labor disputes arising between the employee and the employer regarding the application of the current labor legislation, the collective agreement and other local regulatory legal acts, as well as the fulfillment of the terms of the employment contract, are considered by: ); courts of general jurisdiction (Article 382 of the Labor Code of the Russian Federation); justice of the peace of a constituent entity of the Russian Federation (Article 23 of the Code of Civil Procedure of the Russian Federation); the federal district court as a court of first instance (Article 24 of the Code of Civil Procedure of the Russian Federation); the district court as an appellate instance (Article 320 of the Code of Civil Procedure of the Russian Federation); the relevant supreme court of the republic, the regional court, the court of the city of federal significance, the court of the autonomous region, the court autonomous region as a court of cassation for consideration of a district court decision that has not entered into legal force (Article 337 of the Code of Civil Procedure of the Russian Federation) or as a court of first instance; the presidium of the supreme court of the republic, the regional court, the court of the city of federal significance, the court of the autonomous region, the court of the autonomous district as a court of supervisory authority to review the decision of the district court that has entered into legal force, the appeal ruling of the district court, the ruling of the court of the republic, the regional court , courts of a city of federal significance, a court of an autonomous region, a court of an autonomous district (Article 337 of the Code of Civil Procedure of the Russian Federation); other bodies not provided for by the Labor Code of the Russian Federation, but determined in accordance with Article 383 of the Labor Code of the Russian Federation and other federal laws (for example, disputes of certain categories of employees considered in a special order). The procedure for consideration of individual labor disputes by other bodies not specified in the Labor Code of the Russian Federation is not the object of study of this work.
The Labor Code of the Russian Federation provided for the possibility of applying special order pre-trial consideration of certain categories of labor disputes.
Chapter 60 of the Labor Code of the Russian Federation basically retained the practice-tested procedure for considering individual labor disputes with minor changes. In the science of labor law, proposals have long been made to establish a single jurisdiction for individual labor disputes, regardless of the nature of the dispute. This scientifically based proposal is enshrined in the Labor Code of the Russian Federation. Thus, disputes about the transfer to another job are currently not under the jurisdiction of the labor dispute commission, but are considered directly in court, as well as disputes about dismissals, regardless of their grounds.
Under jurisdiction, we propose to understand the method and procedure for determining the body that should initially consider an individual labor dispute. The criteria for such a determination will be the basis of the dispute, the type and content of the violation (or alleged violation) of the rule established by the norm, the status of the employee and employer, the fact that the organization has a CCC, procedural deadlines.
The distribution of competence between the CCC and the court is such that the CCC is primarily responsible for protecting the rights of an employee in labor relations. The task of the CCC is the pre-trial resolution of an individual labor dispute, subordinate to the CCC, directly in the organization. The court is entrusted with the task of protecting the right itself under an employment contract and considering other labor disputes after or instead of the CCC or when there is no CCC.
The majority of individual labor disputes are considered either directly in the commission on labor disputes, or sequentially passing through both stages: the CCC, then the court. This procedure is convenient because disputes can be considered directly in the organization, i.e. at the place of work, where evidence can be collected and evaluated more quickly and easily.
Each jurisdictional body (CCC, court, superior body for disputes with alternative jurisdiction) is an independent body with its own procedure for considering labor disputes. Although the possibility of successive consideration of a dispute, first in the CCC, then in court, is called the general procedure, each of these bodies has its own procedure, regulated differently by law.
The procedure for considering labor disputes in the CCC is regulated by the Labor Code of the Russian Federation (Articles 383-390) and other federal laws. The procedure for considering labor disputes in court is determined by Art. 391-397 of the Labor Code of the Russian Federation and other federal laws, as well as civil procedural legislation. Other federal laws for the CCC and the court are laws that establish alternative jurisdiction for certain labor disputes, i.e. the employee himself decides where to apply - to a higher authority or to the court.
From the point of view of a number of authors, it seems appropriate to maintain the jurisdiction of labor disputes, provided for by the norms of the Labor Code of the Russian Federation. They propose to regulate not only the law, but also the procedure for making decisions by the CCC to refuse to accept a dispute that is not under its jurisdiction, with an explanation of the procedure for its resolution. The employee in these cases should have the right to appeal against the decision of the CCC, which denied him the consideration of the application. The form of appeal to the CCC should be determined by law. It is necessary to simplify as much as possible the procedure for applying to the CCC by an employee, providing for the obligation of a member of the CCC to assist the employee in preparing an application in terms of clarifying his requirements. In the course of accepting employees' applications, it is advisable for members of the commission to conduct appropriate negotiations with the employee, identify the essence of the dispute, clarify the employee's requirements, and in some cases help the applicant formulate them.
In my opinion, this point of view should be accepted only partially. These provisions can be implemented only by those members of the CCC who are representatives of the employee. Moreover, in this case, such member of the CCC should not participate in the consideration of the dispute in the commission. It is necessary to establish at the level of law a rule that provides for a ban on a member of the CCC to represent the interests of an employee who submits an application for consideration by the commission.
Part 2 Art. 383 of the Labor Code of the Russian Federation provides that the specifics of the consideration of labor disputes for certain categories of workers are established by federal laws.
In accordance with Art. 383 of the Labor Code of the Russian Federation, the procedure for considering labor disputes is determined only by the Labor Code of the Russian Federation and other federal laws. By-laws, laws of subjects of the Russian Federation cannot change it. However, in practice, the constituent entities of the Russian Federation adopt laws that also establish an alternative jurisdiction of labor disputes of municipal employees (the right to apply for permission of a labor dispute to local authorities or to the court. This contradicts part 2 of article 383 of the Labor Code of the Russian Federation, although there is another point of view AF Nurtdinova believes that there is no contradiction in the legislation.
All individual labor disputes according to their initial jurisdiction can be divided into the following groups: 1) considered in general order starting from KTS. This is how labor disputes arising from an employment relationship are considered. Other labor disputes derived from an employment relationship are not resolved in a general manner, since they are not under the jurisdiction of the CCC; 2) considered by the justice of the peace; 3) considered by the district court; 4) considered by a higher authority.
This is how the law defines jurisdictional bodies for individual labor disputes. But in a general manner, a dispute between an employee and an employer is considered in the CCC, and then, at the initiative of one of the disputing parties, in court. Recently, alternative jurisdiction of some disputes has arisen and is expanding - at the choice of the plaintiff in court or in a higher body. It follows that the CCC does not consider them. Since the Labor Code of the Russian Federation does not single out, according to jurisdiction, into a separate group individual labor disputes about establishing new working conditions for an employee, about satisfying his legitimate interests, they are considered, as well as disputes about the application of labor legislation, i.e. disputes about law, in the same general order, starting with CCC. In the labor dispute commission, those disagreements are subject to consideration that develop into a labor dispute resolved by the jurisdictional body, i.e. if the employee, independently or with the participation of the trade union committee as a representative of his interests, did not resolve these differences in direct negotiations with the administration. Therefore, the CCC, when accepting the application, must establish whether the employee tried to resolve the conflict directly with the employer and his representatives.
The Labor Dispute Commission cannot deal with disputes that fall under the jurisdiction of a court or higher authority, otherwise its decision will be illegal.
Article 384 of the Labor Code of the Russian Federation changed the procedure for the formation of a commission on labor disputes that existed before 2002 (according to the Labor Code of the Russian Federation). If earlier its members were elected by the general meeting (conference) of the labor collective, then in accordance with the Labor Code of the Russian Federation, the CCC is created at the initiative of the employees and (or) the employer from an equal number of representatives of employees and employers, i.e. on a parity (equal) basis. At the same time, representatives of employees in the CCC are elected by the general meeting (conference) of employees of the organization or delegated by the representative body of employees (trade union committee) with their subsequent approval at the general meeting (conference) of employees of the organization. Representatives of the employer are appointed to the KTS by order of the head of the organization. The Labor Code of the Russian Federation, unlike the Labor Code of the Russian Federation, does not provide for a rule according to which CCCs are formed in all organizations with more than 15 employees. It seems that the obligation to create a CCC in organizations of all forms of ownership should be retained in the Labor Code of the Russian Federation. The existing procedure, in my opinion, violates the rules of jurisdiction and jurisdiction. It is necessary to define in the law the person (persons) responsible for the formation of CCC in organizations. It seems that such a duty should be assigned to the employer. As long as the specified gap in the Labor Code of the Russian Federation remains, the very existence of the CCC institution as a body for resolving individual labor disputes in organizations becomes problematic.
Since labor legislation regulates the activities of the CCC in the most general terms, it is advisable at the local level normative act develop in the organization the Regulations on the commission on labor disputes, which should set out in detail the procedure for its organization and activities. In this case, priority should be given to questions of a procedural nature. The developers of such a document, as well as members of the existing commissions, can also use the norms of civil procedural legislation. In any case, such a local normative act (in the absence of a labor procedural code) can be very useful for members of the CCC and parties to an individual labor dispute. Given the particular relevance of issues related to the formation and operation of CCC in organizations, it seems necessary to propose to the Ministry of Labor of the Russian Federation to prepare exemplary position about KTS. It also seems necessary to organize the production and free distribution of methodological and special legal literature to help members of the CCC in organizations. Today, many Russian citizens and organizations need real support of this kind.
