Protection of labor rights and legitimate interests of workers by trade unions and self-defense of labor rights by workers. The main ways to protect the labor rights and legitimate interests of employees Protection of the rights and legitimate interests of employees

Judicial protection.

For the purpose of self-defense

about refusal to hire;

to court

Supervision and control over compliance with labor legislation.

Supervision and control over compliance with labor legislation are types of protective activities of state bodies and public organizations aimed at ensuring the labor rights of citizens and suppressing violations of labor legislation.

Supervision is the activity of state bodies to ensure the accurate, steady and uniform implementation of laws.

Control - checking the compliance of the employer's activities with the requirements of regulatory enactments. The distinction between supervisory and control activities is made according to the competence and functions of the supervisory and supervisory authorities, as well as the methods of work and the implementation of the instructions of the supervisory and control authorities.

Differences:

Supervision is the activity of state bodies for the implementation of the exact strict enforcement of laws, and control is an integral part of management activity, the essence of which is to verify the compliance of the activities of controlled objects at enterprises with legal regulations, the adjustment and application of sanctions to guilty persons.

Protection of labor rights of workers by trade unions.

Trade union- a voluntary public association of citizens connected by common industrial, professional interests by the nature of their activities, created in order to represent and protect their social and labor rights and interests.

Trade unions are independent in their activities from executive authorities, local self-government, employers, their associations, political parties and other public associations, are not accountable and are not controlled by them.

The main function of trade unions is to protect and is implemented in four organizational and legal forms: the participation of trade unions in social partnership relations; participation in the application of established working conditions in the organization; participation in the resolution of labor disputes; exercising trade union control over the observance of labor legislation.

Trade unions have the right to exercise control over the observance by employers and their representatives of labor legislation and other normative legal acts containing labor law norms. In this regard, employers are obliged, within a week from the date of receipt of the requirement to eliminate the identified violations, to inform the relevant body of the trade union organization about the results of consideration of this "requirement and the measures taken.

Trade union labor inspectors have the right to:

To freely visit organizations, regardless of their organizational and legal forms and forms of ownership, in which members of this trade union or trade unions that are members of the association work;

Conduct an independent examination of working conditions and ensuring the safety of employees of the organization;

Protect the rights and interests of members of the trade union on the issues of compensation for harm caused to their health at work;

Check the state of conditions and labor protection, fulfill the obligations of employers stipulated by collective agreements and agreements;

Participate in the work of commissions for testing and commissioning of production facilities and means of production as independent experts;

Participate in the investigation of accidents at work and occupational diseases.

Trade unions in the exercise of their powers interact with state bodies of supervision and control over compliance with labor legislation. Authorized persons for labor protection of trade unions have the right to freely check in organizations compliance with labor protection requirements and make proposals, mandatory for consideration by officials, to eliminate the identified violations of labor protection requirements.

Formation and competence of commissions on labor disputes (CTC).

Article 384. Establishment of commissions on labor disputes.

Labor dispute commissions are formed at the initiative of employees and (or) the employer (organization, individual entrepreneur) from an equal number of representatives of employees and the employer. An employer and a representative body of employees who have received a written proposal to establish a labor dispute commission are obliged to send their representatives to the commission within ten days (part one as amended by Federal Law No. 90-FZ of 30.06.2006).

Representatives of the employer to the commission on labor disputes are appointed by the head of the organization, the employer - an individual entrepreneur. Representatives of employees to the commission on labor disputes are elected by the general meeting (conference) of employees or delegated by the representative body of employees with subsequent approval at the general meeting (conference) of employees (part two as amended by Federal Law No. 90-FZ of 30.06.2006).

By decision of the general meeting of employees, labor dispute commissions may be formed in structural subdivisions of the organization. These commissions are formed and operate on the same basis as the commissions on labor disputes of the organization. The commissions on labor disputes of structural subdivisions of organizations may consider individual labor disputes within the powers of these subdivisions.

