§ 1. The concept, types and causes of labor disputes

Labor disputes and the procedure for their resolution are one of the most important forms of self-defense of workers, since without the initiative of the employee, his claim, an individual labor dispute cannot arise, and without the initiative of the collective of workers or their representative (trade union) there is no collective labor dispute.

The concept of labor disputes and the dynamics of their occurrence. The emergence of labor disputes, as a rule, is preceded by labor offenses in the sphere of labor, which are the direct cause of the dispute.

A labor offense is a guilty failure to perform or improper performance by an obligated subject of his labor duties in the field of labor and distribution, and, consequently, a violation of the right of another subject of this legal relationship. If the actions of the obligated subject were legal, and the other subject considers them unlawful, then a labor dispute may also arise here, although there is no offense. The presence of a labor offense is established by the body considering the labor dispute, which is called jurisdictional.

The labor offense itself is not yet considered a labor dispute. Its different assessment by the subjects is a disagreement that the subjects themselves can resolve. Such a disagreement between the subjects of labor law can develop into a labor dispute only if it is submitted to the jurisdictional body, i.e., the action (inaction) of the obligated subject that violated the labor law of another subject is challenged in this body. Therefore, it is necessary to distinguish between a labor dispute and a disagreement that has not been challenged in the jurisdictional bodies.

So, if the employer dismissed the pregnant typist under paragraph 2 of Art. 83 of the Labor Code, then there is a labor offense (Article 261 of the Labor Code prohibits the dismissal of pregnant women) and there is a disagreement, since the typist considered the dismissal wrong, but did not challenge it in court, but went to another job. Consequently, a labor dispute did not arise here, although there was a labor offense and disagreement about it. Thus, a labor offense, and then its different assessment by the subjects of a disputed legal relationship (disagreement), as a rule, precedes a labor dispute, making up the dynamics of its occurrence. The employee can resolve the disagreement independently or with the participation of

the trade union body representing his interests in direct negotiations with the employer (administration). A labor dispute arises when the disagreement is transferred to the resolution of the jurisdictional body. The dynamics of the emergence of a labor dispute is as follows:

1) labor offense (actual or in the opinion of a competent subject);

2) its different assessment by the subjects of the legal relationship (disagreement);

3) an attempt to resolve the disagreement by the parties themselves during direct negotiations;

4) appeal to the jurisdictional body to resolve the disagreement - a labor dispute.

A labor dispute may also arise without an offense if the subject of labor law (employee, trade union body, labor collective) applies to the jurisdictional body, challenging the refusal of another subject to establish new or change existing socio-economic conditions of work and life.

Therefore, labor disputes are called disagreements between the subjects of labor law on the application of labor legislation or on the establishment of new working conditions in partnership, received for resolution by the jurisdictional body. This concept shows the difference between labor disputes and disagreements resolved by the disputing parties themselves, and indicates that labor disputes arise not only from an employment legal relationship, but also from other legal relations directly related to it, including legal relations of a collective organizational and managerial nature.

The Labor Code (Article 381) enshrines the concept of an individual labor dispute. The second part of this article also states that an individual labor dispute will be a dispute between an employer and a person who was in 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 latter refuses to conclude such an agreement. In the concept we have previously given, all of those indicated in the second part of Art. 381 persons are subjects of labor law, since a dismissed employee is a subject of a legal relationship in a labor dispute on reinstatement, and a person appealing against a refusal to hire is also a subject of a legal relationship for employment.

Article 37 of the Constitution of the Russian Federation recognizes the right to individual and collective labor disputes using the methods of their resolution established by federal law, including the right to strike. Article 46 of the Constitution of the Russian Federation provides that everyone is guaranteed judicial protection of his rights and freedoms, that the decisions and actions (inaction) of the bodies and must

responsible persons may be challenged in court. These provisions of the Constitution of the Russian Federation are the basis for the procedure for resolving all labor disputes.

Federal Law of January 12, 1996 "On trade unions, their rights and guarantees of activity" in Art. 23 provides for the right of trade unions to protect the interests of workers in labor dispute resolution bodies. To protect social and labor rights, trade unions can create legal services and consultations. Judicial protection of the rights of trade unions is guaranteed (Article 29).

It is impossible to agree with the concept of labor disputes given in the textbook "Labor Law" (2000), since, firstly, in it the subjects of labor disputes are limited only to the employee and the employer and other possible subjects of labor law are not taken into account; secondly, it is not indicated that a labor dispute is a disagreement submitted for consideration by a jurisdictional body, i.e. in this concept there is no difference between a disagreement and a labor dispute, since in order to become a labor dispute, it must be declared (be submitted for consideration) to the jurisdictional body.

In Article 381 of the Labor Code, the concept of an individual labor dispute is defined as unresolved disagreements between an employee and an employer, declared to a labor dispute resolution body. But in this concept, only employees and employers are indicated as subjects of the dispute and all subjects of labor law are not named, which, in our opinion, is a shortcoming of this definition.

From the indicated dynamics of the emergence of labor disputes, one can see their connection with labor offenses, which in most cases are a pretext for disagreements, and then for labor disputes.

Labor offenses are at the same time violations of both the rule of law at work and the principle of legality in the sphere of labor. The Constitution of the Russian Federation enshrines this principle: public authorities, local governments, officials, citizens and their associations are required to comply with the Constitution and laws (Article 15). The Constitution provides that the protection of the rights and freedoms of citizens is the duty of all state bodies, public organizations and officials, and enshrines the right of citizens to judicial protection. Law and democracy are interrelated, are integral features of each other.

Genuine democracy cannot exist outside the law. It is incompatible with anarchy.

Labor Law: Textbook / Ed. O. V. Smirnova. M.: Prospekt, 2000. S. 373.

In a rule of law state, it is required to ensure the rights and freedoms of citizens, including in the sphere of labor, the rule of law and social justice, the equal responsibility of each worker, their labor collectives for the work assigned.

At present, in many industries of the country, the number of labor offenses has increased, especially when transferring to another job and laying off workers. They have become more frequent, especially in relation to women and minors, who are the first to be fired. This is facilitated by the manifestation of group egoism in the workplace, which does not take into account the public interests, legal rights and benefits of these categories of workers, as well as the ever-deteriorating propaganda of labor legislation and its assimilation by employers, many of whom simply ignore it and are not responsible for it. In such a situation, the protective function of trade unions at all levels and especially at the level of the organization should be activated.

The presence of labor disputes in organizations always reflects the level of compliance with labor legislation, legality and the degree of activity of trade unions in the implementation of trade union control over labor legislation, which makes it possible to immediately respond to labor offenses. Trade unions and the legal service should promote labor legislation, train workers to "fight culturally for the rule of law." Federal Law "On trade unions, their rights and guarantees of activities" in Art. 23 provided for the right of trade unions to protect the interests of workers in labor dispute resolution bodies. They can participate in the settlement of collective labor disputes (art. 14). Trade unions have the right to organize and conduct strikes, street marches, demonstrations, picketing and other collective actions, using them as a means of protecting the social and labor rights and interests of workers. In a state governed by the rule of law, it is necessary to create due legal protection of a person in production. This is the aim of the procedure established by law for resolving labor disputes.

Labor disputes are often confused with disputes about pensions, benefits and services, as well as disputes from procedural legal relations for their purpose, which do not belong to the branch of labor law and are regulated by the branch of social security law. Labor disputes are disputes from legal relations within the scope of labor legislation. They dispute disagreements on labor rights and performance of labor duties in the jurisdictional body. Federal Law of November 23, 1995 “On the procedure for resolving collective labor disputes”1

1 SZ RF. 1995. No. 48. Art. 4557.

and Ch. 60 and 61 of the Labor Code already in their titles provide for labor disputes, the procedure for resolving which is established by them to protect individual or collective labor rights.

A labor dispute is a dispute about the implementation of a right provided for by labor legislation, collective and other labor agreements or the establishment of a new labor subjective or collective right (non-claim disputes).

Types of labor disputes. All labor disputes can be classified on three grounds: by the disputing subject; by the nature of the dispute; in terms of disputed relationship.

According to the disputing subject, all labor disputes are divided into individual and collective. In individual disputes, the subjective rights of a particular employee, his legitimate interest are disputed and protected, and in collective disputes - the rights, powers and interests of the entire labor collective (or part of it), the rights of the trade union body as a representative of workers of this production on labor, life, culture. In collective disputes, the rights of labor collectives, their vital interests are protected from the strong-willed dictates of employers, administrative and managerial apparatus, including ministries, departments as a higher management body for this labor collective. Collective disputes can arise from three legal relations: employees of the organization with the employer, its administration, including the higher management body; a trade union body with the administration, from social partnership relations, representatives of employees and employers with the participation of authorities at the federal, regional, sectoral and territorial levels.

By the nature of the dispute, all labor disputes are divided into:

1) disputes about the application of the norms of labor legislation established by it, collective or labor agreements, social partnership agreements on rights and obligations. Such disputes can arise from all legal relations in the sphere of labor law, i.e. both from labor and from all other derivatives of them (for example, from relations on liability). In such disputes, the violated right of the employee or trade union body or the authority of the labor collective is protected and restored. They are called "disputes about rights" abroad;

2) disputes about the establishment of new or changes in existing socio-economic conditions of work and life, not regulated by law. This type of disputes can arise from four legal relations: a) from labor - on the establishment of new working conditions for the employee in the local order (a new vacation period according to the vacation schedule, a new tariff category); b) a trade union body with an employer, its administrative

stration (for example, a dispute when they approve the vacation schedule, the distribution of housing); c) the labor collective (its bodies) with the employer, its administration (for example, a dispute between the STK and the administration in resolving certain issues of enterprise management); d) trade unions as representatives of employees with representatives of employers, their associations at various levels of social partnership relations. They are called "disputes of interest."

The Labor Code regulates the procedure for resolving individual labor disputes between an employee and the employer, its administration, as well as the procedure for considering collective labor disputes (Chapters 60 and 61) both on rights and interests.

Collective disputes may arise from legal relations: 1) between the labor collective and the employer, including the higher management body; 2) a trade union body with an employer, its administration; 3) social partnership legal relations between representatives of employees and employers with the participation of authorities at the federal, sectoral, regional and other levels.

According to legal relations from which a dispute may arise, all labor disputes are divided into disputes from legal relations:

1) labor (their absolute majority);

2) for employment (for example, a disabled person not accepted by reservation or another person with whom the employer is obliged to conclude an employment contract);

3) on supervision and control over compliance with labor legislation and labor protection rules;

4) for the training of personnel and advanced training of workers in production;

5) for compensation of material damage by the employee to the enterprise;

6) on compensation by the employer of damage to the employee in connection with damage to his health at work or violation of his right to work;

7) a trade union body with an employer on issues of labor, life, culture;

8) a team of employees with an employer;

9) social partnership relations at four higher levels.

The classification of labor disputes according to the three indicated grounds is necessary in order to correctly determine its jurisdiction for each labor dispute (it is an individual or collective dispute, a dispute on the application of labor legislation or on the establishment of new working conditions, changing existing ones, and from what legal relationship it arose).

Causes of labor disputes are negative factors that cause a different assessment by the disputing parties of the exercise of a subjective labor right or the performance of a labor obligation.

The conditions for the emergence of labor disputes are also negative factors that contribute to a greater number of labor disputes on the same issues or significantly exacerbate the dispute that has arisen. But without reasons, the conditions themselves do not cause a labor dispute.

The Service for the Settlement of Collective Labor Disputes “identifies and summarizes the causes and conditions for the emergence of collective labor disputes, prepares proposals for their elimination” (Article 1 of the Law on Collective Labor Disputes), which is aimed at eliminating both the causes and conditions of labor disputes and their prevention.

The causes of labor disputes are two subjective negative factors (features) of the disputing parties (or their representatives in a collective dispute), as a result of which the actual circumstances and actions are assessed differently:

1) the lag of individual consciousness from the public, its deviation from the norms of generally established morality (on the part of not only representatives of the administration, management bodies, but also individual workers who violate labor and production discipline, carelessly treat the entrusted property of the enterprise, demand unearned pay or do not rely on good for them);

2) ignorance or poor knowledge of labor legislation by both individual production managers and many employees and their representatives, i.e. low legal culture, legal awareness.

The conditions of labor disputes are objective in relation to the disputing party, reflecting shortcomings in the work of a particular production, industry or shortcomings and gaps in labor legislation. Terms of labor disputes can be of two types: industrial and legal. They are connected with the organization of production or law-making - with the adoption of the rule of law, therefore, in relation to the disputing party, they exist objectively in our life. At present, with the transition to market relations, a third, already objective reason has appeared - a severe crisis in our national economy and production.

Law schools in the USA, England and other countries study the theory of conflicts (conflictology); in the USA there are social centers for the study and resolution of conflicts, which train conflict managers.

In recent years, sociologists and psychologists have been developing a theory of conflicts (conflictology) in our country. Lawyers, unfortunately, have not begun to develop it.

Production conditions reflect shortcomings in the organization of labor and work in a given production, in an industry, for example, irregular work or poor organization of work.

The conditions of labor disputes of a legal nature are caused by shortcomings in law-making, in the adoption, creation of labor legislation (not quite clear and precise formulation of individual norms; gaps in the legislation that allow different interpretations of the norms by the disputing parties; a certain lag of individual norms from the rapidly developing practice of organizing labor and distribution, etc.).

But if there are no reasons for labor disputes2, then even if the specified conditions (circumstances) are present, a labor dispute does not arise. Prevention of labor offenses, i.e. their prevention, taking into account the specific conditions and personality of the employee, is at the same time the prevention of labor disputes. This is the responsibility of the administration, trade union bodies and legal services of the organization. In terms of its sphere of influence, it is common to all workers and employees. But it can also be special for certain categories of workers, for example, for minors, as they most often violate labor discipline, for business managers. Branch, local, local such prevention is for the workforce.

§ 2. Regulations and labor review bodies

The Constitution of the Russian Federation in Art. 6, 7, 15, 17-19, 32, 37, 45, 46, 48, 128 contains the basics of the procedure for considering labor disputes, which are specified in other laws.

The procedure for considering individual labor disputes is regulated by Ch. 60 (Art. 381-397) TC.

The procedure for resolving collective disputes is regulated by Ch. 61 (Art. 398-418) of the Code and the Federal Law of November 23, 1995 "On the procedure for resolving collective labor disputes"3.

See: Khramov V. O. Methods of cognition and overcoming conflict situations in the production team. M., 1977; Kichanova I. M. Conflicts: for and against. M., 1978; Borodkam F. M., Koryak N. M Attention: conflict. Novosibirsk, 1989.

2 On the causes of labor conflicts in foreign countries with developed economies, see: Kiselev I.L. Labor conflicts in a capitalist society: social and legal aspects. M., 1978.

3SZ RF. 1995. No. 48. Art. 4557.

The procedure for considering individual labor disputes established by the Labor Code (Chapter 60) does not apply to disputes about early dismissal of employees of public organizations and other associations of citizens from elective paid positions by decision of their bodies, to disputes of judges, prosecutors, their deputies and assistants, as well as investigators prosecutor's office and civil servants on issues of transfer, dismissal (including changing the date and formulation of the reasons for dismissal), payment for forced absenteeism during reinstatement and imposition of disciplinary sanctions on them. Features of consideration of disputes of these categories of ""employees" are established by other legislative acts, in particular by special laws. But civil servants can apply for dispute resolution not only to the relevant state organizations, but also to the court, since Art. 9 of the Federal Law "On the Fundamentals of the Civil Service of the Russian Federation" establishes an alternative jurisdiction of disputes of their choice.

When considering labor disputes, the court applies the relevant norms of not only labor, but also civil procedural law (Articles 3-7, 16, 22, 131, 148, 155, 198 and 211 of the Code of Civil Procedure of the Russian Federation).