The presence of CCC allows you to resolve most of the emerging individual labor disputes promptly and with high quality within the organization itself. In this case, the employer does not bear legal costs.
Participation in CTC of legally educated citizens, high efficiency activities of such KTS is a prototype of the labor court, as a special jurisdictional body for the consideration of individual labor disputes. The organization of such CCCs and the effectiveness of resolving labor disputes by them confirms the correctness of the thesis about the need to form labor courts.
For a more successful formation of the CCC, it is necessary to clarify some provisions in the current labor legislation. So, in accordance with part 5 of Art. 384 of the Labor Code of the Russian Federation, the commission on labor disputes elects a chairman and a secretary from among its members. This is not consistent with Part 6 of Art. 387 of the Labor Code of the Russian Federation, since it also refers to the Deputy Chairman of the CCC.
By decision general meeting of the labor collective of the CCC organization can also be formed in some of its structural divisions with a large number of employees (or, for example, geographically distant from the central part of the organization). Commissions on labor disputes of subdivisions are created from an equal number of representatives of the labor collective, elected by the general meeting of employees of the subdivision, and representatives of the head of the subdivision, appointed by his order (instruction). In particular, at the enterprise of Novosibirsk, OAO Agrobios, a KTS of a subdivision (workshop) for the repair of refrigeration units was created. The creation of a separate workshop in this case is justified by the fact that it is located at a fairly significant territorial distance from the parent organization in the village of Agroles, Iskitimsky district, Novosibirsk region.
Commissions on labor disputes of the structural divisions of the organization operate in the same manner as the CCC of the central (head) organization for the consideration of labor disputes of employees of this division. Any disputing party can appeal against its decisions in court. Thus, in this case, the general procedure for sequential consideration of the dispute is also observed. Practice knows two types of commissions for the consideration of labor disputes: "CCC organization" and "CCC structural unit organizations."
Labor dispute commissions of structural subdivisions may consider individual labor disputes within the powers of these subdivisions.
The elected representatives of employees in the CCC (including in the CCC of a structural subdivision of the organization) are considered to be employees who received the majority of votes and for whom more than half of the members of the labor collective present at the meeting, and at the conference - of the conference delegates present, voted. The law does not establish how many members of the labor collective (delegates to the conference) must be present at the general meeting in order for it to be competent to elect representatives of employees to the CCC. Therefore, it applies general rule holding meetings, i.e. it is authorized to resolve issues when at least half of the members of the labor collective (conference delegates) are present.
Each KTS has its own seal. For organizational and technical services of the commission on labor disputes (clerical work, storage of cases, issuance of copies of decisions and extracts from the minutes of the CCC meeting), a permanent employee is specially appointed by order of the employer, and this is part of his labor function. This employee registers incoming applications, notifies of the time of the CCC meeting, etc. Since the listed actions are included in the scope of his labor duties, he can perform them during working hours.
An employee can apply to the labor dispute commission, the law does not grant such a right to the employer.
The employee has the right to apply to the KTS within three months from the day when he learned or should have learned about the violation of his right. The Labor Disputes Commission is obliged to accept the employee's application filed within the statute of limitations, register it and convene a meeting so that the dispute is considered within ten days from the date of submission of the application. If the deadline for applying to the KTS is missed, the employee's application is accepted. In this case, the commission finds out the reasons for missing the deadline. If they are valid, the CCC has the right to make a decision to restore the term and the dispute can be considered on the merits (Article 386 of the Labor Code of the Russian Federation). From the point of view of the science of labor law, this period is a claim period. The claim (prescription) period is the period of calendar time established by law for applying to the jurisdictional body for the protection of one's labor right or legitimate interest. Missing the claim period without good reason entails the loss of the right to protection in this body, therefore, the claim period is considered as a period for the implementation of the protection of the material labor right of the employee. The law does not determine which reasons are valid, leaving it to the discretion of the CCC. The practice of CCC considers such reasons to be a long-term illness of an employee, being on a business trip, vacation, etc. If the CCC, when resolving the issue of missing the claim period, recognizes it as a pass without good reason, then it makes a decision to refuse to satisfy the employee's requirements. This decision of the CCC can be appealed to the court.
The issue of deadlines in labor legislation has been repeatedly raised by employees and their representatives before the Constitutional Court of the Russian Federation. The norms of parts one and three of Article 211 of the Labor Code of the Russian Federation, as well as parts one and three of Article 392 of the Labor Code of the Russian Federation, essentially fix the same provisions on the timing of going to court to resolve an individual labor dispute. These norms established the same rules and the possibility of their restoration by the court in case of absence for good reasons. In accordance with these standards, an application for resolving a labor dispute is submitted to a district (city) court or a justice of the peace within three months from the day when the employee learned or should have learned about the violation of his right, and in cases of dismissal - within a month from the date of delivery of a copy of the dismissal order or from the date of issue of the work book. In case of missing the specified terms for valid reasons, they can be restored by the court. Article 386 of the Labor Code of the Russian Federation establishes a similar period for applying to the CCC - three months from the day the employee found out or should have found out about the violation of his right.
The Constitutional Court of the Russian Federation has repeatedly issued rulings in which the following legal position was expressed. Parts one and three of Article 211 of the Labor Code of the Russian Federation correlate with the provision of Article 37 (Part 4) of the Constitution of the Russian Federation on the recognition of the right to individual and collective labor disputes using the methods of their resolution established by federal law and, in fact, regulate the conditions, procedure and terms for the implementation of this constitutional rights. The one-month and three-month periods provided for by part one of Article 211 of the Labor Code of the Russian Federation for applying to the court are aimed at the quick and effective restoration of the violated rights of the employee, including the right to work in cases of illegal termination of the employment contract by the employer, the right to protection from unemployment, as well as the right to timely pay . The timeliness of going to court depends on the will of the employee. A deadline missed for valid reasons may be restored by the court or the CCC. In addition, by establishing a one-month rather than a longer term in cases of dismissal, the legislator took into account both the interests of the employer related to the selection of personnel, and the interests of a new employee who has taken a controversial position and is subject to dismissal if the former employee’s claim for reinstatement is satisfied. The Constitutional Court of the Russian Federation came to the conclusion that part three of Article 211 of the Labor Code of the Russian Federation is aimed not at limiting, but at expanding the guarantees of judicial protection of the rights and interests of participants in labor disputes if they miss, for good reason, the deadlines for applying to the court for permission to work spore. It equally protects the interests of both the employee and the employer, since both parties to the labor dispute are interested in as soon as possible its consideration (the employee - for the purpose of reinstatement in the previous job, and the employer - for the opportunity to hire a new employee). At the same time, the decision of the CCC or the court to refuse to restore the missed period may be appealed.
In accordance with Art. 14 of the Labor Code of the Russian Federation, the period with which the Labor Code of the Russian Federation connects the emergence of labor rights and obligations begins from the calendar date on which the beginning of the emergence of these rights and obligations is determined. The period with which the Labor Code of the Russian Federation connects the termination of labor rights and obligations begins the next day after the calendar date, which determines the end labor relations. Terms calculated in years, months, weeks expire on the corresponding date last year, month or week term. Non-working days are also included in the period calculated in calendar weeks or days. If the last day of the term falls on a non-working day, the expiration date of the term shall be the next working day following it.
In accordance with Art. 387 of the Labor Code of the Russian Federation, an absentee consideration of a labor dispute is possible only upon a written application from the employee. He may indicate in the application that he asks to consider the labor dispute in his absence. If the employee fails to appear for the second time without good reason at the meeting of the commission, then the CCC may decide to withdraw his application from consideration. But this does not deprive the employee of the right to file a re-application on the dispute, if the three-month claim period has not been missed. If the representative of the employer does not appear, the CCC meeting is not postponed.
Meetings of the CCC are held at non-working hours convenient for the employee concerned. The employee and the employer are notified in advance of the time for the consideration of the dispute. A meeting is considered competent to consider a labor dispute if it is attended by at least half of the members from each party, moreover, they must sit in an equal number of representatives from each party.
The labor dispute commission should not copy the court. Witnesses in the dispute are not removed, their attendance is voluntary, and the commission resolves the dispute by conferring and secretly voting right in the meeting room in the presence of the employee and other persons. This ensures wide publicity and public control over the work of the CCC. A copy of the minutes of the CCC meeting is usually posted for familiarization of the members of the labor collective.
The minutes of the CCC meeting are kept by its secretary, and signed and stamped by the CCC chairman or his deputy.
The decision of the commission on labor disputes indicates (Article 388 of the Labor Code of the Russian Federation): the name of the organization (subdivision), last name, first name, patronymic, position, profession or specialty of the employee who applied to the commission; dates of application to the commission and consideration of the dispute, the substance of the dispute; surnames, names, patronymics of the members of the commission and other persons present at the meeting; the essence of the decision and its justification (with reference to the law, other regulatory legal act); Voting results.
Properly certified copies of the decision of the commission on labor disputes are handed over to the employee and the head of the organization within three days from the date of the decision.
The decision of the CCC must be motivated and justified, contain references to the relevant labor law norms. The operative part of the decision is written in a binding form: refuse the applicant to satisfy the stated requirements, oblige the employer to pay such and such an amount to the employee, restore the employee's previous production standards, etc.