The Labor Disputes Commission has its own seal. Organizational and technical support for the activities of the commission on labor disputes is carried out by the employer.

The commission on labor disputes elects from among its members a chairman, a deputy chairman and a secretary of the commission.

Article 385. Competence of the commission on labor disputes.

The Labor Disputes Commission is a body for the consideration of individual labor disputes, with the exception of disputes for which this Code and other federal laws establish a different procedure for their consideration.

An individual labor dispute is considered by a labor dispute commission if the employee, on his own or with the participation of his representative, has not settled the differences during direct negotiations with the employer.

The main ways to protect labor rights and legitimate interests of employees.

Everyone has the right to protect their labor rights and freedoms by all means not prohibited by law.

The main ways to protect labor rights and freedoms are: (st352TK)

Self-defense by employees of labor rights;

Protection of labor rights and legitimate interests of employees by trade unions;

State control (supervision) over compliance with labor legislation and other regulatory legal acts containing labor law norms;

Judicial protection.

For the purpose of self-defense labor rights, an employee may refuse to perform work not provided for by the employment contract, as well as directly threatening his life and health. At the time of refusal from the specified work, the employee retains all the rights provided for by labor legislation and other acts containing labor law norms.

In the event of a delay in the payment of wages for more than 15 days, the employee has the right to suspend work for the entire period until the payment of the delayed amount. It should be borne in mind that the employee is obliged to notify the employer or his immediate supervisor in writing of the refusal to perform work or the suspension of work.

Suspension of work is not allowed: during periods of martial law, a state of emergency or special measures in accordance with the legislation on a state of emergency; in bodies and organizations for rescue, search and rescue, firefighting, work on the prevention or elimination of natural disasters and emergencies, in law enforcement agencies; civil servants; in organizations directly serving especially dangerous types of production, equipment;

In accordance with Art. 380 of the Labor Code of the Russian Federation, the employer, representatives of the employer do not have the right to prevent employees from exercising self-defense of labor rights.

To protect their labor rights and legitimate interests, resolve individual labor disputes workers have the right to apply to trade unions (if any) and to the State Labor Inspectorate.

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;

about refusal to hire;

about unlawful actions (inaction) of the employer in the processing and protection of personal data of the employee, etc.

In accordance with Article 392 of the Labor Code of the Russian Federation, an employee has the right to apply to court within three months from the day when he found out or should have found out about the violation of his right, and in case of dismissal disputes - within one month from the day a copy of the dismissal order was handed to him or from the day the work book was issued.

The deadline for applying to the court, missed for good reasons, may be restored by the court. However, in the absence of valid reasons, missing the deadline for applying to the court is the basis for refusing to satisfy the claims of the employee. An employee's statement of claim to a labor court is not subject to state duty.

Thirdly, the protection of rights, freedoms and legitimate interests is considered as a set of legal means aimed at suppressing offenses, restoring a violated right, removing obstacles to the implementation by individual subjects of their rights and freedoms.

Basically, the protection of the right is considered in direct connection with the offense (failure to fulfill a legal obligation), abuse of the right, an obstacle to its implementation. In the absence of a violation of the right, there is no place for its protection. However, an analysis of the legal norms provided for by the Labor Code, which operate in a certain relationship with each other, allows us to assert that there is every reason to define it in a broader sense - as the protection of law. Indeed, the entire arsenal of legal means is aimed not only at protecting the labor rights of workers (in case of their violation). They are subject to application, including for the purpose of preventing an offense, ensuring the exercise by employees of their rights, freedoms and legitimate interests. The presence of different approaches to the definition of the concept under consideration allows us to assert that the category of “protection of the labor rights of workers” is a multifaceted, multifaceted phenomenon.

It should be noted that Russian legislation uses two legal terms: “protection of the right” and “right to protection”, the concepts of which differ from each other both in content and in scope. According to paragraph 1 of Art. 45 of the Constitution of the Russian Federation, everyone is guaranteed state protection of the rights and freedoms of man and citizen in Russian Federation including the right to work. In accordance with paragraph 2 of Art. 45 of the Constitution of the Russian Federation, everyone has the right to protect their rights and freedoms by all means not prohibited by law.