Of great importance for the uniform application of legislation in the consideration of individual labor disputes are the guiding decisions of the Plenum of the Supreme Court of the Russian Federation. They are not sources of law, but provide guidance to the courts on the uniform application of labor law in specific cases. In many cases, these regulations fill gaps in labor legislation. See, for example, resolutions of the Plenum of the Supreme Court of the RSFSR: dated December 25, 1990, No. 6 “On Certain Issues Arising in the Application of the Legislation Regulating the Labor of Women by the Courts”, ed. dated December 22, 1992 No. 19 with subsequent amendments and additions1; dated June 20, 1973 No. 7 “On some issues arising when the courts of the Russian Federation apply the legislation on youth labor” with subsequent amendments and additions2; dated December 20, 1994 No. 10 “Some Issues of Application of the Legislation on Compensation for Moral Damage” with subsequent amendments and additions3; dated March 1, 1983 No. 1 “On some issues of the application by the courts of the law

See: Collection of Resolutions of the Plenum of the Supreme Court of the Russian Federation. 1961-1996. M., 1997. S. 100; Bulletin of the Supreme Court of the Russian Federation. 1998. No. 3. 2 See: Collection of resolutions of the Plenum of the Supreme Court of the Russian Federation. 1961-1996. S. 29.

See ibid. S. 167.

the government governing the liability of employees for damage caused to an enterprise, institution, organization” with subsequent amendments and additions1; dated December 22, 1992 No. 16 “On some issues of application by the courts of the Russian Federation of legislation in resolving labor disputes” with subsequent amendments and additions2. These decisions of the Plenum of the Supreme Court of the Russian Federation (RSFSR) are valid to the extent that they do not contradict

Labor Code.

For the application of labor law norms in resolving labor disputes, the relevant decisions of the Constitutional Court of the Russian Federation, as well as generalizations of judicial practice in labor cases, are of certain importance.

Jurisdictional bodies considering individual labor disputes are labor dispute commissions (CTC) and courts.

KTS are formed at the initiative of employees and (or) the employer from an equal number of representatives of employees and the employer. Representatives of employees are elected by the general meeting (conference) of employees of the organization or delegated by the representative body of employees with subsequent approval at the general meeting. Representatives of the employer are appointed in the KTS by the head of the organization (Article 384 of the Labor Code). By decision of the general meeting, CCCs can be formed in separate divisions of the organization. These CCCs are elected by the labor collectives of the structural divisions and act on the same basis as the CCCs of the organization.

Depending on the body, the following types of consideration of individual labor disputes are distinguished: KTS - by the body of the labor collective;

judicial;

higher bodies for certain categories of workers (judges, etc.) and the federal labor inspectorate.

Each of the types of labor dispute proceedings is independent. One and the same dispute can go through two types of proceedings in succession: in the CCC and in court (if the disputing party, not satisfied with the decision of the CCC, so wishes). Such a sequential procedure (starting with the CCC as the primary mandatory body) is usually called the general one, in contrast to other cases where the dispute is resolved either directly in court or in a higher body.

1 Collection of decisions of the Plenum of the Supreme Court of the Russian Federation. 1961-1996 C 5

"Bulletin of the Supreme Court of the Russian Federation 1993 No. 3, 1997 No. 1, 1998 No. 3

All labor dispute resolution bodies are empowered by the state. Therefore, their decisions are binding and do not need special approval, i.e. they are final (if not appealed).

According to the Federal Law "On the procedure for resolving collective labor disputes" and Ch. 61 of the Labor Code, the bodies considering these disputes are: conciliation commissions created for each such dispute; intermediary; labor arbitration.

Procedural and procedural legal relations for "resolving labor disputes" is a legal relationship between the relevant jurisdictional body and the participants in this dispute. Procedural legal relations precede, as a rule, procedural relations (on receiving an application to a jurisdictional body, procedural actions of a judge in preparing a court session to resolve a dispute, etc.). e) They arise in all types of consideration of individual labor disputes from the moment the interested party applies to this jurisdictional body. The basis for their occurrence is the filing of an application, the acceptance of this case for consideration. Consideration of the dispute itself is a procedural relationship.

Procedural legal relationship arises between this body, on the one hand, and the participant in the dispute, on the other. Each person participating in the dispute resolution case (disputing parties or their representatives, witnesses, experts) is in a procedural legal relationship only with the body considering this dispute, i.e. this person has procedural rights and bears procedural obligations only in relation to this jurisdictional body. For different bodies that consider the dispute, the nature of the procedural legal relationship depends on which law regulates the consideration process.

In various types of labor disputes, three types of procedural legal relations arise: labor procedural, civil procedural and administrative procedural. Each is determined by the jurisdictional body that considers the labor dispute. And one dispute can be associated with two types of procedural legal relations when it is sequentially considered in the CCC, when labor procedural legal relations arise, and when the dispute is transferred to the court, civil procedural legal relations.

Labor procedural legal relations are relations regulated by the norms of labor law for the consideration of labor disputes in the CCC, the conciliation commission, with the participation of an intermediary, in labor arbitration, i.e. this is the legal connection of the jurisdictional body with the disputing parties and other participants in the dispute, regulated by the norms of labor law.

The content of procedural legal relations is the legal relationship of this jurisdictional body with the participants in the dispute, in which the subjects of the legal relationship have certain mutual procedural rights and obligations. In the implementation of these rights and obligations, the entire process of considering a labor dispute takes place, when the jurisdictional body applies the norms of substantive labor law in resolving the dispute on the merits, exercising its authority to make a decision on the dispute; after that, these procedural legal relations are terminated. But then other legal relations may arise, also of a procedural nature - for the enforcement of decisions on an individual dispute, if they are not executed voluntarily. By their nature, they are all protective legal relations, not regulatory ones.

But the dispute in all these procedural relations is resolved on the basis of the norms of substantive labor law.

All types of labor disputes are a process, i.e. a special form of application of labor law norms by an authorized jurisdictional body when considering labor disputes, when it can also apply coercive force of the state to an obligated disputing subject guilty of violating the law this duty. Thus, the jurisdictional body in the process of considering the dispute, having a legal connection with its participants through procedural legal relations, establishes a labor offense and issues, by the authority of the state, power acts (decisions, resolutions, agreements) of individual or collective significance. Each of the three types of procedural legal relations for the consideration of labor disputes (labor, civil and administrative) is determined by the jurisdictional body that considers the dispute.

Thus, the type of procedural legal relationship depends on the body considering the labor dispute, and not on the dispute.

§ 3. Principles for adjudication of labor disputes

Principles of consideration of labor disputes. Unlike the basic principles of labor law, which briefly reflect the content of the norms of all labor legislation, the principles for considering labor disputes are characteristic features of a particular institution of labor law. Briefly, they determine the very procedure for considering labor disputes, its organizational structure and the actions of the subjects of procedural legal relations in it.

The principles of the procedure for considering labor disputes are the main provisions that reflect the essence of the norms of this institution of labor law, which determine the essential characteristic features of this procedure and the direction of development of the system of its norms. AT

In our country, the procedure for considering labor disputes is democratic, simple, transparent, convenient and accessible to every employee. It allows you to fully, quickly, free of charge resolve to the end any labor dispute that has arisen and restore violated labor rights, the legitimate interests of workers.

The principles for considering labor disputes are: 1) the democracy of the order, that is, the participation of the broad masses of workers in resolving disputes; 2) the simplicity of the procedure, i.e. its free of charge, availability and convenience of applying to jurisdictional bodies with a labor dispute; 3) legality, publicity, objectivity and completeness of the study of evidence in disputes; 4) speed of dispute resolution; 5) ensuring the real execution of a decision on a labor dispute, the restoration of violated labor rights. Let's take a closer look at each of these principles.

Democracy, the participation of workers through trade unions, labor collectives in the resolution of disputes. Elected members of the labor collective participate in the CCC from employees. Collective labor disputes are considered in the conciliation commission with the participation of representatives of the labor collective or trade union. The composition of labor arbitration is completed by agreement of representatives of the labor collective or trade union with the employer, administration. Representatives of trade unions can act in court in defense of the interests of workers (Articles 42, 44 of the Code of Civil Procedure of the Russian Federation), as well as in a higher body.

Free, accessible and convenient for workers to apply to a jurisdictional body with a labor dispute. Employees do not waste much time and do not incur any material costs to resolve labor disputes. All jurisdictional bodies are close to workers. The dispute can be resolved in the KTS in the same organization where the employee works, and during non-working hours for him. Conciliation commissions are located directly at the production site and consist of employees of this production. The labor dispute court is located in the same area where the worker is employed. Collective labor disputes are considered by the conciliation commission and labor arbitration also at the production site of the given labor collective and always free of charge.

When filing a claim in a labor dispute, plaintiffs - workers and employees in all jurisdictional bodies are exempt from state duty and other expenses for the conduct of the case. Each worker and a representative of a trade union body, a labor collective can receive a labor

dispute free legal assistance in legal consultations of trade union bodies (superior). All this creates the convenience and accessibility of the protection of labor rights.

Legality, publicity, objectivity and completeness of the study of evidence in a labor dispute, and consequently, the legality of its resolution. The meetings of the CCC and the labor court are held openly and publicly.

Bodies considering labor disputes are obliged to resolve the dispute in accordance with the law, objectively and fully examine the case materials, request additional evidence if necessary, call witnesses, invite experts.

The speed of resolving labor disputes is ensured by shorter procedural and claim periods.

The procedural term is a period of time established by law for procedural actions in an initiated process:

terms of consideration in the CCC - no more than 10 days, in court - up to 10 days (and 7 days are given to prepare the case for consideration), in higher authorities - no more than a month from the date of acceptance of the application, in the conciliation commission and in labor arbitration - up to 5 working days from the date of their creation, and with the participation of an intermediary - up to 7 working days from the moment of his invitation (appointment);

the terms for issuing decisions, extracts from them, as well as for submitting comments on the minutes of the meeting are everywhere three days from the date of the decision on the labor dispute;

the deadlines for appealing decisions on a labor dispute of the KTS to the court, and the court to a higher court - 10 days from the date of receipt of a copy of the decision.

Some deadlines can be established and changed by the body considering the dispute, for example, the deadline for correcting a statement of claim or submitting additional evidence in the case. He cannot change the procedural deadlines established by law, but he has the right to restore or extend the deadline missed for a good reason at the request of the disputing party, for example, to restore the appeal period.

The claim, or limitation period, is the period of time established by law for applying to a jurisdictional body for the protection of a violated labor right or legitimate interest. Since the omission of the limitation period for applying entails the loss of the right to protection in this body, the claim periods are considered as material periods for the implementation of the protection of a substantive right. The statute of limitations is one of the preconditions for exercising the right to defend legal claims. The consequence of the expiration of the limitation period for a labor dispute is the loss of the right to claim, and if the claim has already been filed, then a decision may be made to dismiss the claim due to the missed limitation period. The statute of limitations begins

from the day when the person concerned learned about the violation of his right or should have known about it.

A claim in a labor dispute is an appeal to the appropriate body (CCC, court) for the protection of a violated and contested right or an interest of a subject of labor law protected by labor legislation. All disputes about the application of established working conditions are claims. Disputes about the establishment of new working conditions are non-contractual in nature, since here there is a requirement not to restore the violated right (as in lawsuits), but to establish a new right, new working conditions and the right to them. Previously, the law did not establish prescription and procedural deadlines for them. The Labor Code did not single them out in any way. Consequently, they are now also considered in the CCC. Therefore, the same procedural period is now provided for them.

The time limits for labor disputes are as follows: for an employee to apply to the CCC - three months; if it is missed for good reasons, the CCC at its meeting may restore this period, and if it is missed without good reason, it may refuse to file a claim for missing the statute of limitations; for an employee to file a claim directly with the court - three months, and in cases of dismissal - a month from the date of delivery of the dismissal order or from the date of issue of the work book;

for an employee to apply to a higher authority with a dispute - three months from the day when he learned or should have learned about the violation of his right, and about dismissal - a month;

for the administration to apply to the court with a claim against the employee for compensation for damage caused to the enterprise, a one-year claim period from the date the damage was discovered.

There are no time limits for claims in cases of compensation for harm to an employee at work. They are not present in lawsuits either.

The principle of ensuring the real restoration of violated rights is expressed in the fact that if the employer voluntarily does not comply with the decision of the body that considered the individual labor dispute, then this decision is enforced through a bailiff according to the relevant executive documents.

§ 4. Jurisdiction of individual labor disputes

The jurisdiction of labor disputes and the competence of the dispute resolution body are closely related concepts, but they are not identical and unequal.

The competence of the body considering a labor dispute is the legal field of activity, determined by its various functions in the field of labor disputes (power to accept

the right to consider disputes, the right to consider disputes in compliance with a certain procedural order and make a decision on disputes, etc.).

Jurisdiction of disputes affects only the right to accept for consideration the dispute within the jurisdiction of this body. It is determined by law. But the law did not establish scientifically based criteria for the jurisdiction of labor disputes to a particular body.

The jurisdiction of labor disputes is the determination, by the properties and content of a labor dispute, in which body it should initially be resolved. Therefore, when determining the jurisdiction of each specific labor dispute, it is necessary to find out what type of dispute - individual or collective. If the dispute is individual, then it is necessary to establish the legal relationship from which it follows. All disputes from legal relations directly related to labor relations are not under the jurisdiction of KTS. The correct determination of the jurisdiction of a particular labor dispute is of great practical importance, since the resolution of the dispute by an unauthorized body has no legal force and cannot be enforced.

All labor disputes according to their jurisdiction to one or another body can be divided into the following five groups:

considered in a general manner, when the CCC is a mandatory primary stage, after which the dispute may be submitted to the court;

considered directly in court;

considered by a higher authority in cases established by the Federal Law for certain categories of employees (Article 383 of the Labor Code);

alternative jurisdiction at the choice of the plaintiff in a higher body or in court (for example, all labor disputes of civil servants or disputes with state labor inspectors);

collective labor disputes with a single jurisdiction, considered by conciliation commissions, mediator and labor arbitration.

In the general procedure, the CCC considers only disputes from labor relations, and even then not all. A different procedure is established by law for two categories of disputes: considered either directly in court (without consideration by the CCC), or only in a higher body.

The following labor disputes are considered directly in court without applying to the CCC (without pre-trial proceedings) (Article 391 of the Labor Code):

at the request of the employee - on reinstatement at work, regardless of the grounds for termination of the employment contract, on changing the date and wording of the reason for dismissal, on transferring to another job, on payment for the time of forced absenteeism, compensation for non-pecuniary damage due to violation of his right to work, or on payment of the difference in wages for the time of performing illegally lower paid work;

disputes of employees of those organizations where CCC is not created (for example, disputes of persons who have concluded employment contracts with military organizations; disputes of domestic workers; employees employed by an employer - an individual; disputes of employees of religious organizations), as well as claims of the employer for compensation by the employee for damages, caused to the organization; disputes about unjustified refusal to hire: a person invited to work in the order of transfer from another enterprise, institution, organization; a young specialist sent after graduation in the manner prescribed by the contract; another person with whom the employer, in accordance with the law, is obliged to conclude an employment contract (sent under a quota); a pregnant woman or a woman with children under the age of three, a single mother (father) with children under 14 years of age (a disabled child - up to 18 years of age) for reasons related to these circumstances; a person who believes that he has been discriminated against at work;

disputes about compensation for damage caused by an employee of the organization - at the request of the employer. If the administration withheld from the employee's salary amounts in compensation for damage, and the employee considers this illegal, then the dispute will already be about illegal deduction and the jurisdiction of the KTS;

disputes about collective liability, about compensation by the employer for moral harm caused to the employee in connection with his labor injury or other damage to health at work, when the employee does not agree with the decision of the employer or did not receive the employer's response to his application within the established 10-day period . There is no statute of limitations for these non-pecuniary damage disputes.