The three-day period for the delivery to the employee and the administration of properly certified copies of the decision of the CCC is the procedural period established by law. Only after receiving such a copy of the decision of the CCC, any of the disputing parties can appeal it to the court.
The decision of the CCC is appealed by the employee or employer to the court within ten days from the date of delivery of copies of the decision of the commission to them. Missing this deadline is not grounds for refusing to accept an application. Having recognized the reasons for the omission as valid, the court may restore this period and consider the dispute on the merits.
The decision of the CCC is subject to execution within three days after the expiration of the ten days provided for appeal. In case of non-execution of the decision of the commission within the prescribed period, the employee is issued by the commission on labor disputes a certificate, which is an executive document. The certificate shall not be issued if the employee or the employer has filed an application for the transfer of the labor dispute to the court within the prescribed period. Based on the certificate issued by the labor dispute commission and presented no later than three months from the date of its receipt, the bailiff enforces the decision of the labor dispute commission. If an employee misses the established three-month period for good reasons, the labor dispute commission that issued the certificate may restore this period (Article 389 of the Labor Code of the Russian Federation).
Article 389 of the Labor Code of the Russian Federation reflects one of the principles of the procedure for considering labor disputes - ensuring the real restoration of violated rights and legitimate interests of employees. This principle is expressed in the fact that if the employer voluntarily does not comply with the decision of the labor dispute body within the period established by law, then this decision is enforced through a bailiff.
The certificate, which has the force of an executive document, shall indicate: the name of the body that made the decision; date of its acceptance and issue of the certificate; surname, name and patronymic of the employee; decision on the merits of the dispute. The certificate is certified by the signature of the chairman of the CCC (or his deputy) and the seal of the CCC.
The bailiff performs his actions on the basis of federal law dated July 21, 1997 No. 118-FZ "On bailiffs", as well as the Federal Law of July 21, 1997 N 119-FZ "On enforcement proceedings".
The justice of the peace, in accordance with Article 23 of the Code of Civil Procedure of the Russian Federation, considers cases arising from labor relations, with the exception of cases on reinstatement and cases on the resolution of collective labor disputes. Thus, the legislator defined the magistrate as the main body for the consideration of labor disputes. The justice of the peace considers at first instance all disputes under the jurisdiction of the CCC in cases where the CCC in the organization has not been created or has not considered the employee’s application within 10 days (Article 390 of the Labor Code of the Russian Federation), if the employee, employer or trade union protecting the interests of the employee do not agree with the decision of the CCC, at the request of the prosecutor, if the decision of the CCC does not comply with the law (Article 391 of the Labor Code of the Russian Federation).
The District Court of First Instance may hear any individual labor dispute, with the exception of disputes heard by justices of the peace. Directly in the district court, in accordance with Art. 391 of the Labor Code of the Russian Federation, disputes about reinstatement are considered.
In connection with the presence of various bodies and instances that consider individual labor disputes, the question arises whether the process of litigation constitutes a single whole, regardless of which bodies and at what level are involved in making a decision, or whether there is an independent litigation: on the one hand, in KTS or higher authorities, and on the other - in the judiciary, as a result of which, in the first case, one should be guided by labor law, and in the second - by civil procedure. To this question, O.V. Smirnov, back in 1981, answered as follows: “since in many countries the judicial authorities, when considering labor disputes, are guided by the norms of civil procedural law, this seems to indicate that we are dealing with the second case. If we proceed from the fact that the concept of "civil process" has developed as opposed to the concept of "criminal process" and this implies the participation of courts in the consideration of cases of a non-criminal nature, then one can hardly object to this point of view, because labor disputes are not criminal cases. But when considering this issue from the standpoint of the branch division of law, there are serious doubts about the correctness of the previous point of view, because it is hardly possible that the proceedings of labor cases are no different from civil ones. The specifics of the consideration of labor cases is determined by the sectoral features of labor law.
Thus, the justice of the peace, the court considering labor cases, is a participant (subject) of labor proceedings and is obliged to act in the spirit of the basic principles of labor law, regardless of whether it acts as a justice body in the first instance, that is, when the employee applied directly to the court, bypassing the CCC, or considering a complaint against the decision of the CCC, when an employee, employer, prosecutor or representative of the trade union body go to court, challenging the decision of the CCC.
The most important from the point of view of the procedure for considering an individual labor dispute are the principles of democracy in the process of considering labor disputes, the free and accessible appeal of employees to the bodies resolving labor disputes, as well as the sequence, staging, non-linearity of actions within each stage and the speed of resolving labor disputes, ensuring real restoration of violated labor rights.
A labor dispute resolved in a general manner by a labor dispute commission is subject to consideration by a court (magistrate): 1) at the request of the employee, employer or the relevant trade union protecting the interests of the employee, when they do not agree with the decision of the CCC; 2) at the request of the prosecutor, if the decision of the CCC contradicts the law.
List of disputes to be considered in judicial order without prior application to the KTS, is given in Art. 391 of the Labor Code of the Russian Federation. Such disputes include, first of all, labor disputes over rights that are of particular importance to the employee, as well as disputes, the consideration of which is associated with certain difficulties. These include disputes: about reinstatement at work, regardless of the grounds for termination of the employment contract; on transfer to another job; on changing the date and wording of the reason for dismissal; about payment for the time of forced absenteeism or performance underpaid work; at the request of the employer for compensation for material damage caused by the employee; about refusal to hire; persons who believe they have been discriminated against; persons working under an employment contract with employers - individuals; persons working in an organization where CCCs have not been established; workers of religious organizations (Article 348 of the Labor Code of the Russian Federation).
It can be assumed that labor disputes of the heads of organizations and members of the collegial executive bodies of organizations should be resolved in court, since consideration of their disputes in the CCC is not possible due to a special official position such persons.
The courts consider labor disputes in the manner of general jurisdiction according to the rules established for the consideration of civil cases in the court of first instance. This applies both to disputes that have not been considered by the CCC, and to disputes that have been previously considered by the commission.
The consideration in the court of first instance of a dispute previously resolved by the CCC does not affect the procedural possibility of the parties to a labor dispute to appeal the decision of the justice of the peace to the appellate instance, the court decision to the cassation instance or by way of supervision. In case of a cassation appeal against a court decision, the proceedings are carried out in accordance with the norms of civil procedural legislation.
With the introduction of the institution of magistrates, the consideration of labor disputes (with the exception of disputes about reinstatement) was also referred to the competence of these bodies and enshrined in Art. 23 Code of Civil Procedure of the Russian Federation.
Justices of the peace do not have the power to reverse a decision made by a labor dispute committee. An appeal against the decision of the CCC is the transfer of an individual labor dispute to the court.
Given the existence of various bodies whose competence includes the protection of rights and legally protected interests, it is necessary to correctly and accurately delineate their powers in this area, which is what the institution of jurisdiction serves.
The multi-level and multi-link nature of the system of courts of general jurisdiction necessitates the delimitation of jurisdictional powers, firstly, vertically, that is, between courts of different levels and links of the judicial system (for example, between federal district courts and justices of the peace; between lower and higher federal courts) ; secondly, horizontally, that is, between courts of the same link, as well as within the same court. Horizontal differentiation of jurisdictional powers takes place: 1) in case of differentiation of powers of the same type of courts of the same link; 2) in case of differentiation of jurisdictional powers between military and non-military courts; 3) in case of delimitation of collegiate and sole powers of the same court (military and non-military), empowered by law to consider a specific legal case in the first instance.
So, the procedure for delimiting the powers of courts of general jurisdiction to consider and resolve legal cases subordinate to them is regulated by such an institution of civil procedural law, which is called jurisdiction. In this regard, jurisdiction is a set of civil procedural rules that establish the rules for delimiting the powers of courts of general jurisdiction.
Depending on the criterion for delimiting the powers of courts of general jurisdiction, there are two main types of jurisdiction: generic (subject) and territorial (local). Generic jurisdiction is characterized by the fact that the criterion for delimiting the jurisdictional powers of courts and judges is the genus, type, category of cases. Territorial jurisdiction is determined on the basis of such criteria as place, territory.
In accordance with Part 1 of Art. 390 of the Labor Code of the Russian Federation, an employee has the right to use another form of transferring an individual labor dispute to the court - by filing a statement of claim for the restoration of violated subjective rights if, within the established 10-day period, the labor dispute commission did not consider it on its merits. The provisions of Art. 390 of the Labor Code of the Russian Federation do not determine the generic jurisdiction of an individual labor dispute transferred from the CCC to the judicial authorities.
According to Art. 28 Code of Civil Procedure of the Russian Federation, the claim is brought to the court at the place of residence of the defendant. A claim against an organization is filed with the court at the location of the organization. If the employer is an individual, then the claim is brought to the court at his place of residence. If a legal entity acts as an employer, the claim is brought at the location of the body of the legal entity (according to paragraph 2 of Article 54 of the Civil Code, the location of the legal entity is the place of its state registration).
In accordance with Art. 29 of the Code of Civil Procedure of the Russian Federation, jurisdiction is possible at the choice of the plaintiff: a claim against an organization arising from the activities of its branch or representative office can also be brought to the court at the location of its branch or representative office (clause 2, article 29 of the Code of Civil Procedure of the Russian Federation); claims for the restoration of labor rights can also be brought to the court at the place of residence of the plaintiff (clause 6, article 29 of the Code of Civil Procedure of the Russian Federation); workers' claims for compensation for harm to health caused to them in the performance of labor duties can be brought at the place of harm, as well as at the place of residence of the employee (clause 5, article 29 of the Code of Civil Procedure of the Russian Federation); Workers' claims for the restoration of labor rights may be filed at their place of residence.