The provisions of Art. 30 of the Constitution of the Russian Federation establish the right of everyone to associate, including the right to create trade unions to protect their interests.

Ensuring the right of workers and employers to associate to protect their rights and interests, including the right of workers to form and join trade unions, is one of the basic principles of labor law (Article 2 of the Labor Code). At the same time, the Constitution of the Russian Federation guarantees the right to protection. At the same time, by virtue of Art. 2 of the Labor Code, one of the basic principles of labor law proclaims that everyone has the right to protection by the state of his labor rights and freedoms, including judicial protection.

The protection of the labor rights of employees is carried out through the established Art. 352 of the Labor Code of methods that are aimed at preventing, suppressing violations of labor laws, restoring a violated right and (or) compensation, including when it is not possible to restore a violated right.

Consequently, the protection of the labor rights of employees is a set of methods to be applied in the forms (procedure) established by law, which are aimed at preventing, suppressing violations of labor legislation, restoring a violated right and (or) compensation.

In contrast to the protection of the right, the right to protection is nothing more than a subjective right, the right of everyone to protect their rights by all means not prohibited by law. Its implementation depends on the will of the authorized person (the person who owns this right), since it involves a measure of possible behavior to protect the rights provided for by labor legislation. Corresponding with the subjective right is the legal obligation of the obligated person to carry out activities to prevent, suppress, eliminate the offense, restore the violated right (compensate in another way for the harm caused by the offense).

Thus, the realization of the subjective right to protection is provided by legal means, it, like any other subjective right, is guaranteed by the state and is subject to protection in case of its violation.

For example, the realization by an employee of the right to timely and full payment of wages is ensured by the legal obligation of the employer to pay wages on time and in the amount established in accordance with the Labor Code of the collective agreement, local acts of the employer, labor contract. In case of violation (improper performance) by the employer of his duties, the employee has the right to apply any methods of protection not prohibited by law, that is, to exercise his right to protection. The realization of the right to protect the violated right to wages is ensured by the presence of certain legal means that not only stimulate the employer to fulfill his duties, but also allow the restoration of the violated right. So, the employee has the right to suspend work in compliance with the rules provided for in Art. 142 of the Labor Code, exerting a certain influence on the employer, which in some cases ensures the fulfillment by the employer of his obligations to the employee. In accordance with Art. 352 of the Labor Code, an employee has the right to apply for protection of a violated right to a trade union, to the state labor inspectorate, to the court, which, within their powers, have the opportunity to oblige the employer to fulfill legal obligations, influence him, including the use of cardinal means of response. For example, supervisory and judicial authorities have the right to directly restore the violated right, to compensate for the harm caused to the employee as a result of violation of his subjective right.

Thus, the methods of protecting the rights, freedoms and legitimate interests of employees are understood as legal means, the use of which is aimed at preventing, suppressing offenses, restoring a violated right and (or) otherwise compensating for harm caused by an offense.

Three types of protection of subjective rights, freedoms and legitimate interests are known: judicial, pre-trial and extrajudicial. As can be seen from their name, judicial protection is applied exclusively by the judiciary. Pre-trial and extra-judicial defense is carried out in a different way (without the participation of courts). At the same time, pre-trial defense precedes (may precede as an alternative) judicial defense. For example, pre-trial protection of the rights of an employee is carried out by labor dispute commissions due to the fact that it takes place only before applying for judicial protection. After the case has been considered by the court, the labor dispute committee is not entitled to carry out its activities. Out-of-court defense, in contrast to pre-trial defense, can take place before the trial, in the process of judicial defense, and after the court has completed activities aimed at protecting the violated right. For example, mediation can be attributed to the number of extrajudicial protection of a violated right, the procedure for the implementation of which is established by the Federal Law of July 27, 2010 No. 193-FZ (as amended on July 23, 2013) “On an alternative procedure for resolving disputes with the participation of an intermediary (mediation procedure )".