Higher bodies (higher administration) are obliged to consider any complaints received from employees against the actions of lower bodies, including those on labor disputes subordinate to the CCC and the court. However, federal laws establish that a higher body considers labor disputes if a civil servant has applied to it with a dispute, as well as disputes of judges, prosecutors, their deputies and assistants on issues of dismissal, changing the date and wording of the reason for dismissal, transfer to another job, payment of forced absenteeism or performing lower-paid work

you and disciplinary action. All labor disputes of civil servants are considered by a higher administration or court at the choice of the employee.

Disputes of judges in accordance with the Law of the Russian Federation of June 26, 1992 "On the Status of Judges in the Russian Federation", as amended. The Federal Law of June 21, 19951 is considered by the higher qualification boards of judges, and the Supreme Court of the Russian Federation is considering the termination of the powers of a judge. Disputes between prosecutors, their deputies and assistants, as well as investigators of the prosecutor's office on these three issues are resolved in accordance with the Law of the Russian Federation of January 17, 1992 "On the Prosecutor's Office of the Russian Federation" by the Prosecutor General or the prosecutor superior to the one who fired them, transferred them or imposed a penalty. After consideration of their disputes by higher authorities, all these categories of workers are not deprived of the right to apply to judicial protection.

Since the Labor Code did not single out the jurisdiction of non-claim individual disputes (as was the case under Article 219 of the Labor Code), now a single jurisdiction of individual claim and non-claim disputes has been established.

The actions of state inspections (sanitary, etc.) are appealed to their higher body or court, and on the imposition of a fine - to the court at the place of residence.

§ 5. Procedure for consideration of individual labor disputes

The procedure for the consideration of a labor dispute is the form of the litigation process established for a given jurisdictional body, starting with the acceptance of an application and ending with a decision on a given case.

It is necessary to distinguish between the procedure for considering individual labor disputes in the CCC, the court and a higher body. All these bodies can carry out remedial actions, but in a different order. Most disputes from labor relations on the application of labor legislation are considered in a general manner, starting with the CCC, and if the CCC has not considered the dispute within 10 days, the employee has the right to transfer it to a court decision. The decision of the CCC can be appealed by any disputing party to the court. Such a general procedure is established by Art. 390 of the Labor Code, and for the court - also the Code of Civil Procedure of the Russian Federation.

The Labor Disputes Commission is a body of the labor collective. It is formed in all organizations at the initiative of employees and (or) the employer on a parity basis from representatives of these parties. As mentioned earlier, employee representatives are elected by the general meeting (conference)

1 Vedomosti RF. 1992. No. 30. Art. 1792; SZ RF." 1995. No. 26. Art. 2399. 424

employees by secret or open vote (at the discretion of the meeting or conference), and employer representatives are appointed by order of the employer. By decision of the general meeting of employees, KTS can be formed in structural divisions of the organization. These commissions are formed and operate on the same basis as the CCC of the organization. In the CCC of the structural divisions of organizations, individual labor disputes may be considered within the powers of these divisions.

A labor dispute is subject to consideration in the CCC, if pa6ojr, nickname, independently or with the participation of his representative, did not resolve the differences during direct negotiations with the employer. If the three-month claim period is missed for a good reason, KTS can restore it. The employee's application is subject to mandatory registration in the application receipt log, which indicates the date of receipt and consideration of the dispute, its content and decision. For the organizational and technical maintenance of the KTS (clerical work, storage of the case, issuance of extracts from the minutes of the meetings), a special permanent employee is appointed by order of the employer, who keeps a registration log.

The procedure for consideration of labor disputes in the CCC is exceptionally democratic. The dispute is considered at a convenient non-working time and always in the presence of the applicant employee. Dispute consideration in absentia is allowed only upon written application of the employee. If the employee for the second time without good reason does not appear at the CCC meeting, the latter may decide to withdraw the application from consideration, which does not deprive the employee of the right to submit the application again.

The case must be prepared for the meeting by the chairman or, on his behalf, a member of the CCC: the necessary witnesses in the case are called and, if necessary, a technical and accounting check is carried out by the relevant persons, and relevant documents and calculations are requested from the administration. The administration is obliged to submit them at the request of the CCC.

The procedure for holding a CCC meeting is not defined by law. Therefore, the applicant and the employer have the right at the beginning of the CCC meeting to make a reasoned challenge to any member of the commission. The issue of challenge is decided by the majority of the members of the CCC present. The meeting of the CCC is considered competent if it is attended by at least half of each side of the members of the commission, moreover, in an equal number of representatives of employees and the employer. The meeting of the commission is held openly, it can be attended by those who wish, and anyone can be heard on the circumstances of this dispute.

The decision of the commission shall indicate: the full name of the organization, surname, name and patronymic, profession, specialty, position of the applicant, dates of application to the CCC and consideration of the dispute, the essence of the dispute, the names of the members of the commission present at the meeting, representatives of the employer and the trade union body (shop committee), results voting and a reasoned decision with reference to the rule of law. The CCC may, in its decision, indicate its immediate execution or its execution within a specified period. The decision of the CCC, as a rule, has a motivational and resolutive part. The operative part of the decision should be written in a categorical, imperative form, for example: "Offer the employer to pay such and such an amount." Decisions of the CCC do not need further approval and are executed immediately. The Commission does not have the right to revise them, but may issue an additional decision if, for example, it did not accurately determine the amount to be recovered. The minutes of the CCC meeting must be signed by the chairman or his deputy and sealed by the CCC. On its basis, the employee, to whom the employer entrusted the maintenance of the CCC, within three days from the date of the decision, must hand over duly certified copies of the CCC decision to the employee and employer concerned.

The decision of the CCC may be appealed by the employee or the administration to the court within 10 days from the date of delivery of a copy of the decision to them. Missing this deadline is not grounds for refusing to accept the application by the court. The court at the meeting may restore it if the deadline is missed for a good reason, and consider the dispute on the merits.

The procedure for considering labor disputes in court is determined by the Code of Civil Procedure of the Russian Federation and Art. 391-397 TC. One of the most important guarantees for the protection of the labor rights of Russian citizens is their right to judicial protection (Articles 37 and 46 of the Constitution of the Russian Federation). The courts not only restore violated labor rights, but also identify the causes and conditions of these violations, carry out preventive work to eliminate and prevent them. The court may make representations to state bodies, public organizations and officials on the elimination of violations of the law, the causes and conditions that contribute to labor offenses.

Considering labor disputes, the court is guided by both the norms of labor law and the norms of civil procedural law and the relevant governing decisions of the Plenum of the Supreme Court on labor cases, for example, the decision of the Plenum of the Supreme Court of the Russian Federation of December 22

1992 "On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes" with subsequent amendments and additions1.

The competence and authority of the court in the field of labor disputes is determined not only by the range of disputes within the jurisdiction of the court, but also by the fact that, when considering a dispute, the court may, on its own initiative, bring to the side of the defendant a third party guilty of a gross violation of labor legislation. If, during the consideration of the case, the court establishes the wrong actions of officials, indicating a gross violation of labor legislation by them, it must, in accordance with Art. 226 of the Civil Procedure Code to issue a private ruling to bring the guilty leaders to disciplinary, and in appropriate cases - to criminal liability. These private rulings are sent to the appropriate body, which must inform the court about the measures taken within a month.

When accepting an application for a labor dispute, the judge alone decides whether to accept or refuse to accept the application for consideration in accordance with Art. 133-134 Code of Civil Procedure.

The law establishes the following statute of limitations for filing a labor dispute with a court:

for disputes about dismissal - a one-month period calculated from the day the employee was given a copy of the dismissal order or from the date the work book was issued with an entry on the grounds for terminating the employment contract, or from the day the employee refused to receive the dismissal order or the work book;

for other labor disputes - a three-month period from the day when the employee found out or should have found out about the violation of his rights;

on the claim of the employer to the employee for compensation for material damage caused by him to the organization - one year from the date of discovery of the damage;

for disputes that were considered in the CCC - a 10-day period, calculated from the date of delivery of a copy of the decision of the commission. This term is procedural, not statute of limitations. Its expiration does not entail the refusal of the claim (if it is missed for unjustified reasons), as is the case when the claim period is missed, but the enforcement of the CCC decision by force if it is not executed voluntarily. The 10-day period is also procedural because it determines the progress of the labor dispute process, and not the right to claim itself, as is the case with the statute of limitations.

1 Bulletin of the Supreme Court of the Russian Federation, 1993, No. 3; 1997. No. 1, 1998. No. 3

In the near future, it will be revised in accordance with the Labor Code of 2001.

Refusal of the judge to accept the application on the grounds of the expiration of the limitation period is illegal. The issue of missing the statute of limitations must be decided in a court session when considering a dispute. The law does not define what reasons are considered valid for the restoration of the statute of limitations. This is up to the court itself.

If valid reasons for missing the limitation period are recognized, the violated right is subject to protection.

Not only the interested employee, employer, but also the prosecutor (Article 45 of the Code of Civil Procedure), as well as the trade union, have the right to initiate a case in court.

Claimants - employees and trade union bodies acting on their behalf - in all labor cases are exempted from paying state duties and other court costs (Article 89 of the Code of Civil Procedure, Article 393 of the Labor Code). If the employee's claim is satisfied, then the court costs, including the state fee, are recovered from the defendant. If the employee's claim is denied, court costs will not be recovered from either side.

In cases where the plaintiff is an organization, legal costs are collected from it (in a dispute about the material liability of an employee).

An application submitted to the court for consideration of a labor dispute is not a complaint brought to a higher authority (cancelling the decisions of a lower one). Therefore, the court cannot cancel, change or uphold the decision of the CCC; he decides the dispute on the merits.

Claims for reinstatement in the court of first instance are considered by judges alone, and in the cassation and supervisory instances - as part of the presiding judge and two judges (Article 14 of the Code of Civil Procedure).

The remaining labor disputes are decided by the judge alone. With the consent of the parties to the dispute, the court may decide unilaterally on reinstatement cases.

The court decides the labor dispute in accordance with the circumstances of the case and the law. In the decision, he indicates which claims, on what basis, to what extent and in respect of which defendant are to be satisfied or which are denied.

Only the plaintiff can change his claims in court, increase or decrease them, change the subject and grounds for the claim, or waive the latter. If both the subject matter and the grounds of the claim change at the same time, this leads to the filing of a completely new claim.

The resolution of the dispute in court may also end with an amicable agreement (Article 39 of the Code of Civil Procedure). On the acceptance of the plaintiff's refusal of a claim in a labor case or on the approval of a settlement agreement between the disputing parties to an employment legal relationship, the court issues a ruling

nie, which simultaneously terminates the proceedings (Article 173 of the Code of Civil Procedure). The terms of the settlement agreement should not violate the law, the labor rights of employees and the interests of the organization. In particular, the court should not approve a settlement agreement in the case of reinstatement, entailing, bypassing the law, the release of the guilty official from liability for damage caused to the employer in connection with the payment of forced absenteeism. The ruling on the approval of the settlement agreement or on refusal to do so shall be made by the court in the deliberation room after discussing the issue of the legality of the agreement. "**

The court, considering a labor dispute, decides it on the basis of all available materials. At the same time, he is not bound by the previous decision of the labor dispute commission, although he investigates it to establish the truth in the case. The court may go beyond the claims stated by the plaintiff (Article 196 of the Code of Civil Procedure), if this follows from the grounds of the same claim. For example, the court may recover payment for forced absenteeism when reinstating an unlawfully dismissed person, although the plaintiff did not ask for this in the statement of claim.

All labor disputes are considered in court at the location of the defendant.

Any party can appeal against a court decision to a higher court within 10 days (Article 338 of the Code of Civil Procedure). At the same time, it may be protested by the prosecutor. Those who miss this deadline forfeit the right to file a complaint. But with a good reason for missing the deadline, the court may restore it. The higher court in cassation has the right to leave the court decision in force, change or cancel it in whole or in part. By canceling the decision of the court, the higher court may refer the case for a new trial to the same court in a different or in the same composition, or itself make a new decision on the merits of the dispute (Article 361 of the Code of Civil Procedure), or dismiss the case, or leave the claim without consideration. If the court decision is canceled on a cassation appeal, then the issue of the reverse recovery of the amounts paid in the order of reversal of execution is resolved by the court in all cases. This reverse recovery is carried out only by a court decision.

Decisions, rulings and resolutions of courts that have entered into legal force may be reviewed in the exercise of supervision on the basis of relevant protests. If the court decision is canceled by way of supervision, then from the worker who received certain amounts under this decision, these amounts are not recovered back, except in cases where the court decision was based on forged documents or false information provided by the plaintiff. The Law of the Russian Federation of April 27, 1993 "On Appeal to Court of Actions and Decisions Violating the Rights and Freedoms of Citizens" provided that a citizen may appeal to the court any

collegial and sole decisions of bodies and officials that violate his rights and freedoms (and therefore in the sphere of labor) or create obstacles to their implementation, as well as if he is unlawfully assigned any duty or he is unlawfully brought to any responsibility. This appeal can be either directly to the court within three months, or within a month after the citizen receives a written notice of the refusal of a higher body (official) to satisfy his complaint or from the date of expiration of a month after the filing of the complaint, if no response to it is received. . Such a complaint to the court is also possible in cases where a different procedure for judicial appeal is provided.

The consideration of labor disputes in higher authorities must be distinguished from the consideration by a higher authority or the employer of any complaint against the actions of lower economic managers, which they consider in the manner prescribed by administrative law. The law does not prohibit an employee or labor collectives from filing a complaint against the actions of officials, including on issues that they can dispute as labor disputes in jurisdictional bodies. Such a complaint must be considered within 20 days.

The time limits for these employees to file a dispute with a higher authority are the same - one month for a dismissal dispute and three months for disputes over transfers and disciplinary sanctions. The higher body is obliged to consider the dispute within a month from the date of receipt of the application.

The dispute is resolved in the presence of the employee, if he does not ask to consider his application in absentia or did not appear without a good reason for a secondary call. Higher bodies also consider disputes of judges, prosecutors, their deputies and assistants on issues of dismissal, transfer and imposition of disciplinary sanctions. As indicated, all labor disputes of civil servants can be considered by a higher body (or court). The body considering the dispute has the right to invite a representative of the authority and administration, the trade union and other public organizations that made the disputed decision to it.

The decision of the higher authority on the dispute must be based on the law and motivated. In the event of unlawful dismissal, transfer or imposition of a disciplinary sanction, a higher authority shall decide to cancel the relevant order, order, resolution. He cannot apply a stricter measure to the employee, but has the right to replace the applied disciplinary measure with a softer one, taking into account the specific circumstances of the misconduct, previous work and the behavior of the employee.

When an employee is reinstated in his previous job, the higher authority also makes a decision on payment for the time of forced absenteeism in case of illegal dismissal for all his time.

Copies of the decision of the higher body within three days after its adoption must be sent or handed over to the employee concerned and the body whose actions were challenged.

Disputes between judges, prosecutors and investigators on issues of disciplinary sanctions, transfers and dismissals are regulated by special legislation on judges, prosecutors and investigators. Thus, the Federal Law of March 14, 2002 "On the Bodies of the Judicial Community in the Russian Federation" regulated in detail the decision of these issues by collegiums in relation to judges. The legislator provided for the procedure for attesting judges, assigning qualification classes to them, reducing or depriving them.

§ 6. Execution of decisions on individual labor disputes

The final act of settling labor disputes that have arisen is the actual execution of the decisions of the bodies that considered these disputes.

The decision is considered executed when its instructions are actually fulfilled: the entire amount awarded to the plaintiff is paid, the plaintiff is reinstated, the wording of the reasons for dismissal is changed, etc. Decisions on labor disputes, as a rule, are executed voluntarily. Otherwise, the law establishes a compulsory procedure for their execution. In all cases, compulsory enforcement proceedings begin, as a rule, at the request of the plaintiff - the employee concerned. But it can also be initiated at the initiative of the prosecutor or the trade union body.