The choice between several courts, which, according to Article 29 of the Code of Civil Procedure of the Russian Federation, has jurisdiction over the case, belongs to the plaintiff (Clause 10, Article 29 of the Code of Civil Procedure of the Russian Federation).
It should be noted that with the creation in Russia of the institution of magistrates, the problem of bringing the consideration of a labor dispute closer to the location (place of residence) of the parties to the labor conflict is not being solved. The content of labor disputes is very diverse. Therefore, the indication in the law of the jurisdiction of justices of the peace of all disputes arising from labor relations, with the exception of reinstatement cases, does not yet speak of clarity in the delimitation of jurisdiction between district courts and justices of the peace. Thus, it is not entirely clear to which branch of the system of general courts jurisdiction should include disputes, although they do not contain requirements for reinstatement, but which raise the question of the legality of terminating an employment contract (for example, changing the wording of the reasons for dismissal, collecting wages during forced absenteeism without reinstatement) or forcing the employer to conclude an employment contract (for example, when challenging a refusal to hire). Disputes between magistrates and district courts regarding the jurisdiction of a number of cases arising from labor relations do not at all contribute to the timely and correct resolution of this category of cases. In addition, as a result, a significant number of labor cases under the jurisdiction of the justice of the peace become the subject of resolution on the merits of the district court. This is due to the fact that the district court, being the appellate instance in relation to justices of the peace, considers cases on appeal in full using the procedure peculiar to the court of first instance. And since decisions made in labor cases are quite often appealed to a higher court, a labor dispute, as a rule, is "doomed" to a second consideration on the merits in a district court.
The current Code of Civil Procedure of the Russian Federation did not clearly define the powers of the district court as an appellate instance when considering complaints or representing a prosecutor against decisions of a justice of the peace. It is advisable to fix in the procedural legislation the rules for consideration of such complaints and submission, as well as for cassation complaints. The consideration of the case must be collegial, and the limits of the consideration of the case in the court of appeal must be similar to those established by Article 347 of the Code of Civil Procedure of the Russian Federation.
The plaintiff in the case, as a rule, is the employee whose rights are violated. Due to the fact that labor legal personality begins at the age of 15, a minor worker can also be a plaintiff in a case.
The interests of the employer are represented in court by an authorized official of the employer. A power of attorney on behalf of an organization is issued signed by its head or another person authorized to do so by its constituent documents, affixed with the seal of this organization (part 3 of article 53 of the Code of Civil Procedure of the Russian Federation).
When considering an individual labor dispute by a justice of the peace in accordance with Part. 3 Article. 3 of the Federal Law of December 17, 1998 No. 188-FZ "On Justices of the Peace in the Russian Federation", the justice of the peace considers the labor dispute alone.
When considering an individual labor dispute in a federal court in accordance with the Code of Civil Procedure of the Russian Federation (Article 7), civil cases in the courts of first instance are considered by the judges of these courts individually or collectively in the cases provided for by federal law. If the Code of Civil Procedure of the Russian Federation grants the judge the right to consider civil cases and perform individual procedural actions, he acts on behalf of the court. Cases on complaints against judicial decisions of justices of the peace that have not entered into legal force are considered on appeal by the judges of the respective district courts alone. Civil cases in the courts of cassation and supervisory instances are considered collectively.
In cases stipulated by federal law, cases in the courts of first instance are considered collectively by three professional judges (Part 1, Article 14 of the Code of Civil Procedure of the Russian Federation).
In accordance with Art. 133 of the Code of Civil Procedure of the Russian Federation, the judge, within five days from the date of receipt of the statement of claim by the court, is obliged to consider the issue of accepting it for his proceedings. On the acceptance of the application for court proceedings, the judge issues a ruling, on the basis of which a civil case is initiated in the court of first instance.
After accepting the application, the judge issues a ruling on preparing the case for trial and indicates the actions to be taken by the parties, other persons participating in the case, and the timing of these actions to ensure the correct and timely consideration and resolution of the case. Preparation for trial is mandatory in every civil case and is carried out by the judge with the participation of the parties, other persons participating in the case, their representatives (Article 147 of the Code of Civil Procedure of the Russian Federation).
An individual labor dispute on reinstatement must be considered and resolved before the expiration of a month from the date of acceptance of the application for proceedings (part 2 of article 154 of the Code of Civil Procedure of the Russian Federation).
When applying to the court for resolution of a labor dispute, the parties should keep in mind that at the same time, the court may consider the employee’s claim for reinstatement and the employer’s complaint against the order state inspection labor on the restoration of an illegally dismissed employee (Article 373 of the Labor Code of the Russian Federation). Each employee or representative of the trade union committee can receive free legal assistance in the labor dispute that has arisen in the legal consultations of the trade union bodies.
During the consideration of a labor dispute in court, the parties may conclude a settlement agreement. The terms on which the parties came to an amicable agreement must be reflected in the minutes of the court session and signed by the parties. A settlement agreement cannot be approved if it in any way infringes on the labor rights of an employee or, in circumvention of the law, is aimed at relieving the relevant persons from liability. By concluding a settlement agreement in court, the parties are not entitled to change the amount of compensation for harm caused to the health of an employee in the performance of labor duties.
A dispute that has arisen between the parties can be eliminated (settled) voluntarily by their amicable agreement and without going to court. The content of such an agreement varies. It is often expressed in temporary concessions by the parties while maintaining the legal relationship, it may consist in an agreed clarification and clarification of the terms of the legal relationship, interpreted by the parties in different ways and therefore gave rise to disagreements in its implementation.
In all these cases, regardless of whether such an agreement is aimed at changing the legal relationship (transformative action) or at confirming it (declarative action), the parties undertake to consider the legal relationship existing between them in the form provided for by the agreement (constitutive action), and be guided by them in their behavior (regulative action). Therefore, the settlement agreement concluded by the parties in the specified content is a transaction, in this case, an agreement in a civil law sense.
A settlement agreement concluded without going to court is out-of-court. An extrajudicial settlement agreement (agreement), if one of the parties evades its execution, and the other goes to court, will be one of the circumstances of the case.
Outside the court, an agreement can also be reached on a dispute in which a civil case has been initiated in court. Such an agreement acquires legal significance only after its approval by the court.
Certification and approval by the court of a settlement agreement are necessary conditions to give them legal value. Without them, such an agreement cannot be considered complete and valid.
Thus, a judicial settlement agreement is a deal concluded by the parties during the consideration of the case and approved by the court, according to which the plaintiff and the defendant, by mutual concessions, redefine their rights and obligations and terminate the litigation that has arisen between them. The new rules of legal relations of the parties established by this agreement are obligatory for execution, and they must be guided by them in their behavior.
A judicial amicable agreement can only be concluded between the parties and, therefore, cannot be made by other persons participating in the case (third parties without independent claims, the prosecutor, etc.). Before approving a settlement agreement, the court is obliged, with the participation of the parties, to carefully check whether it is legal, whether it violates anyone's rights or legally protected interests (part 2 of article 39, article 173 of the Code of Civil Procedure of the Russian Federation).
The settlement agreement, drawn up by the parties in the form of an independent document, is attached by the court to the case. Such registration is of particular importance when considering a case in the cassation and supervisory instances.
A court settlement agreement must meet certain requirements:
a) as a civil law transaction, a judicial settlement agreement is subject to the norms of civil law. A settlement agreement that suffers from at least one of the vices with which the law associates the invalidity of the transaction (Articles 168-179 of the Civil Code of the Russian Federation) cannot be approved by the court;
b) the purpose of the judicial amicable agreement is the final elimination of the dispute between the parties, with which the requirements for clarity of the content of the amicable agreement, full certainty and unconditionality of the rights and obligations of the parties established by the agreement are connected.
The terms of the amicable agreement approved by the court ruling must be set out clearly and definitely so that there are no ambiguities and disputes about its content during execution.
Upon the entry into force of the court ruling to terminate the proceedings on the basis of a settlement agreement approved by it, the possibility of a second appeal to the court with the same claim is excluded (paragraph 5 of article 220, article 221 of the Code of Civil Procedure of the Russian Federation).
The settlement agreement of the parties is one of the forms of free settlement of the dispute by the parties without the use of state coercion. The court must take the initiative in conciliating the parties. The possibility of resolving the dispute by amicable agreement should be clarified by the judge in the process of preparing the case for trial, at the beginning of the trial in the court of the first, appeal and cassation instances (Articles 172. 327, 350 of the Code of Civil Procedure of the Russian Federation).
If the settlement agreement is not executed voluntarily, it is enforced.
The trend towards an increase in the number of labor disputes considered in courts allows us to conclude that after the entry into force of the Labor Code of the Russian Federation, the number of such cases and their complexity increase. The legislator and the judiciary are faced with the question of the need to create a Labor Procedure Code (TPK) and special courts to resolve labor disputes.
If the adoption of the TPC, taking into account the novelty of this major normative act, will undoubtedly require considerable time, then the creation of a specialized link in the judicial system can be carried out in a relatively short time.