As a rule, the protection of rights, freedoms and legitimate interests is ensured by the activities of authorized entities. In this sense, protection is defined as “law enforcement activity carried out in accordance with the procedure established by law by an employee (directly or through their representatives) and authorized bodies, which is expressed in the application of legal means to an employer who performs the duties assigned to him and (or) performs actions hindering the normal exercise of workers' rights.

In the course of protecting subjective rights, freedoms and legitimate interests, legal relations arise, one of the subjects of which, as a rule, is an authorized (competent) body (the exception is self-defense).

In addition, the subject of supervision is also the compliance with the laws of legal acts issued by the above bodies and officials. Thus, the prosecutor's office supervises, among other things, the activities of supervisory bodies of state power, thus ensuring the rule of law in this area and the exercise of rights, including the right to protect controlled (supervised) entities.

Among the federal executive bodies vested with the authority to exercise control (supervision) in the sphere of the use of hired labor, two groups of bodies designed to exercise supervision over:

• safe conduct of work in certain areas of activity;
• compliance with labor laws.

Among them, we can single out the Federal Service for Environmental, Technological and Nuclear Supervision, acting in accordance with the Decree of the Government of the Russian Federation of July 30, 2004 No. 401 (as amended on January 17, 2015) “On the Federal Service for Environmental, Technological and Nuclear supervision” (hereinafter referred to as Resolution No. 401). It is designed to exercise state supervision over compliance with the requirements for the safe conduct of work at hazardous production facilities and federal state energy supervision.

This service is also:

• authorized body state regulation safety in the use of atomic energy (by the body of federal state supervision in the field of the use of atomic energy);
• the authorized body in the field of industrial safety (body of federal state supervision in the field of industrial safety);
• body of state mining supervision;
• the body of the federal state energy supervision and the body of the federal state construction supervision.

Its functions include the control and supervision of:

• observance of norms and rules in the field of the use of atomic energy, for the conditions of validity of permits (licenses) for the right to conduct work in the field of the use of atomic energy;
• nuclear, radiation, technical and fire safety (at nuclear facilities);
• physical protection of nuclear installations, radiation sources, storage facilities for nuclear materials and radioactive substances, for systems of unified state accounting and control of nuclear materials, radioactive substances, radioactive waste;
• compliance with industrial safety requirements in the design, construction, operation, conservation and liquidation of hazardous production facilities, manufacture, installation, adjustment, maintenance and repair of technical devices used at hazardous production facilities, transportation of hazardous substances at hazardous production facilities;
• compliance with safety requirements in the electric power industry;
• safe conduct of work related to the use of subsoil;
• compliance with the requirements fire safety at underground facilities and during blasting operations;
• compliance with mandatory requirements by legal entities, their heads and other officials, individual entrepreneurs, their authorized representatives engaged in the operation, overhaul, conservation and liquidation of hydraulic structures (with the exception of shipping and port hydraulic structures);
• conducting a mandatory energy audit within the prescribed period.

Along with this, it also performs certain functions that are associated with control over relations in the sphere of labor in this industry.

The Federal Service for Ecological, Technological and Nuclear Supervision, in accordance with the legislation of the Russian Federation, licenses activities in the field of the use of atomic energy, issues permits for the right to conduct work in the field of the use of atomic energy to employees of nuclear facilities, for the operation of supervised hydraulic structures, for admission to operation power receivers of electric energy consumers, electric energy production facilities, as well as electric grid facilities owned by grid organizations and other persons (in cases provided for by regulatory legal acts of the Russian Federation); establishes standards for maximum permissible releases of radioactive substances into the atmospheric air and standards for permissible discharges of radioactive substances into water bodies; registers hazardous production facilities and maintains the state register of such facilities; conducts inspections (inspections) of compliance by legal entities and individuals with the requirements of the legislation of the Russian Federation, regulatory legal acts, norms and rules in the established field of activity; manages as part of a unified state system prevention and elimination of emergency situations by the activities of functional subsystems for monitoring chemically hazardous and explosive objects, as well as nuclear and radiation hazardous objects; maintains registers of industrial safety declarations, industrial safety expert opinions; exercise other powers in the established field of activity.