The execution of decisions of the court on labor disputes is regulated by the Federal Law "On Enforcement Proceedings" of July 21, 1997, as amended. Federal Law of January 10, 2003 2, and decisions of the CCC - Art. 389 TK.

The decision of the CCC comes into force immediately and does not need any approval. The entry into force of the decision immediately must be distinguished from the immediate execution of the decision. Yes, Art. 396 of the Labor Code provides for the immediate execution of the decision of the labor dispute resolution body on the reinstatement of an illegally dismissed or transferred employee and on payment for forced absenteeism. The remaining decisions of the CCC on labor disputes are subject to execution within three days after the expiration of 10 days for their appeal.

SZ RF. 2002. No. I. St. 1022. !SZ RF. 1997. No. 30. Art. 3591; 2003. No. 2. Art. 160.

If the employer does not voluntarily execute the decision of the labor dispute body within the specified 13 days, it shall be enforced by force. To do this, the CCC, for the execution of its decision, issues to the employee a special certificate, which is an executive document (if the other disputing party has not appealed this decision within the prescribed period), certified by the signature of the chairman of the CCC (or his deputy) and the seal of the CCC. It indicates: 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. With the received certificate, the employee can apply to the court to the bailiff within three months and he will enforce it in the same manner as the court decision. If the specified period is missed for a good reason, the CCC that issued the certificate may restore it.

The decision of the court is enforced upon its entry into legal force, except for cases of immediate execution (Article 211 of the Code of Civil Procedure). If, on the second day after the court decision on the reinstatement of the employee at work, the employer does not allow him to return to his previous job, then he will have to pay him, according to a special court ruling, wages for the entire time of forced absenteeism associated with the failure to comply with the court decision. The bailiff shall report to the court on non-compliance with the court decision. In this case, the court, in a court session, summoning the parties and the official guilty of non-execution of the court decision, issues a ruling on the payment of wages to the employee reinstated by the court (or the difference to the incorrectly translated employee) for the entire time of the delay in the execution of the court decision from the date of the decision to the day of its actual execution.

The reversal of the enforcement of a court decision on the award of payment is possible only by a special court decision. In the event of a cassation cancellation of a decision on which the awarded amounts have already been paid, and a decision is made to refuse in full or in part of the claim or a ruling is made to terminate the proceedings on the case, the amounts paid under the canceled decision are recovered back in favor of the defendant by the court decision (Article 443 and 444 Code of Civil Procedure). The reverse recovery from the employee of the amounts paid to him by a court decision (or CCC), 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. For failure to comply with decisions on labor disputes, and especially decisions on the reinstatement of incorrectly dismissed workers, the law establishes disciplinary, material and even criminal liability of officials.

If the court discovers a malicious failure to comply with a court decision to reinstate an employee at work, it may issue a ruling on bringing the violator to justice, or, without initiating a criminal case, issue a private ruling against the guilty official, raising the question of his disciplinary liability. Control over the correct and timely execution of court decisions is carried out in accordance with the legislation on enforcement proceedings. In the event of a delay in the execution of such a decision of a higher authority on reinstatement, the employee shall be paid the average wage or its difference for the entire time of the delay. The decision on * such payment for the delay time is made by the same body that made the decision on reinstatement.

§ 7. General characteristics of the legislation on collective

labor disputes

Collective labor disputes are closely connected with the history of the labor movement for the improvement of working conditions and living conditions of workers. However, the legislation of developed countries until the 50s of the XX century. did not regulate the procedure for resolving collective labor disputes. At the present time in England and the USA there is mainly collective contractual regulation of them.

International legal acts on labor law, providing for a certain procedure for resolving disputes in collective bargaining, appeared only after the Second World War. Thus, in 1949, the ILO adopted Convention No. 98 on the right to organize and to conduct collective bargaining, which provides for freedom and the right to conduct collective bargaining, and in 1951 - a special act for the settlement of collective labor disputes: Recommendation No. 92 on voluntary conciliation and arbitration . ILO Convention No. 154 and its Recommendation No. 163 of 1981 on collective bargaining provided for the procedure for resolving disagreements (disputes) in collective bargaining. These international legal acts on collective labor disputes are the basis for the development and adoption of national legislation1.

The conciliatory procedure for resolving collective labor disputes in many developed countries is now increasingly being developed in legislation.

Until 1990, Soviet labor legislation did not regulate the procedure for resolving collective labor disputes, since the ownership of the means of production belonged to the state and

See: Lyutoe N. L. Acts of the ILO related to the resolution of collective labor disputes // Labor Law. 2002. No. 3 and 4.

collective labor disputes arose very rarely. For the first time, the procedure for resolving collective labor disputes was provided for by the USSR Law of October 9, 1989 "On the procedure for resolving collective labor disputes (conflicts)", which established a two-stage procedure for resolving collective labor disputes: first in a conciliation commission, and if this dispute is not settled, in labor arbitration formed by the disputing parties themselves, but in a different order. This Law was in force in the Russian Federation in red. of May 20, 19911 until the adoption of the Federal Law of November 23, 1995 "On the procedure for resolving collective labor disputes"2. Article 37 of the Constitution of the Russian Federation (clause 4) secured the right to individual and collective labor disputes using the methods of their resolution established by federal law, including the right to strike. The procedure for resolving collective labor disputes may be stipulated in a collective agreement and social partnership agreements, but subject to the norms of federal law.

The federal law adopted the main provisions of the federal law, but differs significantly from it. It has five chapters and 26 articles.

Chapter 1 establishes the tasks and scope of the Law (Article 1) and the basic concepts (Article 2) of a collective labor dispute, conciliation procedures, representatives of employees and employers, the moment of the beginning of a collective labor dispute and a strike.

Chapter 2 establishes in more detail the procedure for resolving a collective labor dispute: how the demands of employees are put forward and the participation in their resolution of a new state body - the Service for the Settlement and Resolution of Collective Labor Disputes. In the process of resolving a collective labor dispute, both two and three conciliation procedures are allowed: a conciliation commission and a mediator, or labor arbitration (clause 6, article 6), or a conciliation commission, a mediator, and then labor arbitration (clause 1, article 8) . The rights and obligations of the Service for Settlement of Collective Labor Disputes have been fixed.

Chapter 3 provides for the exercise of the right to strike, warning one-hour strikes and the procedure for declaring them, fixes the content of the decision to declare a strike, the requirements for ensuring the minimum necessary work (services) during any strike, and if it is not provided, the strike may be declared illegal. More mildly, but more clearly, illegal strikes are defined (art. 17). It is impossible not to note such a new guarantee for strike participants as the prohibition of lockout (Article 19) - mass dismissals of strikers,

1 Gazette of the USSR. 1991. No. 23.

SZ RF. 1995. No. 48. Art. 4557.

which, for example, does not prohibit, but, on the contrary, allows the Taft-Hartley Act of 1947 in the United States.

Chapter 4 established liability for violation of legislation on collective labor disputes (Articles 20-24), liability of employers' representatives for evading participation in conciliation procedures and for failure to comply with an agreement reached in conciliation proceedings, and liability of employees for illegal strikes.

Chapter 5 - final provisions.

As can be seen from the foregoing, the Federal Law focuses on the regulation of the procedure for resolving a collective labor dispute and its peaceful procedures, which are called conciliatory procedures and their concept is given (clause 2, article 2).

Conciliation procedures - consideration of a collective labor dispute for the purpose of its resolution by a conciliation commission, parties with the participation of a mediator and in labor arbitration.

The federal law established the legal basis, procedure and methods for resolving collective labor disputes, as well as the procedure for exercising the right to strike in the course of resolving a collective labor dispute. The norms of this Law apply to all employees, employers, associations of employees and associations of employers and their authorized bodies. Political and environmental strikes are not labor disputes and therefore are not covered by this Law.

The federal law provided for the rights and obligations of the state service for the settlement of collective labor disputes, and for the first time settled the procedure for resolving disagreements by the parties themselves before the dispute arises, resolved by the conciliation commission, making it possible to exclude spontaneity and prevent collective labor disputes. The law does not invite a strike, but introduces it into a legal framework, providing for the procedure for its announcement, guarantees for participants and the legal consequences of an illegal strike. The main provisions of the Law are enshrined in the Labor Code in Ch. 61 (Art. 398-418) with some additions and changes. Thus, the Code regulates the consideration of not only individual, but also collective labor disputes (Chapters 60 and 61).

§ 8. The concept and types of collective labor disputes

The Federal Law “On the procedure for resolving collective labor disputes” provides the following definition: “A collective labor dispute is unsettled disagreements between employees and employers regarding the establishment and change of working conditions (including wages), the conclusion, amendment and implementation of collective agreements, agreements on

social and labor relations” (clause 1, article 2). Article 398 of the Labor Code, fixing this concept, supplemented it with the words "and also in connection with the employer's refusal to take into account the opinion of the elected representative body of employees when adopting acts containing labor law norms in organizations." Thus, the refusal of the employer to take into account the opinion of the trade union body is a reason for a collective labor dispute. The moment of the beginning of a collective labor dispute is the day when the decision of the employer (his representative) to reject all or part of the claims of the employees (their representatives) is communicated or if he fails to communicate his decision within the time period established by law, as well as the date the protocol of disagreements was drawn up in the course of collective negotiations. The disagreements themselves on the establishment or implementation of collective agreements, agreements on social and labor relations are not yet a labor dispute, since these disagreements can be settled by the disputing parties themselves, and then a labor dispute will not arise. But the disagreements not settled by the parties themselves already represent a collective labor dispute between employees and the employer, resolved by the conciliation procedure.

The subject of a collective labor dispute is the legitimate interests and rights of workers united in labor collectives.

In a collective dispute, representatives of the disputing parties act, and the Law determines them. Representatives of employees are bodies of trade unions and their associations authorized to represent in accordance with their charters, bodies of public amateur performance formed at a meeting (conference) of employees of an organization, branch, representative office and authorized by them. Representatives of employers - heads of organizations or other persons authorized in accordance with the charter, authorized bodies of associations of employers, other bodies authorized by employers. The very name "collective labor disputes" indicates that their disputing subject is a labor collective of workers or several labor collectives of workers.

Representatives of employers in such collective labor disputes at the level above the organization are the authorized bodies of the relevant associations of employers and other bodies authorized by employers (Article 2 of the Federal Law).

In the above legal concept of a collective labor dispute, the legislator uses the term “social labor relations” for the first time, without explaining what kind of relations it covers. It seems that we are talking about not only labor relations, but also other social relations that are directly closely related to labor, which are the subject of labor law and social security law. Since the term "co-

social” is similar to the term “public”, social and labor relations can be considered a synonym for social and labor relations (as the main subject of labor law). Therefore, we will assume henceforth that this term covers all social relations related to the labor of workers, which are the subject of labor law. The legal concept of a collective labor dispute refers only to the implementation of collective agreements, agreements, and not to the application of labor legislation (as was the case in the Union Law on Collective Labor Disputes). Now there are numerous collective labor disputes about non-payment of wages, leading to strikes and other collective protests. Therefore, it would be more correct to add “and the application of labor legislation” to the concept of “collective labor disputes”.

The previously mentioned General Agreement between all-Russian associations of trade unions, all-Russian associations of employers and the Government of the Russian Federation for 2002-2004. determined the agreed positions of the parties to this agreement on the basic principles of conducting socio-economic policy and their joint actions to implement it. The very title of the sections of this legal act of social partnership shows on what issues in collective negotiations on the adoption of such an agreement and in its implementation, collective labor disputes are possible. This must be taken into account, since the previously indicated legal concept of collective labor disputes limits them to issues of “social and labor relations”. The General Agreement also recognizes such a type of collective labor dispute as a dispute not only over the implementation of agreements, collective agreements (as in Article 398 of the Labor Code), but also over the application of labor legislation in general on collective social and labor rights and interests. This also confirms the need to supplement the legal concept of collective disputes with the words “on the application of labor legislation”.

The types of collective labor disputes differ in the nature of the dispute and in the legal relations from which the dispute arises.

By nature, disputes between employees and employers (or their representatives) are distinguished regarding:

establishing or changing working conditions, concluding or changing collective agreements, agreements on issues of work and life of employees;

implementation of collective agreements, agreements, labor legislation.

According to the legal relations from which collective labor disputes arise, there are:

dispute from the legal relationship of the labor collective of employees of the organization with the employer (administration);

dispute from the legal relationship of the trade union body of the organization with the employer (administration);

disputes of a wide scope from the legal relations of social partners above the level of the organization. Because according to Art. 2 of the Law of the Russian Federation "On collective agreements and agreements" in red. dated November 24, 1995, there can be four such levels of agreements above the organization, then there can be four types of collective labor disputes above the organization level, i.e. arising from legal relations of the corresponding social partner levels: the Russian Federation, the subject of the Russian Federation, industry and territory.

As can be seen, all collective disputes are disputes relating to the sphere of social partnership relations at their various levels. And the disputing parties in a collective labor dispute are collectives, associations of workers and employers, their associations represented by their respective representatives, depending on the level of social partnership legal relations: at the organization level, at the federal, sectoral, regional, territorial levels.

Trade unions have the right (Article 14 of the Federal Law of January 12, 1996 on trade unions) to participate in the settlement of collective labor disputes. They have the right to organize and conduct strikes, meetings, rallies, street processions, demonstrations, picketing and other collective actions in accordance with the Federal Law, using them as a means of protecting the social and labor rights and interests of workers. Trade unions and their representatives act in collective disputes on the part of workers.

Since the Federal Law on Collective Labor Disputes provided that the representatives of employees in collective labor disputes are the bodies of trade unions, their associations, etc., authorized to represent, each type of collective labor dispute corresponds to certain social partner bodies and their representatives as parties to this spore.

§ 9. Stages and procedure for conciliation procedures for resolving collective labor disputes

The stages and procedure for resolving collective labor disputes are preceded by the stage of settling disagreements by the parties themselves. After all, labor disputes are unresolved disagreements considered by jurisdictional bodies in the manner prescribed by law. To make it clear that employees have certain disagreements with the employer that require the decision of the employer, employees must formalize them by making demands.

Employees and their representatives have the right to put forward demands. Employers do not have this right. The requirements of employees of the organization, representative offices are approved at a meeting (conference) of employees by a majority vote. At the same time, employees elect their authorized representatives to participate in the resolution of a collective labor dispute. The meeting of employees is considered eligible if more than half of the "employees" are present (Article 399 of the Labor Code). The employer does not have the right to interfere with the holding of such a meeting (conference). The law does not specify whether voting on requirements should be secret or open. This is decided by the meeting itself (conference) Claims that are not related to labor disputes should not be raised, since they are not subject to consideration in the manner specified by the Law for labor disputes.

Requirements are drawn up in writing and sent to the employer, who is obliged to accept them for consideration and inform the employee representative of his decision within three working days. When putting forward the same requirements by various representatives of employees, they have the right to form a single body to resolve this collective disagreement. The demands of trade unions and their associations are put forward and sent to the relevant parties to the social partnership (Article 399 of the Labor Code). The Code enshrines this provision, but does not indicate which trade union body nominates them.

The employer is obliged to give a written response to the claims of employees within three working days, and for the requirements of trade unions - within a month from the date the employer received the requirements (Article 400 of the Labor Code).

If the employer satisfied all the requirements of the employees, then the disagreements are settled and there is no dispute. If they are fully or partially rejected by the employer, then the representatives of the employees can start conciliation procedures to resolve the collective labor dispute that has already arisen, since the moment this dispute starts is the day the employer’s decision to reject all or part of the workers’ claims or failure to notify them on the specified three-day (monthly) the term of its decision, as well as the date of drawing up a protocol of disagreements during collective bargaining.