Labor disputes are disputes that arise between the subjects of labor relations.
There are two types of labor disputes:
Individual
Collective
Individual labor disputes may be of an action or non-contact nature.
Individual labor disputes of a claim nature arise on issues of violation of law.
Non-contractual labor disputes are disputes about establishing new or changing existing working conditions.
Labor disputes arising between an employee and the administration of an enterprise, institution, organization, regarding the application of legislative and other regulatory acts on labor, a collective agreement and other labor agreements, as well as the terms of an employment agreement (contract) are considered:
Commissions on labor disputes;
District (city) people's courts.
Article 201 of the Labor Code in its new edition introduced fundamental changes in the composition of the bodies considering individual disputes.
Firstly, trade union committees of enterprises were excluded from the composition of these bodies, which, while representing the interests of trade union members, could not, therefore, be objective arbitrators.
Secondly, in full accordance with Art. 32 of the Declaration of the Rights and Freedoms of Man and Citizen and Art. 46 of the Constitution of the Russian Federation, the consideration of labor disputes of certain categories of workers on certain issues by higher authorities in order of subordination was finally eliminated.
The procedure for considering labor disputes is regulated by the Labor Code and other legislative acts, and the procedure for considering cases on labor disputes in district (city) people's courts is determined by the Civil Procedure Code of the RSFSR.
The procedure for considering cases on labor disputes in district (city) people's courts has undergone significant changes. According to the additions made to Art. 113 of the CPC Law of the Russian Federation of May 29, 1992, cases on labor relations, except for reinstatement cases, are in all cases considered by a single judge.
In accordance with Art. 6 of the Code of Criminal Procedure in its new wording, reinstatement cases are considered by the judge alone, if the persons participating in the case do not object to this, or collectively, if any of the persons participating in the case objects to the sole judge before the start of the consideration of the case on the merits. its consideration.
The Labor Disputes Commission is the first instance for the consideration of labor disputes.
Article 203 of the Labor Code:
“The commission on labor disputes is elected by the general meeting (conference) of the labor collective of an enterprise, institution, organization with at least 15 employees.
Candidates who received the majority of votes and for whom more than half of those present at the general meeting (conference) voted are considered elected to the commission.
The procedure for election, the number and composition of the commission, the term of its powers are determined by the general meeting (conference) of the labor collective of the enterprise, institution, organization.
The commission on labor disputes elects from among its members a chairman, deputy chairmen and a secretary of the commission.
By decision of the general meeting (conference) of the labor collective of an enterprise, institution, organization, commissions on labor disputes in subdivisions may be created. These commissions are elected by the teams of subdivisions and act on the same basis as commissions on labor disputes of enterprises, institutions, and organizations. The commissions on labor disputes of subdivisions may consider labor disputes within the powers of these subdivisions.
Previously, the KTS was organized from an equal number of representatives of the trade union committee and the administration.
The procedure for organizing the CCC, provided for in Art. 203 Labor Code, obligatory only for state and municipal enterprises. At enterprises of other forms of ownership, the procedure for organizing pre-trial consideration of labor disputes is determined by the charters of these enterprises.
An employee can apply to the CCC within three months from the day when he learned or should have learned about the violation of his right.
If the deadline is missed for valid reasons, the CCC may restore the deadline and resolve the dispute on the merits.
The application of the employee, received by the commission on labor disputes, is subject to mandatory registration.
It is not allowed to refuse to accept an application for consideration of a labor dispute on the grounds that an employee missed a three-month period. The issue of respectfulness and disrespectfulness, for which the deadline under consideration was missed, should be decided by the CCC at its meeting in the presence of the employee concerned. Having recognized the reasons for missing the statute of limitations as valid, the KTS restores it, if there are no valid reasons, it refuses to satisfy the requirements of the employee.
The log of registration of applications for the consideration of labor disputes received by the CCC is kept in an arbitrary form, but it should be noted in it:
Last name of the applicant;
the subject of the dispute;
Date of receipt of the application;
Date of dispute resolution;
The labor dispute committee is obliged to consider the labor dispute within ten days from the date of filing the application. The dispute is considered in the presence of the employee who submitted the application and a representative of the administration. Consideration of the dispute in the absence of the employee is allowed only upon his written application. If the employee does not appear at the meeting of the commission, the consideration of the application is postponed. In the event of a second non-appearance of an employee without good reason, the commission may decide to withdraw this application from consideration, which does not deprive the employee of the right to submit an application again.
The Labor Disputes Commission has the right to summon witnesses to a meeting, to invite specialists, representatives of trade unions operating at an enterprise, institution, or organization.
At the request of the commission, the administration is obliged to submit the necessary calculations and documents.
The meeting of the commission on labor disputes is considered competent if at least half of the members elected to its composition are present.
The commission on labor disputes makes a decision by a majority of votes of the members of the commission present at the meeting. A member of the commission who does not agree with the decision of the majority is obliged to sign the protocol of the meeting of the commission, but has the right to express his dissenting opinion in it. This opinion must be communicated to the parties.
The decisions of the commission on labor disputes must be motivated and based on the legislation and other normative acts on labor, the collective agreement, agreement or labor contract.
The decision of the CCC must be expressed in a categorical and clear manner. In the decision of the CCC on monetary matters, the exact amount due to the employee must be indicated.
The decisions of the commission within three days from the date of adoption are handed in copies to the employee and the administration.
The decision of the CCC may be reviewed.
If in the process of execution between the parties to the dispute there are disagreements regarding the interpretation, the CCC has the right to issue an additional decision clarifying the first.
It is expedient to hang out the decisions of the CCC in prominent places for the information of the labor collective.
If the commission on labor disputes does not consider the labor dispute within ten days, the employee concerned has the right to transfer its consideration to the district (city) people's court.
The decision of the commission on labor disputes can be appealed interested employee or administration to the district (city) people's court within ten days from the date of handing them copies of the decision of the commission. Missing this deadline is not grounds for refusing to accept an application. Having recognized the reasons for the omission as valid, the court may restore this period and consider the dispute on the merits.
In the district (city) people's courts disputes are considered:
At the request of the employee, the administration or the relevant trade union, when they do not agree with the decision of the CCC.
According to the prosecutor, if the decision of the CCC contradicts the law.
Directly in the district (city) people's courts, labor disputes are considered on applications:
Employees of enterprises, institutions, organizations where labor dispute commissions are not elected;
Employees on reinstatement, regardless of the grounds for termination of the employment contract, on changing the date and wording of the reason for dismissal, on payment for the time of forced absenteeism or performance of lower paid work.
Administration on compensation by employees for material damage caused to an enterprise, institution, organization.
Employees on the application of labor legislation, which, in accordance with the current legislation, was resolved by the administration and the trade union committee of the enterprise, institution, organization (subdivision) within the limits of the rights granted to them.
Directly in the district (city) people's courts, disputes on refusal to hire are also considered:
Persons invited to work in the order of transfer from another enterprise, institution, organization;
Young professionals who have graduated from higher or secondary specialized educational institution, as well as persons who graduated from a vocational educational institution and were sent in the prescribed manner to work at this enterprise, to an institution, organization;
Other persons with whom the administration of an enterprise, institution, organization, in accordance with the law, is obliged to conclude an employment contract.
Claims by employees in cases of labor disputes presented at the location of the enterprise.
Claims of the enterprise to employees for compensation by them for material damage caused to the enterprise - at the place of residence of the employee.
An application to the court is submitted within three months from the day when the employee found out or should have found out about the violation of his right, and in cases of dismissal, within a month from the date of delivery of a copy of the dismissal order or from the date the work book was issued.
Let's take a closer look at the issue of illegal dismissal:
In case of dismissal without legal grounds or in violation of the established procedure for dismissal or illegal transfer to another job, the employee must be reinstated in his previous job by the body considering the labor dispute.
When making a decision on reinstatement at work, the body considering the labor dispute at the same time makes a decision on paying the employee the average earnings for the period of forced absenteeism or the difference in earnings for the time of performing lower-paid work, but not more than for one year.
At the request of the employee, the body considering the labor dispute may limit itself to making a decision on the recovery of the above compensation in his favor and on changing the wording of the grounds for dismissal to dismissal of his own free will.
Also, the sanctions regulated in Art. 214 Labor Code.
Article 214:
“The imposition of liability on an official guilty of illegal dismissal or transfer.
The court imposes on an official guilty of illegal dismissal or transfer of an employee to another job, the obligation to compensate for the damage caused to the enterprise, institution, organization in connection with payment for the time of forced absenteeism or for the time of performing lower-paid work. Such an obligation is imposed if the dismissal or transfer was made in clear violation of the law, or if the administration delayed the execution of a court decision to reinstate the employee at work.
The amount of compensation for damage cannot exceed three monthly salaries of an official.
The decision to reinstate an employee unlawfully dismissed or transferred to another job, taken by the labor dispute resolution body, is subject to immediate execution.
If the administration of an enterprise, institution, organization delays the execution of a court decision on the reinstatement of an employee who was illegally dismissed or transferred to another job, the court that made the decision to reinstate the employee at work issues a ruling on payment of his average earnings or the difference in earnings for the entire time of delay.