It is impossible not to say about the federal state executive bodies, called upon to carry out by virtue of Art. 368 of the Labor Code state supervision over compliance by employers with sanitary and hygienic and sanitary and anti-epidemiological norms and rules. These include the Federal Service for Supervision of Consumer Rights Protection and Human Welfare and its territorial bodies; Federal Biomedical Agency and structural subdivisions of the Ministry of Defense of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation, the Federal Security Service of the Russian Federation, the Federal Security Service of the Russian Federation, the Federal Drug Control Service of the Russian Federation, the Federal Penitentiary Service, the Main Directorate of Special Programs of the President of the Russian Federation and the Administration of the President of the Russian Federation, respectively, in the Armed Forces of the Russian Federation, other troops, military formations and bodies, at defense and defense production facilities, security, internal affairs and other special purposes within their competence.

The Federal Service for Supervision of Consumer Rights Protection and Human Welfare (Rospotrebnadzor), in accordance with paragraph 1 of Decree of the Government of the Russian Federation of June 30, 2004 No. 322 (as amended on July 23, 2015) “On Approval of the Regulations on the Federal Supervision Service in the field of consumer rights protection and human well-being”, is a federal executive body that performs the functions of federal state sanitary and epidemiological supervision and federal state supervision in the field of consumer rights protection.

In order to exercise federal state sanitary and epidemiological supervision, Rospotrebnadzor has the right to suppress violations of the legislation of the Russian Federation in the established field of activity, as well as to apply restrictive, preventive and preventive measures provided for by the legislation of the Russian Federation, aimed at preventing and (or) eliminating the consequences of violations by legal entities and citizens of mandatory requirements in the area of ​​activity.

All of the listed authorities exercise control (supervision) over compliance with the requirements for the safe conduct of work in certain areas of activity.

The federal authority responsible for overseeing compliance with labor laws and other regulatory legal acts containing labor law norms is the Federal Labor Inspectorate (Article 354 of the Labor Code). Along with it, executive authorities of the constituent entities of the Russian Federation have been created and are working, designed to exercise supervision and control in the sphere of labor. These include, in particular, the Department of Labor and Employment of the City of Moscow (hereinafter referred to as the Department), which operates in accordance with the Regulations on the Department of Labor and Employment of the City of Moscow, approved by Decree of the Government of Moscow dated February 8, 2012 No. 33-PP (as amended on July 15, 2015). According to paragraph 4.4 of the above document, the Department exercises supervision and control over the hiring of disabled people within the established quota with the right to conduct inspections, issue mandatory instructions and draw up protocols; registration of persons with disabilities as unemployed; provision of state guarantees in the field of promoting employment of the population, with the exception of state guarantees in the field of employment of the population in terms of social support for unemployed citizens.

The bodies empowered to exercise departmental control over compliance with labor legislation and other regulatory legal acts containing labor law norms in organizations subordinate to them are federal executive authorities, executive authorities of the constituent entities of the Russian Federation and bodies local government. So, in accordance with paragraph 2 of Art. 4 of the Law of the Russian Federation of July 14, 1992 No. 3297-1 "On a closed administrative territorial entity" (as amended on July 13, 2015), local governments of a closed administrative-territorial entity exercise control over the sanitary-epidemiological, radiation and environmental state territories of a closed administrative-territorial entity.

At the same time, in accordance with paragraph 2 of Art. 17.1 of the Federal Law of October 6, 2003 No. 131-FZ (as amended on June 29, 2015) "On the General Principles of Organization of Local Self-Government in the Russian Federation" to relations related to the implementation of municipal control, the organization and conduct of inspections of legal entities, individual entrepreneurs, the provisions of the Federal Law of December 26, 2008 No. 294-FZ (as amended on July 21, 2015) “On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control” apply.