The procedure for resolving a collective labor dispute consists of three or two consecutive stages of conciliation procedures:

1) consideration of the dispute by the conciliation commission;

2) consideration of the dispute with the participation of a mediator;

3) consideration of the dispute in labor arbitration. The legislator clearly indicates in the third part of Art. 398 TK

(and earlier in the Federal law on collective labor

pax) the moment of the beginning of a collective labor dispute - the day of notification of the employer's decision to reject the claims of employees in whole or in part, or the employer's failure to notify in accordance with Art. 400 of the Labor Code of his decision, as well as the date of drawing up the protocol of disagreements.

In Art. 401 of the Labor Code also provides that in the procedure for considering a collective labor dispute, only three stages (stages) of its resolution are possible (in a conciliation commission, with the participation of a mediator and (or) in labor arbitration).

The obligatory first stage is the conciliation commission, after which, if no agreement is reached, the parties proceed to the consideration of the dispute with the participation of an intermediary, and then in labor arbitration. Or, after the conciliation commission, the parties can transfer the dispute to the labor arbitration. If agreement is not reached on which conciliation procedure to use after considering the dispute in the conciliation commission (mediator or labor arbitration), the parties must proceed to the creation of labor arbitration, i.e. the Federal law limits the procedure to two stages (clause 7, article 6).

None of the parties to the dispute has the right to evade participation in conciliation procedures. Each conciliation procedure is carried out within the terms established by the Law. But if necessary, these terms can be extended by agreement of the parties to the dispute. These terms are procedural. No statute of limitations for collective labor disputes has been established. In support of their demands during the period of resolution of a collective labor dispute, employees have the right to hold meetings, rallies, demonstrations, and picketing in accordance with the law.

Representatives of the parties, the conciliation commission, mediators, labor arbitration and the Service for the Settlement of Collective Labor Disputes are obliged to use all the possibilities provided for by law to resolve a collective labor dispute.

The Conciliation Commission is a joint body of the disputing parties, created by them on an equal footing within three working days from the moment the dispute begins. Its creation is formalized by the relevant order (instruction) of the employer and the decision of the representative of the employees, allocating representatives of the parties to the commission on an equal basis. Its quantitative composition is established by the parties by agreement. The parties are not entitled to evade the creation of a conciliation commission and participation in its work. And if one of the parties evades (Article 406 of the Labor Code), then the collective labor dispute is referred to the labor arbitration. The commission must consider the dispute within five working days from the date of issuance of the order on its creation. During this period

it may sit more than once. The employer creates the necessary conditions for the work of the conciliation commission (Article 402 of the Labor Code).

Commission meetings must be held in full. From among its members, the commission chooses by open voting a chairman and a secretary, but they must be from different parties.

The procedure for resolving a collective labor dispute in a conciliation commission is not provided for by the Law.

In connection with bringing regulatory legal acts in line with the Labor Code, the Ministry of Labor of Russia, by a resolution of August 14, 2002, approved Recommendations on the organization of work on the consideration of a collective labor dispute by a conciliation commission1. In practice, the regulations for these commissions are developed by the commissions themselves. The decision of the conciliation commission is made by agreement of the parties on the basis of negotiations. At the same time, the proposals of one side must coincide with the opinion of the other. The adopted agreement is drawn up in a protocol, is binding on the parties and is executed in the manner and terms established by the decision of the commission (Article 402 of the Labor Code).

The minutes of the commission record its decision and indicate the representatives of each party present, the date of the decision and the signatures of all representatives of the parties. The decision may specify the deadlines for the fulfillment of each requirement. The law did not stipulate whether all the requirements for the employer are indicated in the protocol or only those on which the parties in the commission reached an agreement. The number of requirements may be reduced, but new requirements that have not been approved by the meeting (conference) and have not been presented to the employer for its decision before the commission cannot be put forward.

The same applies to the dispute considered in the conciliation commission according to the protocol of disagreements of the parties, signed by them during collective negotiations. The commission in this case is also limited to consideration of those disagreements of the parties, which are indicated in the protocol of disagreements. The decision of the commission indicates on which of these disagreements an agreement has been reached, and on which not, as well as the procedure and terms for its implementation.

If no agreement is reached in the conciliation commission, the parties continue the conciliation procedures at the second stage, with the participation of an intermediary and (or) in labor arbitration (as they agree).

Thus, after the conciliation commission draws up a protocol of disagreements, the parties to a collective labor dispute can, within three working days, invite a mediator on their own or with the help of the Collective Labor Settlement Service.

1 See: Bulletin of the Ministry of Labor of the Russian Federation. 2002. No. 8. S. 29-37.

new disputes. If within this three-day period they have not reached an agreement on the candidacy of the intermediary, then they proceed to the creation of a labor arbitration (Article 403 of the Labor Code).

The procedure for considering a collective labor dispute with the participation of a mediator is determined by agreement between the parties to the dispute with the participation of a mediator.

The Service for the Settlement of Collective Labor Disputes is a system of state and regional bodies within the Ministry of Labor of Russia and the Ministry of Labor of the subjects of the Federation. The Regulations on the Service were approved by a Decree of the Government of the Russian Federation dated April 15, 1996, as amended on March 21, 1998. their preparation, identifies and summarizes 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 dispute resolution and organizes the financing of conciliation procedures - the payment of mediators and labor arbitrators. Employees of the Service visit organizations, branches, representative offices in order to resolve collective labor disputes, identify and eliminate the causes that give rise to them. The service has its own bodies in the field.

The mediator is the third neutral body in relation to the disputing parties, designed to help the parties reach an agreement on the dispute. The mediator has the right to request and receive from the parties the necessary documents and information on a collective labor dispute, which must be considered with the participation of the mediator within seven working days from the date of his invitation (appointment) (Article 403 of the Labor Code).

Consideration of a collective labor dispute with the participation of a mediator may end in one of two ways: either by the adoption by the parties to the dispute of an agreed decision that is binding, or by drawing up a protocol of disagreements. If a protocol of disagreements is drawn up, then the parties turn to the third stage - to labor arbitration.

At present, the Resolution of the Ministry of Labor of Russia dated August 14, 2002 approved Recommendations on the organization of work on the consideration of a collective labor dispute with the participation of an intermediary2.

Labor arbitration is a temporary body for resolving a collective labor dispute that has not received

1 SZ RF. 1996. No. 17; 1998. No. 14. Art. 1579.

2 See: Bulletin of the Ministry of Labor of the Russian Federation. 2002. No. 8. S. 37-45.

its permission in the conciliation commission or with the participation of an intermediary. Labor arbitration is created by the parties to the dispute and the Service no later than three working days from the end of the consideration of the collective labor dispute by the conciliation commission or an intermediary consisting of three labor arbitrators recommended by the Service or proposed by the parties to the dispute. Representatives of the parties to the dispute should not be included in the composition of the labor arbitration. An appropriate decision of the employer, employee representative and the Service formalizes the creation of labor arbitration, its personal composition, regulations and powers.

Labor arbitration is created if the parties to the collective labor dispute have concluded in writing an agreement on the mandatory implementation of its decision (Article 404 of the Labor Code). This new provision of the Code grants the right to workers to start a strike if the parties, after resolving the dispute by the conciliation commission, have not reached an agreement on the creation of a mediator and labor arbitration, i.e., it makes it easier for workers to start a strike.

The creation of labor arbitration is mandatory in organizations in which the law prohibits or restricts strikes (Article 406 of the Labor Code).

The labor arbitration considers the dispute with the participation of representatives of its parties within five working days from the date of the establishment of the labor arbitration and may sit more than once. He considers the appeal of the parties, receives the necessary documents and information relating to the collective labor dispute, if necessary, informs the state authorities and local governments about the possible social consequences of the dispute. At the end of the consideration of the dispute, the labor arbitration makes a decision on the merits of the dispute by a majority vote of the arbitrators.

If the employer evades the creation of labor arbitration, consideration of the dispute in it, as well as the implementation of its decisions, then the Law gave the right to workers in these cases to go on strike.

An agreement reached in the course of resolving a collective labor dispute is drawn up in writing and is binding on the parties. Control over its execution is carried out by the parties to the dispute (Article 408 of the Labor Code).

In connection with bringing regulatory legal acts in line with the Labor Code, the Ministry of Labor of Russia, by a resolution of August 14, 2002, approved Recommendations on the organization of work on the consideration of a collective labor dispute in labor arbitration1.

See: Bulletin of the Ministry of Labor of the Russian Federation. 2002. No. 8. S. 45-51.

Article 405 of the Labor Code provided for certain guarantees for employees participating in conciliation procedures for resolving a collective labor dispute. Members of the conciliation commission (for some reason, mediators are excluded without any reservation, which causes difficulties in practice), labor arbitrators, while participating in the resolution of a collective labor dispute, are released from their main work, while maintaining their average earnings for a period of not more than three months within one year. Representatives of employees, their associations during the period of resolution of a collective labor dispute cannot be subjected to disciplinary action, transferred to another job or dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent. This additional special guarantee is valid only for the period of resolution of the collective dispute in which they represent a party.

§ 10. The right to strike and its implementation

A strike is a temporary voluntary refusal of employees to perform their labor duties (in whole or in part) in order to resolve a collective labor dispute.

In contrast to conciliation procedures for resolving a collective labor dispute, a strike is an ultimatum action by employees, pressure on the employer in order to achieve the fulfillment of their demands, which are not settled in conciliation procedures, by stopping work. It is an extreme, exceptional measure for resolving a labor dispute.

Strikes were of great importance for the emergence of labor legislation in all countries, including Tsarist Russia. Not a single labor law either in tsarist Russia or in foreign countries at the end of the 19th - beginning of the 20th century. was not published without the strike struggle of the working people. And at present, the working class of developed countries through strikes, strikes in various forms (slow pace of work, warning - short-term, 24- or 28-hour, stepped - stopping work for several hours a day or week, intermittent - stop work in turn each shop, until the announced complete cessation of work, etc.) not only forces the owners and governments to undertake social reforms that improve working conditions in a certain way, but also fights against anti-worker laws that infringe, take away* the concessions won. The right to strike was enshrined in legislation, also under the pressure of the labor movement.

The Soviet Union in 1974 ratified the UN International Covenant on Economic, Social and Cultural Rights

1966, according to which the states that have adopted it undertake to ensure the right to strike in accordance with the laws of the country regulating it. But the law regulating strikes was adopted in our country only 15 years after the ratification of this pact, since there were no strikes in the country until 1989.

The right to strike is the right of a labor collective or several labor collectives, since the strike itself is a collective action, a form of a collective ultimatum to meet the demands of workers who have not received permission peacefully. And no one else falls under the definition of the concept of "strike" given in Art. 398 TK.

The Labor Code indicates that the right of workers to strike in accordance with Art. 37 of the Constitution of the Russian Federation is recognized as a way to resolve a collective labor dispute. The Code restricts the right to strike in certain cases. So, in Art. 413 of the Labor Code states that in accordance with Art. 55 of the Constitution of the Russian Federation are illegal and strikes are not allowed:

a) during the introduction of martial law or a state of emergency or special measures in connection with this; in the bodies and organizations of the Armed Forces of the Federation, other military, paramilitary and other formations and organizations in charge of ensuring the defense of the country, state security, emergency rescue and search and rescue, fire fighting, prevention or elimination of natural disasters and emergency situations; in law enforcement agencies; in organizations directly servicing especially hazardous types of production or equipment, at ambulance and emergency medical aid stations;

b) in organizations related to ensuring the life of the population (energy supply, heating, heat supply, water supply, gas supply, aviation, rail and water transport, communications, hospitals), if the strike poses a threat to the defense of the country and the security of the state, life and people's health.

Consequently, the Labor Code expanded both the unconditional (paragraph "a") and conditional (paragraph "b") prohibition of strikes and specified it. Prohibited participation in strikes by federal civil servants by the legislation on them.

In cases where a strike cannot be held, the final decision on a collective labor dispute (after conciliation procedures) is taken within 10 days by the Government of the Russian Federation (Article 413 of the Labor Code).

The realization by workers, their labor collectives of the right to strike is possible only after the passage of conciliation procedures or if the employer evades conciliation.

procedures, or when he fails to comply with an agreement reached in the course of resolving a collective labor dispute. In these three cases, workers can use such forms as meetings, rallies, demonstrations, picketing (these forms can also be used during a strike to support demands). ," FROM

Participation in a strike is voluntary, and no one can be forced to participate or refuse to participate in a strike, otherwise coercive persons bear disciplinary, administrative and even criminal liability. Employers and their representatives are not entitled to organize a strike and take part in it. >

Strike order. The decision to declare a strike is taken by the general meeting (conference) of the workers of the organization (branch, representative office) at the proposal of the representative body of workers, previously authorized by workers to resolve a collective labor dispute. The decision to declare a strike, adopted by the trade union (association of trade unions), is approved by the meeting (conference) of workers. A meeting (conference) of employees shall be considered competent to decide on a strike if at least two thirds of the total number of employees (members of the conference) are present at it. The decision is considered adopted if at least half of the employees present at the meeting (conference) voted for it. If it is impossible to hold a meeting (convening a conference) of workers, the representative body of workers has the right to approve its decision by collecting the signatures of more than half of the workers in support of the strike (part 4 of article 410 of the Labor Code). The law provided for the possibility of holding a one-hour warning strike after five calendar days of work of the conciliation commission. The employer must be notified about it in writing no later than three working days in advance, and the body in charge of it shall ensure the minimum necessary work (services). .

The rights and obligations of the disputing parties during a strike. The employer must be warned by the second disputing party in writing about the start of the upcoming strike no later than 10 calendar days before it starts. The decision to declare a strike shall specify:

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

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

proposals (list) on the minimum necessary work (services) performed in production during the

strikes. These are different levels of lists of necessary work and their compilation are defined by Art. 412 TK.

The employer shall notify the Service for Settlement of Collective Labor Disputes about the forthcoming strike, inform suppliers and consumers, take measures to maintain the efficiency of production, machinery, equipment, etc., using the specified 10-day warning period before the start of the strike.

The strike is headed by a body elected by the meeting (conference) of employees or the relevant body of trade unions. He has the right to convene meetings (conferences) of employees, receive information from the employer on issues affecting the interests of employees, involve relevant specialists to prepare opinions on controversial issues, as well as suspend the strike and resume it after suspension without re-consideration of the dispute by the conciliation commission or in labor arbitration. He must notify the employer and the Service of such resumption of the strike no later than three working days before the strike.

During the period of the strike, the parties to a collective labor dispute are obliged to continue resolving this dispute by conducting various conciliation procedures. In order to ensure public order during the period of the strike, the safety of the property of production and individuals, as well as the operation of machinery and equipment, the stoppage of which poses a direct threat to the life and health of people, the employer, executive authorities and the body leading the strike are obliged to take for this measures. In those organizations, branches, representative offices whose work is related to the safety of people, ensuring their health and the vital interests of society (for example, ambulance, hospitals, water supply, transport), during a strike, a minimum of work (services) necessary for the population must be provided, which is determined by agreement of the parties together with the executive authorities or local self-government within five days from the date of the decision to declare a strike. If such an agreement is not reached, then it is established by the executive authority or local government. If the minimum necessary work (services) is not provided, the strike may be declared illegal.

The law provided for mandatory documentation when resolving a collective labor dispute. All actions of the parties are documented in minutes by representatives of the parties, conciliation bodies, and the body leading the strike.

§ 11. Legal consequences of legal and illegal

strikes

The recognition of a strike as illegal is made by the decision of the Supreme Court of the republic, the territory, the regional court, the courts of the cities of Moscow and St. Petersburg, the autonomous region, the autonomous district. The court takes such a decision at the request of the employer or the prosecutor and brings it to the body leading the strike. The latter is obliged to immediately inform the participants of the strike about the decision of the court. Strikes are recognized as illegal if they were announced without observing the deadlines, conciliation procedures and requirements of the Law, as well as strikes of workers to whom the Law restricts the right to strike (law enforcement agencies, etc.), and strikes during a state of emergency. The court decision on the recognition of the strike as illegal, which has entered into legal force, is subject to immediate execution. In this case, the workers are obliged to stop the strike and start work no later than the next day after the delivery of a copy of the said court decision to the body leading the strike. The court also has the right to postpone a strike that has not begun in the event of an immediate threat to the life and health of people for up to 30 days, and to suspend a strike that has begun in this case for the same period.