Strict compliance with the requirements of Art. 214 of the Labor Code not only contributes to the compensation of material damage caused by the guilty actions of officials to an enterprise, institution, organization, but also is an effective means of combating illegal dismissals, transfers of workers and employees, cases of delay in the execution of court decisions on reinstatement, as well as a measure to prevent such violations and a guarantee of the real exercise by citizens of Russia of the right to work.
Material damage caused to an enterprise, institution, organization in connection with payment to an employee for the time of forced absenteeism due to the delay by the administration of the execution of a court decision on reinstatement at work is subject to compensation at the expense of the guilty official, whose duties included issuing an order to reinstate the employee and who did not timely fulfilled this duty.
For the administration to apply to the court on the recovery of material damage from the employee, a period of one year is established from the date of discovery of the damage caused.
Collective labor disputes (conflicts) arise between the administration of an enterprise, institution, organization and the labor collective (subdivision of the collective) or the trade union on the issues of establishing new or changing existing working and living conditions, concluding and executing a collective agreement and other agreements. They are in the nature of non-contractual labor disputes.
The procedure for consideration and methods of resolving labor disputes is regulated by the Federal Law "On the procedure for resolving collective labor disputes" of November 23, 1995. This law introduced significant changes and amendments to the USSR Law "On the procedure for resolving collective labor disputes (conflicts)" .
An important step in the issue of resolving labor disputes was the Decree of the Government of the Russian Federation of April 15, 1996 "On the Service for the Settlement of Collective Labor Disputes." It documents all the powers and purposes for which the Collective Dispute Resolution Service was established.
The Service for the Settlement of Collective Labor Disputes is a state body that facilitates the resolution of collective labor disputes by organizing and participating in conciliation procedures.
The Service in its activities is guided by the Constitution of the Russian Federation, the Federal Law "On the procedure for resolving collective labor disputes", other federal laws, acts of the President of the Russian Federation, decisions of the Government of the Russian Federation and these Regulations.
The main tasks of the service are to promote the settlement of collective labor disputes, organize conciliation procedures and participate in them, and implement measures to prevent and resolve collective labor disputes.
Service in accordance with the tasks assigned to it:
Organizes work on the settlement of collective labor disputes in cooperation with representatives of employees and employers, state authorities and local governments, using all the possibilities provided for by the legislation of the Russian Federation to resolve collective labor disputes that have arisen;
Carries out notification registration of collective labor disputes;
Checks, if necessary, the powers of representatives of the parties to the collective labor dispute;
Forms lists of mediators and labor arbitrators for consideration of collective labor disputes, determines the procedure for inviting a mediator by the parties to a collective labor dispute or appointing him as a service if the parties do not reach an agreement on the candidacy of the mediator;
Participates, together with the parties to collective labor disputes, in the creation of labor arbitrations, in the formation of their composition, in determining the rules and powers;
Approves the composition of the labor arbitration in case of disagreement of one of the parties with the proposed composition;
Identifies the causes and conditions for the emergence of collective labor disputes, prepares proposals for their elimination;
Provides methodological assistance to the parties at all stages of resolving collective labor disputes;
Organizes the financing of conciliation procedures in accordance with the established procedure;
Prepares up-to-date information on collective labor disputes (strike) in the regions of the Russian Federation and measures taken to resolve them;
Organizes work on the selection and advanced training of employees of the service, as well as on the training and advanced training of mediators and labor arbitrators specializing in resolving collective labor disputes;
Develops proposals for conducting research work on the problems of settling collective labor disputes;
Studies, generalizes and disseminates domestic and Foreign experience organization of work on the prevention and settlement of collective labor disputes, publishes an information bulletin.
Employees of the service may, in accordance with the established procedure, be involved in the performance of work as an expert, mediator or labor arbitrator in the conduct of conciliation procedures for the settlement of collective labor disputes.
Individual labor dispute - unsettled disagreements between an employer and an employee on the application of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, an agreement, a local regulatory act, an employment contract (including the establishment or change of individual working conditions), about which it is declared in body on consideration of individual labor disputes.
An individual labor dispute is a dispute between an employer and a person who previously had an employment relationship with this employer, as well as a person who has expressed a desire to conclude an employment contract with the employer, if the employer refuses to conclude such an agreement.
Article 382. Bodies for the consideration of individual labor disputes
Individual labor disputes are considered by labor dispute commissions and courts.
Article 383. Procedure for consideration of labor disputes
The procedure for considering individual labor disputes is regulated by this Code and other federal laws, and the procedure for considering cases on labor disputes in courts is determined, in addition, by the civil procedural legislation of the Russian Federation.
Features of consideration of individual labor disputes of certain categories of employees are established by this Code and other federal laws.
(as amended by Federal Law No. 13-FZ of February 28, 2008)
Article 384. Formation of labor dispute commissions
Labor dispute commissions are formed at the initiative of employees (representative body of employees) and (or) the employer (organization, individual entrepreneur) from an equal number of representatives of employees and the employer. An employer and a representative body of workers who have received an offer in writing on the establishment of a commission on labor disputes, are obliged to send their representatives to the commission within ten days.
(part one as amended by Federal Law No. 90-FZ of 30.06.2006)
Representatives of the employer to the commission on labor disputes are appointed by the head of the organization, the employer - an individual entrepreneur. Representatives of employees to the commission on labor disputes are elected by the general meeting (conference) of employees or delegated by the representative body of employees with subsequent approval at the general meeting (conference) of employees.
By decision of the general meeting of employees, labor dispute commissions may be formed in structural subdivisions of the organization. These commissions are formed and operate on the same basis as the commissions on labor disputes of the organization. The commissions on labor disputes of structural subdivisions of organizations may consider individual labor disputes within the powers of these subdivisions.
The Labor Disputes Commission has its own seal. Organizational and technical support for the activities of the commission on labor disputes is carried out by the employer.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
The commission on labor disputes elects from among its members a chairman, a deputy chairman and a secretary of the commission.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Article 385. Competence of the commission on labor disputes
The Labor Disputes Commission is a body for the consideration of individual labor disputes, with the exception of disputes for which this Code and other federal laws establish a different procedure for their consideration.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
An individual labor dispute is considered by the labor dispute commission if the employee, independently or with the participation of his representative, has not settled the differences during direct negotiations with the employer.
Article 386
An employee may apply to a labor dispute committee within three months from the date on which he learned or should have known about the violation of his right.
If the deadline is missed for valid reasons, the labor dispute commission may restore it and resolve the dispute on the merits.
Article 387
The employee's application received by the commission on labor disputes is subject to mandatory registration by the said commission.
The Labor Disputes Commission is obliged to consider an individual labor dispute within ten calendar days from the date the employee submits an application.
The dispute is considered in the presence of the employee who submitted the application, or a representative authorized by him. Consideration of the dispute in the absence of the employee or his representative is allowed only upon a written application of the employee. If the employee or his representative fails to appear at the meeting of the specified commission, the consideration of the labor dispute is postponed. In the event of a second non-appearance of an employee or his representative without good reason, the commission may decide to withdraw the issue from consideration, which does not deprive the employee of the right to file an application for consideration of a labor dispute again within the period established by this Code.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
The Labor Disputes Commission has the right to summon witnesses to the meeting and invite specialists. At the request of the commission, the employer (his representatives) is obliged to submit the necessary documents to the commission within the time period established by the commission.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
A meeting of a labor dispute committee shall be considered competent if at least half of the members representing employees and at least half of the members representing the employer are present.
At a meeting of the commission on labor disputes, a protocol is kept, which is signed by the chairman of the commission or his deputy and certified by the seal of the commission.
Article 388
The commission on labor disputes makes a decision by secret ballot by a simple majority of votes of the members of the commission present at the meeting.
The decision of the commission on labor disputes shall indicate:
the name of the organization or the surname, name, patronymic of the employer - an individual entrepreneur, and in the case when an individual labor dispute is considered by the commission on labor disputes of the structural unit of the organization - the name of the structural unit, surname, name, patronymic, position, profession or specialty of the employee who applied to the commission ;
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
dates of application to the commission and consideration of the dispute, the substance of the dispute;
surnames, names, patronymics of the members of the commission and other persons present at the meeting;
Copies of the decision of the commission on labor disputes, signed by the chairman of the commission or his deputy and certified by the seal of the commission, are handed over to the employee and the employer or their representatives within three days from the date of the decision.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Article 389. Execution of decisions of the labor dispute commission
The decision of the commission on labor disputes is subject to execution within three days after the expiration of the ten days provided for appeal.
In case of non-execution of the decision of the commission on labor disputes within the prescribed period, the specified commission issues a certificate to the employee, which is an executive document. An employee may apply for a certificate within one month from the date of the decision of the labor dispute commission. If the employee misses the specified period for valid reasons, the labor dispute commission may restore this period. The certificate shall not be issued if the employee or the employer has filed an application for the transfer of the labor dispute to the court within the prescribed period.
(Part two as amended by Federal Law No. 90-FZ of June 30, 2006)
Based on the certificate issued by the labor dispute commission and presented no later than three months from the date of its receipt, the bailiff enforces the decision of the labor dispute commission.
If an employee misses the established three-month period for valid reasons, the labor dispute commission that issued the certificate may restore this period.
Article 390
If an individual labor dispute is not considered by the labor dispute commission within ten days, the employee has the right to transfer its consideration to the court.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
The decision of the commission on labor disputes may be appealed by the employee or the employer to the court within ten days from the date of handing him a copy of the decision of the commission.