Local self-government bodies are informed about the results of inspections. They have the right to make proposals to the relevant bodies of state and military administration on conducting inspections to observe the special regime and ensure sufficient measures to protect the population of the closed administrative-territorial formation from the effects of radioactive and other materials that pose an increased danger.

Protection of workers' rights by the Federal Labor Inspectorate

It should be noted that among the federal executive authorities vested with the authority to exercise control and supervisory functions in the field of employment, the central place is occupied by the Federal Labor Inspectorate, which is a single centralized system consisting of a federal executive authority, which is the Federal Service for labor and employment (Rostrud), and its territorial bodies (state labor inspectorates).

The activities of the federal labor inspectorate are managed by the head of the federal executive body authorized to conduct federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms - the chief state labor inspector of the Russian Federation, appointed to and dismissed by the Government of the Russian Federation Federation.

The structure of Rostrud provides for two types of territorial bodies: for the settlement of collective labor disputes and for state supervision and control over compliance with labor and labor protection legislation, which has its own subsystem, taking into account established areas of activity. Rostrud carries out its activities in accordance with the Regulations on the Federal Service for Labor and Employment, approved by Decree of the Government of the Russian Federation of June 30, 2004 No. 324 (as amended on April 11, 2015). Rostrud exercises supervision and control in the sphere of labor, employment, alternative civil service, special evaluation working conditions and social protection population and also performs the functions of providing social guarantees established by the legislation of the Russian Federation for socially unprotected categories of citizens.

The Federal Service for Labor and Employment acts directly and through its territorial bodies in cooperation with other federal executive bodies, executive bodies of the constituent entities of the Russian Federation, local governments, public associations and other organizations.

Territorial bodies for state supervision and control consist of two divisions: a legal one, connected with supervision and control over compliance with labor legislation, and a technical one, in charge of labor protection issues.

The main activity of the Federal Service for Labor and Employment is the implementation of state supervision and control over compliance by employers with labor legislation, the established procedure for investigating and recording industrial accidents. Along with this, it exercises state supervision and control in other areas, in particular, over the legal regulation carried out by the state authorities of the constituent entities of the Russian Federation in terms of social payments to citizens recognized as unemployed in the prescribed manner; over the implementation of the rights of employees to receive security for compulsory social insurance against industrial accidents and occupational diseases, the appointment, calculation and payment of benefits for temporary disability at the expense of employers. In addition, it registers in a notification manner sectoral (intersectoral) agreements concluded at the federal level of social partnership, interregional agreements; collective labor disputes arising from agreements concluded at the federal level of social partnership, collective labor disputes in organizations financed from the federal budget, as well as collective labor disputes arising in cases where, in accordance with the legislation of the Russian Federation, in order to resolve a collective labor dispute, a strike cannot be carried out.

Rostrud Order No. 140 dated June 26, 2013 approved the List of officials of the Federal Service for Labor and Employment authorized to draw up protocols on administrative offenses in the exercise of supervision and control functions in the field of employment. The list of officials of the Federal Service for Labor and Employment and its territorial bodies for state supervision and control over compliance with labor legislation (state labor inspectorates in the constituent entities of the Russian Federation) authorized to draw up protocols on administrative offenses was approved by order of Rostrud on April 10, 2006 No. 60.

Decisions made by state labor inspectors may be appealed against by the relevant supervisor by subordination, the chief state labor inspector of the Russian Federation and (or) in court. Decisions of the chief state labor inspector of the Russian Federation can only be appealed in court (Article 361 of the Labor Code).