In cases of particular importance for ensuring the vital interests of the Russian Federation or certain territories, the Government of the Russian Federation has the right to suspend the strike until the court decides this issue, but not more than ten calendar days.

The powers of the body leading the strike, elected by the meeting (conference) of workers, shall be terminated if the parties sign an agreement on the settlement of a collective labor dispute or recognize the strike as illegal, unless otherwise provided by the decision of the meeting (conference).

The strike ends with the signing of an agreement by the disputing parties. But it can also end with a court decision declaring the strike illegal. Control over the fulfillment of the agreement of the parties on a collective labor dispute is carried out by the parties themselves or their authorized bodies.

Article 414 of the Labor Code provided for certain guarantees and the legal status of workers in connection with the strike. For the participants of the strike, the place of work and position shall be preserved for the duration of the strike. During this time, they may not be paid wages by their employer. Employees who do not participate in the strike, but in connection with it are unable to perform their work, are paid for downtime as for downtime

the fault of the worker, i.e. not less than two-thirds of their rate. They can be transferred due to downtime to another job while maintaining their average earnings (if labor standards are met at this job) or their tariff rate (if these standards are not met). A collective agreement, a social partnership agreement or an agreement reached in the course of resolving a collective labor dispute may provide for certain compensation payments to employees participating in a strike, and a more preferential payment procedure for employees not participating in a strike (for example, in all cases during strikes can beat saved pay is not lower than their average earnings).

Moreover, Art. 415 of the Labor Code and Art. 19 of the Federal Law of November 23, 1995 prohibits a lockout, i.e., the dismissal of striking workers or workers involved in a collective labor dispute, as well as the liquidation or reorganization of an organization, branch, representative office during the strike.

The federal law "On the procedure for resolving collective labor disputes" clearly established liability for violation of the legislation on collective labor disputes. Thus, representatives of the employer who evade receiving the demands of employees and participating in conciliation procedures, including those who do not provide premises for holding meetings (conferences) to put forward demands or impede their holding, bear disciplinary or administrative responsibility. They are subject to a disciplinary sanction or a fine in the amount of 10 to 30 times the minimum wage imposed by the court. Representatives of the employer who are guilty of non-fulfillment of obligations under the agreement reached as a result of the conciliation procedure bear the same responsibility. Cases on the imposition of these fines are considered in the manner prescribed by the Code of Administrative Offenses of the Russian Federation.

For failure to comply with agreements reached as a result of conciliation procedures to resolve collective labor disputes, the representatives of the employer and employees personally guilty of this are liable in the manner established by the legislation of the Russian Federation on administrative offenses (Article 416 of the Labor Code). The law provided for the responsibility of workers for holding a suspended or postponed strike or not stopping it the next day after they were informed of a court decision that had entered into legal force on recognizing the strike as illegal or on postponing or suspending the strike. They may be subject to disciplinary action for violating labor discipline.

us, and their absence from work because of this may qualify as absenteeism, which entails dismissal.

Organizers of an illegal strike may be subject to disciplinary action. Persons who force a strike by violence or the threat of violence are held criminally liable and punished with imprisonment for up to one year or correctional labor for up to two years in accordance with the criminal legislation of the Russian Federation.

Organizations whose labor collectives go on strike must bear material liability under supply contracts, work contracts and penalties for the failure of these contracts. This reduces the funds of the organization, including the fund for the social development of the workforce. Damage caused by any strike to other organizations or citizens shall be compensated by the striking organization in accordance with civil law. The organization is responsible here, since it concluded the contract. Compensation for damage caused to the owner by an illegal strike, carried out by decision of the labor collective, is made from the consumption fund of the organization in a judicial proceeding. If the illegal strike was carried out at the initiative of the trade union, then the damage is compensated at the expense of the trade union in the amount determined by the court. In doing so, the court takes into account the property status of the trade union.

The trade union bodies should intensify their work on the prevention of strikes, since they narrow the possibilities of the state and labor collectives in social development. In order to prevent labor disputes, trade unions need to more actively carry out daily analysis of the situation in labor collectives, identify urgent problems, strive to quickly resolve conflict situations and call to account officials who allow infringement of the rights of labor collectives. Trade union bodies should also participate more actively in monitoring the implementation of decisions of conciliation bodies, as well as agreements between employers and labor collectives reached as a result of the strike.

TEST QUESTIONS

1. Expand the concept of "labor dispute".

2. What are the causes and conditions (circumstances) of labor disputes?

3 How can all labor disputes be classified and what are their types? 4. Give a general description of the regulations on the consideration of labor disputes.

5. What are the principles (characteristic features) of the procedure for resolving labor disputes?

6. Expand the concept and meaning of the jurisdiction of individual labor disputes.

7. What is the procedure for resolving individual labor disputes in the CCC and in court?

8. How are the decisions of the CCC and the labor court enforced?

9 Give a general description of the legislation on the resolution of collective labor disputes.

10. Expand the concept and types of collective labor disputes.

11. What are the stages of amicable labor dispute resolution procedures?

12. What is the procedure and terms for resolving a collective dispute in a conciliation commission, with the participation of a mediator and in labor arbitration? "*"

13. What is the role of the Service for the regulation of collective labor

14. What is a strike and what is the order of its announcement?

15. What are the consequences of legal and illegal strikes?

16. What are the rights and obligations of the body leading the strike?

Section III INTERNATIONAL LABOR LAW

The conditions for the emergence of disputes are those conditions, circumstances that directly or indirectly affect labor

relationships, causing unresolved disagreements between workers and management.

The reasons for the emergence of labor disputes are those legal facts that directly caused disagreements between the employee (s) and the administration. Even the reasons common for labor disputes are specific in a specific legal relationship to resolve a labor dispute. These are violations of certain rights of an employee or his obligations to the enterprise (for example, in case of his material liability for the damage caused).

The conditions for the emergence of labor disputes become specific causes in a specific labor dispute. For example, ignorance or neglect of labor legislation by a specific head of an organization leads to a violation of the rights of a particular employee and the emergence of an individual labor dispute between him and the administration.

Often labor disputes arise as a result of a combination of several conditions (reasons). Some of them are economic, others are social, others are legal.

Economic conditions include, in particular, the financial difficulties of organizations that prevent the full and timely payment of wages, the provision of guarantees and benefits due to employees (for example, milk at work in unhealthy conditions, therapeutic and preventive nutrition), lack or insufficiency of funds for labor protection.

The conditions for the emergence of labor disputes of an economic nature give rise to serious social consequences, which, in turn or in combination with economic consequences, give rise to labor disputes. Thus, a lack of funds leads to a reduction in the number of employees or the liquidation of an organization, to ever-growing unemployment. Laid off workers, defending their right to work (workplace), often apply for resolution of a labor dispute and protection of their rights to the judiciary.

The conditions of a social nature include, for example, a growing gap in the income level of low- and high-paid workers.

The conditions of a legal nature include, in particular, the complexity, inconsistency, as well as the lack of accessibility of labor legislation for the administration and especially for employees, as a result - poor knowledge by employees of their labor rights and obligations of employers (administration), ways to protect their rights; unwillingness to comply with labor legislation by many heads of organizations, officials of the administration; poor readiness of trade union leaders, trade union activists to protect workers on the basis of labor legislation. The transition to a market economy has exacerbated the situation in many organizations, exacerbated the causes of labor disputes.

Due to lack of funds, many organizations are forced to temporarily completely or partially stop work. A significant number of enterprises have been liquidated. There were bankrupt companies. Many workers were laid off. Unemployment has become ubiquitous.

Differences in working conditions and in the amount of wages increased sharply. On the one hand, the minimum wage was significantly lower than the subsistence level. On the other hand, wages are no longer limited by the maximum size.

This was facilitated by significant changes in labor legislation that have occurred in recent years: the narrowing of the scope of centralized mandatory regulation of labor relations and the expansion of decentralized and, above all, local regulation, as well as the establishment of working conditions through individual labor agreements (contracts); assignment by the Constitution of the Russian Federation (subparagraph “k” of paragraph 1 of article 72) of labor legislation to the joint jurisdiction of the Russian Federation and its subjects and, as a result, the possibility of regulating labor relations with the help of laws, other regulatory legal acts adopted by authorized bodies like the Russian Federation, as well as its subjects; forced (in order to avoid gaps in the legal regulation of labor relations) combination of Russian legislation with the legislation of the former USSR that retains legal significance (if it does not contradict Russian legislation and there is no legislation of the Russian Federation on the issues resolved by it); inclusion in the system of labor legislation of the Russian Federation of international legal norms and acts (p.

4 tbsp. 15 of the Constitution of the Russian Federation, art. 4 Labor Code).

Trade unions, by their very nature, charters, legislation designed to represent the interests of workers and protect their rights, do not always actively and effectively contribute to resolving disagreements between workers and the administration, do not use all the means at their disposal for this purpose.

The weakening of supervision and control over compliance with labor laws also played a negative role. The creation of new state bodies for supervision and control over compliance with labor legislation (Rostrudinspektsiya under the Ministry of Labor of the Russian Federation) is accompanied by the removal from the competence of the labor inspectorate, which is under the jurisdiction of trade unions, of state power (issuing binding orders, imposing fines). As a result, the number of violations of workers' labor rights has sharply increased, and the legal liability of administration officials for such violations has decreased.

To eliminate the causes of labor disputes, means and methods should be used that affect each of them and in a complex manner.

However, even if all the necessary measures are taken, it is unrealistic to completely eliminate the causes of labor disputes. Labor disputes will not disappear. Their total number may decrease. There may not be disputes on some specific issues, the causes of which are completely eliminated. Disputes may arise on other issues that did not exist before. Therefore, labor disputes will exist for the foreseeable future.

An effective tool for protecting the labor rights of workers is called upon to be the procedure for resolving labor disputes established by law.

Circumstances causing controversy in connection with the application or interpretation of labor legislation, as well as the terms of a collective agreement or an employment contract are the causes of individual labor disputes.

In the legal scientific literature, the causes of individual labor disputes are divided into 2 groups:

Objective (there are contradictions naturally arising from relations on the use of hired labor);

Subjective (determined by shortcomings or errors in the activities of subjects).

The causes of labor disputes are negative factors that cause different assessments by the disputing parties of the exercise of a subjective right or the performance of a labor obligation.

The reasons for which labor disputes are possible can be both the guilty actions of officials (employers) reflecting their subjective negative traits, and illegal actions on the part of the labor collective or a particular employee.

Frequent causes of individual labor disputes are the desire of employees to challenge the lawful actions of the employer or the desire to establish new working conditions without appropriate grounds.

The reasons for collective labor disputes include unsatisfactory working conditions of a particular organization (for example: a low level of organization of labor and production, clearly understated wages, poor quality of materials used by employees and other negative factors that exacerbate conflict situations and cause labor disputes.

The conditions for the emergence of individual labor disputes are factors that contribute to the emergence of disagreements.

The conditions for the emergence of individual labor disputes are divided into 3 groups: economic, social and legal.

The conditions of an economic nature include a change in property relations, which may lead to financial instability of the enterprise.

The conditions of a legal nature include the presence of contradictions and gaps in labor legislation, as well as the lack of necessary knowledge in the field of labor law or gaps.

The conditions of a social nature include the disproportion between the established wages of employees and the subsistence minimum in this region.

The conditions of a labor dispute, as a rule, are the conflict situation preceding it.

The resolution of a labor dispute requires a good knowledge of the essence of the matter, because of which the conflict occurred, clarification of its parties, determination of their legal status, causes and conditions for the conflict.

The dispute arises as a result of the violation or dissatisfaction of any interest of one party in relation to the other, in this case, the legitimacy of the claims presented and the obligation to satisfy them are determined.

The causes of labor disputes are:

1) poorly organized production process;

2) inefficient wage system;

3) technology of performance of work and provision of services that does not meet the standards and technical conditions.

All together creates various kinds of dissatisfaction among employees and, as a result, a negative moral and psychological situation may develop in the team, which contributes to the emergence of labor disputes.

For many years, judicial statistics on the consideration of labor disputes shows that most often the claims of employees are satisfied. However, this does not mean that “the worker is always right”. Often the reason for the "defeat" of the employer in a lawsuit lies in a lack of understanding of the meaning of the requirements of the law. In a previous publication on labor disputes (see Human Resources Bulletin, No. 4, pp. 67-76), we examined the categories of labor cases that fall under the jurisdiction of the courts and issues related to the issuance and enforcement of a judgment. In this article, I would like to talk about one of the options for resolving a labor dispute - the conclusion by the parties of a settlement agreement, and also dwell in more detail on the legal features of the consideration by the courts of certain, the most common categories of labor cases.

Conflicts in the field of labor relations can arise between the parties for a variety of reasons (for example, unfair fulfillment of the terms of an employment contract, failure to fulfill one's duties, non-observance of legitimate interests, direct violation of rights guaranteed by law). A labor conflict does not always transform into a labor dispute, and the dispute rarely becomes the subject of litigation. As you know, this happens only in cases where the “offended” employee (namely, he is most often given the right to initiate a labor dispute by law, although any of the parties can be the culprit of the conflict) initiates an appeal to the labor dispute resolution body, including to court. But often the employee does not want or is afraid to apply to the labor dispute resolution bodies, and, consequently, the conflict remains unresolved. This, in turn, leads to negative consequences for both parties. As a result of an unresolved labor conflict, an employee may experience a feeling of dissatisfaction, stress, decrease labor motivation and labor productivity, and an employer may experience a feeling of permissiveness, which is fertile ground for further violations. Obviously, such a situation can also turn into stress for the employer, for example, if he is held legally liable. Taking into account the trend of strengthening state control and supervision over compliance with labor laws, this becomes quite real.

Since labor conflicts are not taken into account, it is difficult to make an objective conclusion about whether they have become more. Labor disputes, as is known, are subject to registration both at the pre-trial level of their consideration (in the commissions on labor disputes of organizations (CTS)), and in courts. Judicial statistics allow us to talk about an annual increase in the number of labor disputes, which, in turn, may indicate an increase in the legal activity of employees. I would like to draw the attention of employers to this fact, who make illegal decisions based on submissive, non-conflict workers, who will not go to court even in the event of outright violations of their rights. One should not pin high hopes on the widespread negative stereotype of public opinion about the personality of the “complainer”. If earlier it was believed that only “slanderers”, “litigators”, etc. go to court, now significant changes are taking place in the public consciousness, and employees resorting to judicial protection of violated rights are increasingly respected and supported by colleagues.

Interestingly, in the overwhelming majority of cases, the basis for the emergence of labor disputes is a violation of the rights of the employee directly established and guaranteed by law (for example, non-payment of wages in the manner prescribed by law - at least every half a month). Such disputes in many Western countries are usually classified as conflicts of law.

If, according to the law, the parties must resolve the issue by mutual agreement (for example, the issue of dividing the employee's vacation into parts) and cannot come to that, there is no formal basis for the dispute. For example, an employee who applied for a vacation not in full, but in parts and received a refusal from the employer, has no formal reason to complain, since his right to leave is not violated, he will receive it in accordance with the vacation schedule in the prescribed manner. You can try to appeal employer's lack of understanding those reasons that force the employee to apply for the division of leave. True, the Russian practice of considering individual labor disputes does not yet know such examples. In the Western classification, such conflicts are called conflicts of interest. Given the fact that modern Russian labor legislation is focused on contractual relations between the parties (i.e., many issues are determined not by law, but by the parties themselves by voluntary consent), it is likely that similar categories of disputes will also arise in Russia in the near future, which will be considered by the CCC and the courts along with conflicts of law.