If the deadline is missed for valid reasons, the court may restore this deadline and consider the individual labor dispute on the merits.
Article 391. Consideration of individual labor disputes in courts
The courts consider individual labor disputes at the request of an employee, employer or trade union defending the interests of the employee, when they do not agree with the decision of the labor dispute commission or when the employee goes to court, bypassing the labor dispute commission, as well as at the request of the prosecutor, if the decision of the labor dispute commission does not comply with labor law and other acts containing labor law norms.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Individual labor disputes are considered directly in the courts on the basis of applications:
of the employee - on reinstatement at work, regardless of the grounds for termination of the employment contract, on changing the date and wording of the reason for dismissal, on transferring to another job, on payment for the time of forced absenteeism, or on payment of the difference in wages during the performance of lower-paid work, about misconduct(inaction) of the employer in the processing and protection of personal data of the employee;
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
employer - on compensation by the employee for damage caused to the employer, unless otherwise provided by federal laws.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Individual labor disputes are also considered directly in the courts:
about refusal to hire;
persons working under an employment contract with employers - individuals who are not individual entrepreneurs, and workers of religious organizations;
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
individuals who believe they have been discriminated against.
Article 392
On the refusal to accept for consideration a complaint about a violation of constitutional rights by the provision of the first part of Article 392 due to the fact that the complaint does not meet the admissibility requirements, and the resolution of the issue posed in it is beyond the jurisdiction of the Constitutional Court of the Russian Federation, see the rulings of the Constitutional Court of the Russian Federation dated 12.07.2005 N 312-O and dated December 20, 2005 N 482-O.
The employee has the right to apply to the court for resolution of an individual labor dispute within three months from the day when he learned or should have learned about the violation of his right, and for disputes about dismissal - within one month from the date of delivery of a copy of the dismissal order to him or from date of issue of the work book.
The employer has the right to apply to the court for disputes on compensation by the employee for damage caused to the employer within one year from the date of discovery of the damage caused.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
If, for valid reasons, the deadlines established by the first and second parts of this article are missed, they may be restored by the court.
Article 393. Release of employees from legal expenses
When applying to the court with a claim on claims arising from labor relations, including non-fulfillment or improper fulfillment of the terms of an employment contract that are of a civil law nature, employees are exempted from paying duties and court costs.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Article 394
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
If the dismissal or transfer to another job is recognized as illegal, the employee must be reinstated in his previous job by the body considering the individual labor dispute.
The body considering an individual labor dispute makes a decision to pay the employee the average earnings for the entire period of forced absenteeism or the difference in earnings for the entire period of performing lower-paid work.
At the request of the employee, the body considering an individual labor dispute may limit itself to making a decision on the recovery in favor of the employee of the compensation specified in part two of this article.
If the dismissal is recognized as illegal, the body considering the individual labor dispute may, at the request of the employee, decide to change the wording of the grounds for dismissal to dismissal of their own free will.
If the wording of the grounds and (or) the reason for dismissal is recognized as incorrect or not in accordance with the law, the court considering an individual labor dispute is obliged to change it and indicate in the decision the grounds and reason for dismissal in strict accordance with the wording of this Code or other federal law with reference to the relevant article , part of an article, paragraph of an article of this Code or other federal law.
If the dismissal is declared illegal, and the term of the employment contract for the time the dispute is considered by the court has expired, then the court considering the individual labor dispute is obliged to change the wording of the grounds for dismissal to dismissal after the expiration of the employment contract.
If, in the cases provided for by this article, after declaring the dismissal illegal, the court decides not to reinstate the employee, but to change the wording of the grounds for dismissal, then the date of dismissal must be changed to the date of the decision by the court. In the event that by the time the said decision is made, the employee, after the disputed dismissal, has entered into an employment relationship with another employer, the date of dismissal must be changed to the date preceding the day the employee began working for this employer.
If the incorrect wording of the grounds and (or) reasons for dismissal in the work book prevented the employee from entering another job, then the court decides to pay the employee average earnings for the entire period of forced absenteeism.
In cases of dismissal without legal grounds or in violation of the established procedure for dismissal or illegal transfer to another job, the court may, at the request of the employee, make a decision to recover in favor of the employee monetary compensation for moral damage caused to him by these actions. The amount of this compensation is determined by the court.
Article 395. Satisfaction of monetary claims of an employee
If the body considering an individual labor dispute recognizes the employee's monetary claims as justified, they are satisfied in full.
Article 396. Execution of decisions on reinstatement at work
The decision on the reinstatement of an illegally dismissed employee at work, on the reinstatement of an employee illegally transferred to another job at the previous job, is subject to immediate execution. If the employer delays the execution of such a decision, the decision-making body issues a ruling on payment to the employee for the entire time of the delay in the execution of the decision of the average earnings or the difference in earnings.
Article 397
The reverse recovery from the employee of the amounts paid to him in accordance with the decision of the body for the consideration of an individual labor dispute, when the decision is canceled by way of supervision, is allowed only in cases where the canceled decision was based on false information provided by the employee or forged documents submitted by him.
Disagreements relating to the work of one particular employee and his employer form the concept of an individual labor dispute. The conflict of the whole team and its boss is considered by the conciliation commission or labor arbitration. Satisfaction of private interests lies within the competence of the bodies for individual labor disputes. They can be settled through the court or with the help of a special commission.
An individual labor dispute refers to situations of a purely personal nature. The issues of accrual, increase and issuance of salaries lie in such a plane. Their solution is possible only if there is a formally concluded contract. A conflict based on the employer's refusal to conclude an employment contract with an applicant or trainee without objective reasons is considered individual.
Types of labor disputes
Among the grounds that cause a conflict of labor interests are the following:
- Lack of contractual rights stipulated by labor legislation.
- Misunderstanding the essence of the regulations - intentionally or unintentionally.
- Imperfect legislation regarding the regulation of labor relations.
- Inappropriate use of the provisions of the Labor Code of the Russian Federation.
Conflicts arising on labor grounds are classified as follows:
- By origin: incorrect and correct application of references to normative acts;
- On the grounds: legal or not working conditions.
In the event of labor disputes, strikes are possible. You can get acquainted with all the nuances of their conduct in accordance with all the rules in the article at the link.
Pre-trial settlement
Conflicts of a private nature, their features, the legal status of participants, the nuances of registration and ways to reach consensus are covered in detail in the Labor Code of the Russian Federation.
The procedure for consideration is detailed in Art. 384 of the Labor Code of the Russian Federation. A commission specially created for this purpose is engaged in upholding the rights of both parties. Both parties to the conflict and their representatives have the right to convene it.
The initiative is expressed in writing and sent to the opposing party. She is obliged to send her representative within 10 days. The employer has the right to appoint his representative without consulting anyone. The employee is obliged to initiate the election of a representative at the meeting and be guided by the decision of the majority.
The work of such a commission is strictly regulated by law. Hierarchy is obligatory: chairman, deputy, secretary.
Regulations of the Commission
The law allocates only 10 days for consideration of an individual labor dispute. The employee himself or his authorized representative participates in the procedure. Without them, no one has the right to make a decision on behalf of the employee. In the absence of interested parties, the meeting is postponed. Repeated failure to appear is a valid reason for denial of consideration. Will have to reapply.
The main condition for the commission's work is objectivity. In order to ensure it, members of the commission have the right to use in their work testimonies, conclusions of competent specialists and other persons related to this dispute and the emergence of a disputable situation.
The course of consideration is fixed in the protocol. It has legal force only when it is certified by the signature of the chairman and the seal of the commission. Its members express their position by secret ballot. The decision is the final document of the commission's work. It should include the following items:
- Complete information about the company/employer;
- Date of the statement of the injured party;
- Full details of the applicant (name, position);
- Reasons for the dispute;
- The essence of the conflict situation;
- Information about members of the commission;
- A decision based on regulations;
- Result of the secret ballot.
Each party to the conflict is provided with a copy of the decision - it can be obtained within 3 days from the date of issue. Upon agreement with it, 10 days are allotted for execution following the date of the decision. If you disagree, you can appeal.
Jurisdiction of individual labor disputes
It is not forbidden to resolve the dispute through the court. You can file a lawsuit against an employee or employer without going through the labor commission. But, the most common reason for initiating claims is her violation of the 10-day deadline for considering a complaint. Another reason is disagreement with her decision. Filing a claim for the second reason will require a copy of this decision. If it does not comply with the current norms of the law, the appeal to the court is initiated by the prosecutor.
When considering a claim in court, representatives of both parties and witnesses are invited to clarify the circumstances.
Next, we examine the system of bodies considering individual labor disputes. Individual labor disputes, as mentioned above, are considered by labor dispute commissions and courts. That is, disagreements between the subjects of an employment relationship on the application by the employer of labor legislation or a labor agreement that have not been settled by the employer and the employee are resolved by the jurisdictional authorities: the CCC and the court within the limits of the rights granted to them.
The question of where a specific individual dispute should be resolved - in the CCC or in court, is determined in accordance with their jurisdiction.
The jurisdiction of labor disputes is the distribution of competence to resolve them between bodies that have the right to consider labor disputes and make legally binding decisions for their subjects. Correct Definition The jurisdiction of a specific labor dispute plays an important practical role, since the resolution of the dispute by an incompetent body has no legal force and cannot be enforced.
Thus, speaking about the consideration of an individual labor dispute by the judicial authorities, first of all, it is necessary to dwell on their competence, that is, determining the range of labor disputes that they resolve.
The judiciary considers individual labor disputes in several cases. First of all, they act as the second body that considers the dispute, if the employee or employer does not agree with the decision of the CCC, and appeal against it, which is enshrined in Article 390 of the Labor Code of the Russian Federation. In addition, on behalf of the employee and in his interests, the decision of the CCC can also be appealed by the trade union (Article 391 of the Labor Code of the Russian Federation).
There is a ten-day period for appeal, calculated from the date of delivery of copies of the commission's decision. Missing the deadline is not grounds for refusing to accept an application. A deadline missed for valid reasons may be restored by the court. If the deadline for applying to the court is missed without a good reason, the court, having considered the case on the merits, refuses to satisfy the claim due to the missed limitation period.
Labor Code indicates the possibility of appealing against the decision of the commission on labor disputes only in court. However, it is necessary to keep in mind the existence of a corps of justices of the peace in the regions, it is they who consider cases after the commission on labor disputes, since all disputes arising from labor relations are assigned to their jurisdiction, with the exception of reinstatement cases and cases on the resolution of collective labor disputes ( article 23 of the Code of Civil Procedure of the Russian Federation).
Another case, when a labor dispute is considered in court, is related to the non-observance by the labor dispute commission of the term for considering the dispute. An employee can exercise his right to transfer an individual legal dispute to court if the commission has not considered it within ten days (Article 390 of the Labor Code of the Russian Federation). On this occasion, it should be noted that the specified right of the employee should also cover the possibility of applying to a justice of the peace.
The possibility of transferring the consideration of the dispute to the court (to the justice of the peace) is provided to ensure quick and effective protection of the rights and legitimate interests of the employee. He is not obliged to wait for the decision of the commission in the event that it violates the established term for the consideration of a labor dispute, even if the consideration of the case has begun.
The deadline for applying to the court (to the justice of the peace) when postponing the consideration of the dispute is not established. Probably, the employee should do this immediately after he became aware of the commission's violation of the ten-day period. However, in any case, it is necessary to comply with the general terms established by Article 392 of the Labor Code of the Russian Federation, that is, three months from the day when the employee found out or should have found out about the violation of his right.
An employee may apply for consideration of an individual labor dispute to the court (to a magistrate), if the commission on labor disputes for some reason has not been established in the organization.
In accordance with Article 391 of the Labor Code of the Russian Federation, an employee can go to court (to a justice of the peace), "bypassing the commission on labor disputes." Such an indication of the law, in essence, establishes an alternative jurisdiction of individual labor disputes, in other words, the employee has the right to choose a body that will consider his disagreements with the employer. This may be a commission on labor disputes or a court.
Considering that Article 46 of the Constitution of the Russian Federation guarantees everyone the right to judicial protection and the Code does not contain provisions on the obligatory preliminary out-of-court procedure for resolving a labor dispute by a labor dispute commission, a person who considers that his rights have been violated, at his own discretion, chooses a method for resolving an individual labor dispute and has the right to either initially apply to the commission on labor disputes (except for cases that are considered directly by the court), and in case of disagreement with its decision - to the court within ten days from the date of delivery of a copy of the commission’s decision to him, or immediately go to court (Article 382 , part 2, article 390, article 391 of the Labor Code of the Russian Federation)
If an individual labor dispute is not considered by the labor dispute commission within ten days from the date of filing the application, he has the right to transfer its consideration to the court (part 2 of article 387, part 1 of article 391 of the Labor Code of the Russian Federation).
At the same time, earlier (Articles 382-386 of the Labor Code of the Russian Federation) it was not indicated that an employee can apply for resolution of an individual labor dispute to a commission or to judicial authorities, that is, a two-stage consideration of a labor dispute was supposed - first in a commission, and then in court (for with the exception of cases falling directly within the jurisdiction of the court).
This contradiction can be overcome by interpreting the norm of Article 391 of the Labor Code of the Russian Federation. The first interpretation: this article refers to cases where the organization has not established a commission on labor disputes. In such a situation, the previous legislation allowed for recourse to the court. This is the "narrow approach". The second interpretation is based on a literal reading of the norm of Article 391 of the Labor Code of the Russian Federation, which says that the employee has the right to go to court, “bypassing the commission on labor disputes”, that is, the commission in the organization has been created and is operating, but the employee has the right to immediately file an application with court (justice of the peace).
Considering the procedure for resolving individual labor disputes, one cannot help but dwell on a serious novelty introduced by the Labor Code. On a number of issues, employees and their representatives have the right to appeal against the actions of the employer not only to the judicial authorities, but also to the Federal Labor Inspectorate. Such cases include, in particular, discrimination in the sphere of labor (Article 3 of the Labor Code of the Russian Federation); disagreements on the issues of investigation, registration and accounting of accidents at work (Article 231 of the Labor Code of the Russian Federation); appeal against disciplinary sanctions (Article 193 of the Labor Code of the Russian Federation); illegal local act(Article 372 of the Labor Code of the Russian Federation); illegal dismissal of a trade union member (Article 373 of the Labor Code of the Russian Federation).
Thus, the employee independently determines by which body and, consequently, in what order his disagreements with the employer will be considered. Concerning " weak side» labor relations receives certain advantages. But it should be noted that the possibility of applying for resolution of disagreements to the bodies of the Federal Labor Inspectorate practically introduces a parallel structure for the consideration of individual labor disputes in an administrative manner. This can hardly be considered theoretically substantiated, since, firstly, the supervisory authorities are entrusted with the performance of tasks that are unusual for them. Secondly, the creation of duplicating structures for resolving individual labor disputes destroys the clarity of delimitation of the competence of various government agencies ensuring the protection of the labor rights of workers. Thirdly, the existence of two equally legitimate ways to resolve disagreements that have arisen between an employee and an employer will inevitably lead to the formation of contradictory law enforcement practice.
Having considered the competence of the judiciary to resolve individual labor disputes, it is necessary to move on to the established procedure for applying to these bodies, and the dispute resolution procedure.
Before applying to the judicial authorities, it is necessary to determine the jurisdiction of labor cases. It is determined in accordance with the provisions of civil procedural legislation. By virtue of Articles 28, 29 of the Code of Civil Procedure of the Russian Federation, claims for the restoration of labor rights can be brought at the location of the organization or at the place of residence of the plaintiff (employee).
According to paragraph 2 of article 54 of the Civil Code of the Russian Federation, the location of a legal entity is determined by the place of its state registration, unless otherwise specified in its constituent documents in accordance with the law. According to paragraph 2 of Article 8 of the Federal Law of August 8, 2001 “On State Registration of Legal Entities”, state registration of a legal entity is carried out at the location indicated by the founders in the application for state registration of a permanent executive body, in the absence of such an executive body - at the location of another body or person entitled to act on behalf of a legal entity without a power of attorney. All necessary information about legal entities in the Russian Federation are included in the state register in accordance with the rules of Article 5 of the Federal Law “On State Registration of Legal Entities”.
With regard to filing a claim at the place of residence of the plaintiff. In accordance with Article 20 of the Civil Code of the Russian Federation and Article 2 of the Law of the Russian Federation of June 25, 1993 "On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and place of residence in the Russian Federation", the place of residence of a citizen is recognized as a place where a citizen permanently or predominantly lives in a residential building, apartment, hostel, etc. as an owner, under a lease (sublease) agreement, or on other grounds provided for by law.
Now let's dwell on the jurisdiction of civil cases arising from labor relations, the justice of the peace, as well as the district court. According to Article 23 of the Code of Civil Procedure of the Russian Federation, the jurisdiction of the justice of the peace includes cases of individual labor disputes, with the exception of cases of reinstatement and cases of resolving collective labor disputes. In particular, he considers cases on claims: on changing the date and wording of the reasons for dismissal; on the recognition of the transfer to another job as illegal; about the withdrawal disciplinary action; on the recovery from the employee of damage caused to the property of the enterprise, institution, organization.
Supreme Court clarified that the justice of the peace does not have jurisdiction not only in cases of reinstatement, but also in cases derived from claims for reinstatement. In particular, they include cases of compensation for moral damage caused by illegal dismissal.
Cases on property disputes arising from labor relations are within the jurisdiction of a justice of the peace, regardless of the value of the claim.
By virtue of Article 24 of the Code of Civil Procedure of the Russian Federation, civil cases that do not fall within the competence of a justice of the peace are considered in the first instance by a district court, unless they are assigned by federal law to the jurisdiction of other federal courts of general jurisdiction. The district court also acts as a direct higher authority to verify the decisions and rulings of the justices of the peace that have not entered into legal force, in the event that they are appealed on appeal by the persons participating in the case. Under certain circumstances, cases referred by law to the competence of a justice of the peace are considered in the first instance by a district court. In particular, according to Part 2 of Article 12 of the Federal Law of December 17, 1998 “On Justices of the Peace in the Russian Federation”, if a justice of the peace is not appointed or elected.
Thus, having considered the competence of the judiciary to consider individual labor disputes, as well as the issue of determining the jurisdiction of labor cases, we will proceed directly to the procedure for resolving an individual labor dispute in the court of first instance.