Analyzing the grounds for the emergence of labor disputes considered by the courts, we can conclude that the most common are disputes related to the dismissal of employees for various reasons, including disputes about changing the wording of the reasons and dates of dismissal; unjustified and illegal transfers of employees; application of disciplinary sanctions, including dismissal for violation of labor discipline; delays in the payment of wages, as well as related disputes on compensation for moral damage and payment of compensation for the time of forced absenteeism or performance of lower-paid work; disputes on the claims of employers for the recovery from employees of the material (property) damage caused by them. Of course, the courts consider many other categories of cases under their jurisdiction. In the previous publication, we already said that labor disputes on all issues of application of the law, other regulatory acts on labor, the collective agreement and other labor agreements for persons working under an employment contract in an organization of any form of ownership are within the jurisdiction of the courts. Moreover, the court protects the rights and freedoms of citizens, regardless of what subject they are violated. If the subjective labor right is violated by an individual act of applying the norms, then this act can be appealed to the court in compliance with the procedure specified in Art. 391 of the Labor Code of the Russian Federation.

The court has jurisdiction over disputes over the justification for terminating an employment contract with executives appointed to positions by decrees of the Government of the Russian Federation; disputes of civil servants (with the specifics provided for by the Federal Law of July 31, 1995 No. 119-FZ “On the Fundamentals of the Public Service of the Russian Federation”); disputes about the reinstatement of persons dismissed due to the end of the term of elective work and not elected for a new term, if the procedure for holding elections is violated; on illegal dismissal, if an order to this effect is issued by a manager who does not have the right to hire and terminate an employment contract; on the employment of persons released from elective office due to the end of their term of office; on changing the term of the employment contract, if it was concluded in violation of Art. 58, 59 of the Labor Code of the Russian Federation.

The Labor Code of the Russian Federation, in contrast to the Labor Code of the Russian Federation, also includes disputes about transfers to another job to the direct competence of the court (magistrate) of the Labor Code of the Russian Federation.

Disputes arising from

layoffs and transfers of employees

Reinstatement of an employee at a previous job

Article 394 of the Labor Code of the Russian Federation provides for the legal consequences of a dismissal without legal basis or in violation of the law or illegal transfer to another job. And these consequences are quite serious - the worker reinstated at previous job.

Reinstatement at work- this is the return of the employee to the previous legal position that existed before the illegal dismissal or illegal transfer to another job. Reinstated worker:

a) the previous job is provided, i.e. work in the same specialty or in a position with the same working conditions that he performed before the illegal dismissal or transfer;

B) all the time of forced absenteeism is paid or the difference in earnings is paid for the time of performing lower-paid work;

c) monetary compensation for non-pecuniary damage is paid at his request;

d) uninterrupted work experience is restored, and the time of paid forced absenteeism is included in all types of his work experience, including the length of service for the next vacation;

e) from the date of restoration, the employee is entitled to sick leave benefits. It is also restored in other rights to certain benefits and guarantees.

Article 391 of the Labor Code of the Russian Federation establishes the procedure for resolving labor disputes about reinstatement at work with the same working conditions, regardless of the grounds for termination of the employment contract, the initiative of the party to the contract, the procedure for hiring and dismissal, as well as from the organization where the labor function was performed. The decision to reinstate an employee shall specify:

• name of company;
• position (specialty) of the employee;
• all essential working conditions under which the former labor function was previously performed.

The dismissal is considered without legal basis if the termination of the employment contract occurred without the grounds provided for by the relevant federal laws or the Labor Code of the Russian Federation, in particular: Art. 77 of the Labor Code of the Russian Federation "General grounds for termination of an employment contract", art. 81 of the Labor Code of the Russian Federation "Termination of an employment contract at the initiative of the employer", art. 83 of the Labor Code of the Russian Federation "Termination of an employment contract due to circumstances beyond the control of the parties". This primarily applies to those cases where an employee is dismissed on grounds not specified in the law, but included in individual labor contracts. For example: "Fired for violation of corporate ethics."

Therefore, it is very important to know and be able to correctly qualify the grounds for terminating an employment contract in accordance with the norms of the Labor Code of the Russian Federation or other federal laws, and also to understand that if it is impossible to select the appropriate ground from those provided by law, then dismissal cannot be made.

Disputes about dismissal at the initiative of the employee (voluntarily)

The employee's initiative as a ground for terminating an employment contract is the most common reason for terminating an employment relationship. At the same time, everyone is well aware that such a basis is often used in cases where the employer intends to get rid of an unwanted employee. In this case, the emergence of "own desire" is preceded by pressure, blackmail and even threats against him by the employer. Paradoxical as it may sound, employees will appeal against the dismissal made at their “own will” in court (clause 3, article 77 of the Labor Code of the Russian Federation).

Considering disputes related to dismissal at the initiative of an employee, the courts pay attention to the following circumstances:

a) termination of the employment contract at the initiative of the employee is permissible only if he free will. If the plaintiff claims that the administration forced him to submit a resignation letter of his own free will, the court carefully checks these arguments;

b) the employment contract can be terminated before the expiration of the notice of dismissal, but only with the consent of the parties (it is checked whether the employee’s consent is voluntary);

c) an employee who has submitted an application for dismissal of his own free will has the right to withdraw his application before the expiration of the notice period. The only exceptions are cases when another employee is invited to his place, who, in accordance with the law, cannot be refused to conclude an employment contract. If, after the expiration of the warning period, the employment contract has not been terminated and the employee does not insist on dismissal, the contract is considered continued.

Disputes about dismissal at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation)

One of the essential guarantees of the right to work is the restrictive list of grounds established by law for the dismissal of an employee at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation). Some grounds apply to all employees, regardless of the work functions they perform, and therefore are common, others - only to special categories of employees (for example, financially responsible persons, managers, their deputies and chief accountants, persons performing educational functions, etc.) and are additional (clauses 4, 7–10 of article 81 of the Labor Code of the Russian Federation). Some grounds are related to production reasons and do not imply the presence of the employee’s fault (paragraphs 1, 2 of article 81 of the Labor Code of the Russian Federation - liquidation of an organization and reduction in the number or staff of employees), but in some cases depend on his personal qualities (subparagraph “a” and "b" of paragraph 3 of article 81 of the Labor Code of the Russian Federation - inconsistency of the employee with the position held or the work performed). Others - and most of them - are associated with the guilty actions (inaction) of the employee, and dismissal on some of these grounds is a disciplinary measure, and therefore requires compliance with a special procedure (paragraph 5; subparagraphs "a", "b", "c", "d", "e" p. 6; p. 10 article 81 of the Labor Code of the Russian Federation).

The law provides certain rules for the application of each of these grounds, and the courts carefully check their observance.

It's important to know!

In cases on the reinstatement of persons dismissed at the initiative of the employer, the burden of proving the legality of the dismissal and compliance with its procedure lies with the defendant (employer).

Considering the claims of employees dismissed in connection with liquidation of the organization or termination of activity by the employer - an individual (clause 1 of article 81 of the Labor Code of the Russian Federation), the courts first of all find out whether the employer has really ceased its activity.

Since labor legislation does not provide for the concept of liquidation of organizations, it is necessary to rely on the provisions of the Civil Code of the Russian Federation (CC RF), which determine the procedure for the creation, transformation and liquidation of legal entities. In Art. 61 of the Civil Code of the Russian Federation provides that the liquidation of a legal entity entails its termination without the transfer of rights and obligations by way of succession to other persons. The basis for the liquidation of a legal entity may be, for example, a decision by its founders or an authorized body, its bankruptcy, etc. The liquidation is considered completed after the relevant entry is made in the Unified State Register of Legal Entities (Article 63 of the Civil Code of the Russian Federation), and this moment is the last term of dismissal of employees.

Termination of the employment contract under paragraph 1 of Art. 81 of the Labor Code of the Russian Federation is also carried out in the event of the termination of the activities of the employer - an individual, which may occur, for example, as a result of declaring him bankrupt by a court decision, deprivation of a license for certain types of activities, or a decision made by him.

Upon termination of employment contracts under paragraph 1 of Art. 81 of the Labor Code of the Russian Federation, both the very fact of liquidation and compliance with the procedures and guarantees established by labor legislation are important, which is also clarified by the courts.

However, the largest number of court decisions on the reinstatement of employees dismissed at the initiative of the employer is taken when considering labor disputes arising in connection with a reduction in the number or staff of employees of the organization (clause 2 of article 81 of the Labor Code of the Russian Federation). When considering such disputes, the courts check whether there really was a reduction in the number or staff of the organization's employees (i.e., the validity of the dismissal). Often, the employer unfairly uses the specified basis in order to get rid of a certain employee, forgetting that it is not specific individuals that are subject to reduction, but jobs for production reasons. Employees occupying jobs that have become redundant are released in compliance with the guarantees established by law, the main of which is the provision of other work available in the organization. Therefore, the reduction of jobs and the release of the labor force in connection with this does not mean the termination of labor relations. It is possible, for example, to change the labor function of an employee (with his consent), send him for retraining and retraining, etc.

In practice, there are cases when the workplace (position) is reduced, and an undesirable employee is fired as a result. But since this labor function is necessary in the production process, after a while such a position is again returned to the staff list and a new employee is hired. Most often, the manager is concerned about the question: how quickly can a reduced position be returned to the staffing table? The law does not establish such terms, and the right to determine the required number and staff of the employee belongs to the employer. It is only important to prove that at the time of dismissal this workplace (position) really became redundant, and therefore it was reduced. Of course, if after a short time the position is returned to the staff list and another employee takes it, it will not be easy to bring convincing evidence to the court of the need for the reduction. All these circumstances (of course, without interference in the production and economic activities of the employer) are carefully examined by the courts, which allows us to conclude that such dismissals are groundless and the so-called fictitious reduction is carried out. Therefore, the employee must be reinstated in the previous job (in the previous position).

As already mentioned, along with the validity of the dismissal, the courts verify compliance with its legal procedure and order.

When considering disputes on dismissal to reduce the number or staff, the courts perform the following actions:

a) demand from the employer evidence of the employee's refusal to transfer to another job(moreover, the number of such offers is not established and is not limited) or evidence that the employer does not have the opportunity to transfer the employee with his consent to another job in the same organization(Article 180 of the Labor Code of the Russian Federation);

b) find out if the released employee has preferential right to stay at work(Article 179 of the Labor Code of the Russian Federation);
c) check whether he was warned about the upcoming dismissal at least 2 months in advance. If the term for warning the employee about dismissal is not observed, the court has the right to change the date of dismissal (if the employee is not reinstated at work) so that the employment contract is terminated after the expiration of the notice period established by law. Of course, the period for which, in connection with this, the employment contract has been extended, is payable according to average earnings (by analogy with payment for forced absenteeism);

d) check whether the elected trade union body participated in the consideration of this issue- upon release of an employee who is a member of a trade union (Art. 82, 180 of the Labor Code of the Russian Federation).

Attention should be paid to significant changes in the procedure for agreeing with the elected trade union bodies on the dismissal of workers who are members of the trade union. In accordance with Part 2 of Art. 82 of the Labor Code of the Russian Federation dismissal of such employees under paragraph 2; sub. "b" p. 3; paragraph 5 of Art. 81 of the Labor Code of the Russian Federation is made taking into account motivated opinion(but not consent as provided for in Art. 35 of the Labor Code of the Russian Federation) of the elected trade union body of this organization. This means that when a trade union member is dismissed due to a reduction in the number or staff of the organization’s employees, the employer obliged to request on this occasion, a reasoned opinion of the elected trade union body, which must be expressed in writing and submitted to the employer within 7 days from the date of receipt of the draft order. Since the legal text mentions elected trade union body, but in practice most often such is a collegial body - the trade union committee, it seems that its opinion or decision should be developed collectively, and not solely by its leader (for example, the chairman). Therefore, a reasoned opinion can be formalized, in particular, by the minutes of the meeting of the trade union committee, which considered the employer's request for dismissal. The current labor legislation does not establish clear definitions and requirements on this issue, in contrast to the previous strict regulations for the adoption by the trade union body of a decision on consent (refusal of consent) to the dismissal of trade union members. Unfortunately, this is not the only omission of the legislation.

Often, mistakes made by employers when dismissing employees are due to precisely such shortcomings, i.e. the lack of clear definitions of legal concepts and clearly formulated procedural requirements in the norms of the law. In most cases, they are replenished by the highest bodies of the judiciary. The Supreme Court of the Russian Federation summarizes the practice of applying the current legislation when considering certain categories of civil cases (including labor cases) by the courts, and identifies problems and shortcomings. Based on the results of the analysis of the application of legislation, the Plenum of the Supreme Court of the Russian Federation adopts relevant decisions that are binding on the judiciary when they consider similar civil cases. In particular, we find answers to certain questions arising from labor relations in the repeatedly mentioned resolution of the Plenum of the Supreme Court of the RSFSR dated December 22, 1992 No. 16 “On Certain Issues of the Application of Legislation by the Courts of the Russian Federation in the Resolution of Labor Disputes”, which is applied by courts with taking into account the norms of the new Labor Code of the Russian Federation.

It is interesting to note that the largest number of court decisions that satisfied the claims of workers for reinstatement were court decisions in cases of reinstatement of persons dismissed at the initiative of the employer, which are based on the identification by the judicial authorities violations of the dismissal procedure. And the reason for this state of affairs is not limited to gaps in the legislation. Employers often make mistakes even when applying quite clearly and specifically formulated legal norms, apparently due to an insufficient level of legal knowledge. Deliberate violations of the established procedure for dismissal are also widespread, which may indicate a low level of legal culture.

It's important to know!

The courts consider the following to be a violation of the established procedure for dismissal:

a) when the dismissal was made immediately for several different reasons;

b) when the dismissal was made contrary to the norms of the Labor Code, which prohibit the dismissal of employees for some reason, if their transfer to another job is possible, as well as dismissal at the initiative of the employer during the period of vacation or temporary disability (Article 81 of the Labor Code of the Russian Federation);

c) when the dismissal to reduce the number or staff of employees was made without taking into account the norms establishing the pre-emptive right to remain at work (Article 179 of the Labor Code of the Russian Federation);

d) when the dismissal was made without the participation of an elected representative trade union body of workers, if such is recognized as mandatory (Article 82 of the Labor Code of the Russian Federation);

e) if the employee is dismissed without complying with the requirements for a warning upon dismissal due to the expiration of the employment contract (Article 79 of the Labor Code of the Russian Federation);

f) dismissal of a pregnant woman at the initiative of the employer, with the exception of cases of liquidation of the organization, as well as in connection with the expiration of the fixed-term employment contract before she has the right to maternity leave (Article 261 of the Labor Code of the Russian Federation);

f) dismissal of a woman with a child under the age of 3, a single mother with a child under the age of 14 (a disabled child under 18), other persons raising children without a mother, on grounds not related to guilty behavior an employee, with the exception of the complete liquidation of the organization or the termination of activities by the employer - an individual, as well as in connection with the inconsistency of the employee with the position held or work performed for health reasons (Article 261 of the Labor Code of the Russian Federation);

g) dismissal of an employee under the age of 18 at the initiative of the employer (except in cases of liquidation of the organization), carried out without the consent of the state labor inspectorate and the commission for minors and the protection of their rights (Article 269 of the Labor Code of the Russian Federation). This applies both to cases when the dismissal is made contrary to the opinion of these bodies, and to cases when the employer did not apply to these bodies at all;

h) dismissal of certain categories of workers contrary to the prohibition and restriction (i.e. without observing the guarantees established for them), in particular, the dismissal of a trade union member under paragraph 2; sub. "b" p. 3; paragraph 5 of Art. 81 of the Labor Code without taking into account the motivated opinion of the elected trade union body (Article 373 of the Labor Code of the Russian Federation), as well as the dismissal on the indicated grounds of the heads of elected trade union collegial bodies and their deputies who are not released from their main work, without the prior consent of the relevant higher elected trade union body (Article 373 of the Labor Code of the Russian Federation). 374 of the Labor Code of the Russian Federation) and former heads of elected trade union bodies and their deputies within 2 years after the end of their term of office (Article 376 of the Labor Code of the Russian Federation);

f) dismissal, at the initiative of the employer, of representatives of employees during the period of collective bargaining without the prior consent of the body that authorized them to represent them, with the exception of cases of dismissal for disciplinary violations (Article 39 of the Labor Code of the Russian Federation), as well as dismissal of representatives of employees participating in the resolution of a collective labor dispute , without the prior consent of the body that authorized them to represent them (Article 405).

As mentioned above, an illegally dismissed employee must be reinstated in his previous job. However, Part 3 of Art. 394 of the Labor Code of the Russian Federation provides that, at the request of an employee who does not want to be reinstated in his previous job, the court has the right to limit itself to making a decision on payment for forced absenteeism and change the wording of the grounds for dismissal - “termination of the employment contract at the initiative of the employee” (clause 3 of article 77 of the Labor Code of the Russian Federation) . This usually happens in cases where the employee has already found a job and does not intend to continue the employment relationship with the previous employer.

An employee may also initially file a lawsuit to change the wording of the reason for dismissal, rather than reinstatement. If the wording is recognized as incorrect or not in accordance with the current legislation, a decision is made to change it in strict accordance with the law. And if the incorrect wording of the dismissal complained by the employee in the work book prevented him from going to work, then simultaneously with the decision to change the wording, a decision is made to pay for the time of forced absenteeism.

Depending on the circumstances of the case that have come to light, the court may go beyond the claims made by the plaintiff if it considers it necessary to protect the rights and legally protected interests of the plaintiff, as well as in other cases provided for by law (Article 195 of the Code of Civil Procedure of the Russian Federation). For example, when considering a claim for reinstatement at work, the court explains to the employee that he can make an additional claim for payment for forced absenteeism.

Forced absenteeism is the time during which the employee, through the fault of the employer, was deprived of the opportunity to work and receive wages.

Issues related to forced absenteeism (establishment of the fact, duration, amount of compensation, etc.) are almost always considered by the courts in cases of reinstatement at work, as well as other cases related to dismissal. Compensation for involuntary absenteeism is currently not limited by any time frame and is paid for all actual time of forced absenteeism.

Labor disputes related to the transfer of an employee to another job

The transfer of an employee to another job is a change in his labor function or essential terms of the employment contract. Such a transfer, as a rule, is allowed only with the written consent of the employee. It is impossible to require an employee to perform work that is not provided for by the employment contract. The written form as a prerequisite only emphasizes the importance of the voluntariness of the expression of will. Of course, there are exceptions to the general rule both in the legal norms themselves and in their application in practice. Some deviations from compliance with the established translation rules are the basis for disputes.

It's important to know!

The transfer is considered illegal if it is made without sufficient grounds or in violation of the procedure established by law.

The grounds are established only for certain types of transfers. Thus, the basis for a temporary transfer in the event of a production need is the presence of circumstances provided for by law (for example, to prevent a catastrophe, industrial accident or natural disaster; to prevent accidents, downtime, and also to replace an absent employee). In the absence of the grounds provided for in Art. 74 of the Labor Code of the Russian Federation, the translation is recognized as illegal.

Illegal are transfers made in violation of the procedure prescribed by law, in particular:

a) transfer to another permanent job, made without the consent of the employee (Article 72 of the Labor Code of the Russian Federation);

b) transfer to work that is contraindicated for the employee for health reasons (Article 74 of the Labor Code of the Russian Federation);

c) the transfer, at the initiative of the employer, of representatives of employees during the period of collective bargaining without the prior consent of the body that authorized them to represent them (Article 39 of the Labor Code of the Russian Federation);

d) transfer at the initiative of the employer of representatives of employees, their associations during the period of resolution of collective labor disputes (Article 405 of the Labor Code of the Russian Federation).

Consideration by the courts of the employee's claims for compensation for moral damage (harm)

When considering labor disputes in the courts, workers' compensation claims are becoming more common. moral damage. In this regard, it is important for both parties of labor relations to know what this concept includes from a legal point of view.

Moral harm caused in the sphere of labor relations was considered for a long time in accordance with the norms of civil law (Articles 151, 1101 of the Civil Code of the Russian Federation). According to Art. 151 of the Civil Code of the Russian Federation, moral harm implies the presence of physical and moral suffering caused by actions that infringe on personal non-property rights (the right to a name, authorship, etc.) or on intangible benefits belonging to a citizen (life, health, personal dignity, business reputation, inviolability privacy, etc.) .

Judicial practice on compensation for moral damage was summarized in the resolution of the Plenum of the Supreme Court of the Russian Federation “Some issues of the application of legislation on compensation for moral damage” dated December 20, 1994 No. 10 (as amended and supplemented). And although the Supreme Court of the Russian Federation did not give a general definition of physical and moral suffering, in paragraph 3 of the said decision, an attempt was made to reveal the content of one of the types of moral harm - moral suffering, which should be understood as “moral or physical suffering caused by actions (inaction) that encroach on intangible benefits belonging to a citizen from birth or by virtue of law (life, health, personal dignity, business reputation, privacy, personal and family secrets, etc.) .p.) or violating his personal non-property rights (the right to use his name, authorship), or violating the property rights of a citizen.

Only in 1997 did the concept of moral harm enter into labor law. In accordance with the Federal Law of March 17, 1997 No. 59-FZ “On Amendments and Additions to Article 213 of the Labor Code of the Russian Federation”, an employee was given the opportunity to apply to the court for monetary compensation for moral damage in the event of unlawful dismissal or transfer. Norms on compensation for moral harm caused to an employee are also contained in the new Labor Code of the Russian Federation. In particular, Part 7 of Art. 394 of the Labor Code of the Russian Federation, as well as part 5 of Art. 213 of the Labor Code of the Russian Federation, provides for the possibility of recovering moral damages for illegal dismissal and transfer to another job. But especially significant is the emergence of a new norm in the Labor Code of the Russian Federation, which provides for the right to compensation for moral damage. without reference to specific types of employer's offenses (Article 237 of the Labor Code of the Russian Federation “Compensation for moral damage caused to an employee”) . This means that the employee has the right to apply for compensation for moral harm in all cases of violation of his labor rights, accompanied by moral or physical suffering.

The law provides for compensation for non-pecuniary damage in monetary form, the amount of which may be determined by agreement of the parties to the employment contract. In the event that such an agreement between them is not reached and a labor dispute arises on this occasion, the employee has the right to file a lawsuit in court (with a justice of the peace). The court determines the existence of the fact of non-pecuniary damage, i.e. physical and moral suffering of an employee in violation of his right to work. The decision shall indicate the grounds for recovery and the amount of compensation, which is also determined by the court (magistrate).

It's important to know!

To compensate for non-pecuniary damage, it is necessary to have the following conditions at the same time, defined by Art. 151 of the Civil Code of the Russian Federation:

a) the fact of moral damage (harm). Determining the presence of moral harm in the sphere of labor relations, first of all, they mean moral suffering and experiences in mental sphere of a person, caused to him by infringements on his labor rights (for example, in cases of illegal dismissal or transfer to another job). physical harm, as is known, is expressed in causing physical pain associated with damage to health or illness due to moral suffering;

b) unlawful actions (inaction) of the tortfeasor, i.e. the actions of the employer who violated the labor rights of the employee are recognized as illegal from the point of view of labor legislation;

in) causal relationship between illegal action (inaction) and non-pecuniary damage. This means that it is the unlawful action (inaction) committed by the employer that is the main cause of moral harm. For example, if, as a result of the illegal application of a disciplinary sanction, an employee experiences strong feelings (moral suffering) and, in connection with this, suffers a hypertensive crisis (physical suffering), then there is cumulative moral harm, which is a consequence of the unlawful actions of the employer (illegal application of the sanction), i.e. e. is with these actions in a causal relationship;

G) fault of the perpetrator. The principle of guilt is a prerequisite for holding the employer accountable, which follows from the analysis of Part 2 of Art. 151 of the Civil Code of the Russian Federation, which states that “when determining the amount of compensation for moral damage, the court takes into account the degree of guilt of the violator ...”. In addition, as mentioned above, the non-pecuniary damage subject to compensation must not be caused by any actions of the employer, but only by those that are recognized by law as unlawful, which also implies guilt.

When determining the amount of compensation for moral damage, the court also takes into account the degree of physical and moral suffering associated with the individual characteristics of the person who was harmed (part 2 of article 151 of the Civil Code of the Russian Federation), their nature and the actual circumstances of their infliction (part 2 of article 1101 of the Civil Code of the Russian Federation ). When determining the amount of compensation for non-pecuniary damage, the requirements of reasonableness and fairness must be taken into account.

Often, when causing moral harm, property damage is also caused, which is compensated regardless of compensation for moral damage (clause 3, article 1099 of the Civil Code of the Russian Federation).

Completion of a labor dispute by amicable agreement of the parties

Disputes considered in civil proceedings, including labor disputes, can be completed by an amicable agreement (Article 39 of the Civil Code of the Russian Federation).

settlement agreement- this is an agreement of the parties to terminate the litigation on the basis of mutual concessions.

A settlement agreement can be concluded not only during the trial, but also at other stages of the process - when considering the case by the cassation instance, at the stage of execution of the judgment. The possibility of resolving the dispute through a settlement agreement is clarified by the judge in the process of preparing the case for trial. Control over the legality of the settlement agreement belongs to the court: it does not approve it if it is contrary to the law or violates someone's rights and legally protected interests. The terms of the settlement agreement, stated by the party orally at the court session, are recorded in the minutes and signed by both parties, and those presented in writing are attached to the case. When approving a settlement agreement, the court issues a ruling on termination of proceedings, which specifies its terms.

It's important to know!

The approval of the settlement agreement by the court entails important legal consequences:

a) the impossibility of a second consideration by the court of the same claim;

b) enforcement of a settlement agreement at the request of one of the parties.

A labor dispute considered by a court may also be terminated in connection with plaintiff's waiver of claims(Article 39 of the Civil Code of the Russian Federation).

The courts pay special attention to the verification of conditions settlement agreement labor matters, and waiver of claims so that they comply with the norms of labor legislation and do not violate anyone's rights and legally protected interests.

It is unacceptable to approve a settlement agreement in the event that its terms in any way violate the labor rights of an employee or, bypassing the law, are aimed at relieving the employer from liability for harm caused to the organization.

When deciding whether to accept waiver of claim on reinstatement or approval of a settlement agreement of the parties on such a claim, the court finds out whether these actions are contrary to the law and the interests of the parties.

The conditions under which the parties have reached an amicable agreement are reflected in the minutes of the court session and signed by the parties. These conditions must be clear, definite and not open to different interpretations, so as not to give rise to disputes in execution.

Conclusion

Analyzing the practice of consideration of labor disputes in courts, there is a double feeling. On the one hand, every employee has the right to apply to an independent judicial body for legal protection, and this protection is actually carried out. Judicial statistics confirm this: in the overwhelming majority of cases, workers' claims are satisfied. But, on the other hand, we perfectly understand and know that only a few apply to the courts and only in extreme cases, although labor violations are widespread. Why do most workers whose rights are ignored and violated prefer to remain silent and do not seek legal protection?

Among the many reasons, the most obvious are economic, social, psychological, cultural and legal. From a legal point of view, it is entirely possible to improve the effectiveness of worker protection, and movement in this direction is already underway. First of all, this is the improvement of the legal norms themselves, filling in the gaps in the legislation. As you know, labor legislation is constantly being updated, significant amendments to the Labor Code of the Russian Federation are being prepared, etc. A lot of preparatory work is being done to develop the concept of independent legal proceedings in labor cases, in particular, a draft Federal Law “On the phased creation of specialized labor courts” has been prepared and the concept of the Labor Procedure Code is being developed. Taking into account the special specifics of labor cases, as well as all those financial, personnel and other problems that courts of general jurisdiction constantly experience, it seems necessary to separate labor proceedings from the general mass of civil cases. If such specialized labor courts are really created and staffed by qualified judges - specialists in the field of labor law, there is every reason to expect a significant increase in the quality of consideration of labor disputes, and consequently - an increase in the confidence of citizens. And then, perhaps, the number of unresolved conflicts that the employee can resolve in a civilized way in a specialized court for labor disputes will decrease.

In this publication, we are not able to analyze in detail the judicial practice of considering each of these grounds separately. Let us dwell only on some of the general and most important, in our opinion, requirements imposed by the courts when considering labor disputes.

Reasons, conditions for the emergence of labor disputes

At the heart of any labor dispute are circumstances of an objective and subjective nature, which are considered to be its causes. However, not all such circumstances can be considered as causes of labor disputes in the strict sense, because such are only those of them that inevitably give rise to these disputes. Therefore, it is necessary to distinguish between the causes of labor disputes, their causes and conditions that contribute to their occurrence.

Knowing the reasons, we thereby answer the question of why this or that dispute arose. The reason for most labor disputes is the natural opposition of the interests of the parties to the employment contract, which consists in the desire of the employer to "load" the employee at the lowest cost for himself, and the employee, in turn, to receive a decent wage, to have good working conditions also with the least expenditure of effort, knowledge and skills. It is extremely difficult to establish a balance of these interests, which leads to the emergence of disagreements that cannot be resolved through direct negotiations. The second most important reason for labor disputes is the difference in the actual position of the employer and employee in the labor market, where the latter is economically weaker and less protected. This allows the employer to dictate his terms when concluding an employment contract, to which the employee is forced to agree and which often contradict the current legislation. Subsequently, the employee raises the issue of bringing these conditions back to normal, to which he does not receive the consent of the employer, and this, as a rule, is already a conflict situation requiring the intervention of special bodies.

Terms by themselves do not give rise to a labor dispute; they only contribute to the action or manifestation of causes. Labor disputes can be of three types: organizational and production, legal and economic character. For example, shortcomings in the organization of production can lead to downtime through no fault of the employee, to the so-called forced vacations, which contradicts the terms of the employment contract and is a circumstance that contributes to the emergence of labor disputes. But this is not the reason, since such an environment does not always give rise to them. The conditions of a legal nature include ignorance or poor knowledge by the parties of an employment contract of the norms of labor legislation, existing gaps and conflicts in the latter. If these circumstances are considered the reasons, then labor disputes would be a ubiquitous phenomenon, because it is difficult to find an employee and a representative of the employer who are fluent in labor legislation, and miscalculations in legal practice are so numerous that only because of this labor disputes would become a general rule in application of labor law. The conditions of an economic nature include a protracted production crisis, a crisis in the financial and other markets of our country.

Unlike causes and conditions occasion for labor disputes is the specific situation that immediately precedes them and, as it were, provokes their occurrence. A typical reason in this regard is a violation of labor law by both the employer and the employee. For example, an employee, in violation of the law, is transferred without his consent to another job, deliberately or unknowingly they are not given personal protective equipment, which naturally causes dissatisfaction of the employee and serves as a kind of impetus for the emergence of a conflict and its development. But, of course, not every violation of labor law entails a labor dispute. In this regard, we can say this: the number of relevant violations is far from corresponding to the number of labor disputes, and this already indicates that they do not in themselves give rise to a dispute, but only create an environment that serves as an incentive for its occurrence, accelerating the action of its causes. and conditions.

The existence of labor disputes is a phenomenon that is undesirable in the development of labor relations: neither the parties to the employment contract nor the state are interested in disputes, since in the end they lead to additional material costs, moral costs. Nevertheless, they should not be considered exclusively as a negative phenomenon of social life. There are also a number of positive aspects in labor disputes. In particular, they contribute to the identification of violations of labor legislation, their resolution restores the normal course of development of labor relations, allows subjects to receive what was provided for by the labor or collective agreement, labor legislation, normalizes the psychological and moral climate in the labor collective, etc.