The procedure for conducting inspections by officials of the federal labor inspectorate is determined by regulatory legal acts of various legal force. Among them, international legal acts should be singled out, for example, the ratified ILO Convention No. 81 “On Labor Inspection in Industry and Trade” (1947) and its Protocol of 1995215, in accordance with which Russia assumed the obligation to create state labor inspectorates that ensure compliance with labor legislation and labor protection at all production facilities. Among the normative legal acts adopted at the Federal level, first of all, it should be noted the Labor Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation, which contains norms regulating the procedure for initiating and considering cases of an administrative offense in the sphere of labor. Along with them, a huge role is played by federal laws of December 26, 2008 No. 294-FZ (as amended on July 21, 2015) “On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control” and from December 28, 2013 No. 426-FZ (as amended on July 13, 2015) "On a special assessment of working conditions." Along with this, when carrying out measures to exercise control (supervision), the state labor inspectorate, its officials are required to be guided by a number of by-laws, among which one can, for example, name the Administrative Regulations for the Federal Service for Labor and Employment of the state function of exercising federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms, approved by order of the Ministry of Labor of Russia dated October 30, 2012 No. 354n. This document provides for a general procedure for planning supervisory and control measures, organizing and conducting scheduled and unscheduled inspections of compliance by employers with mandatory requirements, as well as the procedure and forms of control over the performance of a state function.

Of considerable importance in the activities of the state labor inspectorate are the recommendations developed by Rostrud. For example, Guidelines on the application by officials of Rostrud and its territorial bodies of the provisions of the Federal Law of December 26, 2008 No. 294-FZ “On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control”216 contain quite serious areas of activity of the state inspection labor, as well as certain methods of conducting inspections.

In connection with the introduction of the law "On the special assessment of working conditions", approved by the order of Rostrud dated June 2, 2014 No. 199 Recommendations on organizing and conducting inspections of compliance with the requirements of the Federal Law dated December 28, 2013 No. 426-FZ "On the special assessment of working conditions Labor” by organizations authorized to conduct a special assessment of working conditions, which determine the basic requirements for conducting field and documentary inspections, taking into account the provisions provided for by the Methodology for conducting a special assessment of working conditions, approved by order of the Ministry of Labor of Russia dated January 24, 2014 No. 33n (as amended by January 20, 2015).

Inspections conducted by the state labor inspectorate for the purpose of state supervision are of two types: scheduled and unscheduled.

Scheduled inspections are carried out in accordance with the annual plan approved by state control (supervision) bodies, municipal control bodies in accordance with their powers. Annual plans are developed, approved and posted on the Internet in compliance with the Rules for the preparation by state control (supervision) bodies and municipal control bodies of annual plans for scheduled inspections of legal entities and individual entrepreneurs, approved by Decree of the Government of the Russian Federation of June 30, 2010 No. 489 (ed. December 27, 2012).

The basis for conducting a scheduled inspection in accordance with paragraph 2 of the Procedure for the formation by the prosecution authorities of an annual consolidated plan for conducting scheduled inspections of legal entities and individual entrepreneurs is the expiration of three years from the date state registration legal entity, individual entrepreneur; completion of the last scheduled inspection of a legal entity, individual entrepreneur; the commencement of entrepreneurial activities by a legal entity, individual entrepreneur in accordance with the notification of the commencement of certain types of entrepreneurial activities in cases established by law.

The basis for an unscheduled inspection is the expiration of the employer's execution of the issued order to eliminate the identified violation or the receipt by the federal labor inspectorate of an appeal, statements of citizens, information from state authorities exercising state control (supervision), trade unions, from the media about the facts of violations by employers labor law requirements.

The employee's appeal or statement about the violation by the employer of his labor rights, as well as the employee's request to check the conditions and labor protection at his workplace in accordance with Art. 219 of the Labor Code also serve as the basis for an unscheduled inspection. An independent basis for conducting an unscheduled inspection may be an order (decree) of the head (deputy head) of the federal labor inspectorate to conduct an unscheduled inspection. Such an order may be issued in accordance with the order of the President of the Russian Federation, the Government of the Russian Federation or on the basis of the prosecutor's request. By general rule the inspection is carried out in agreement with the prosecutor's office and with prior notification of the person in respect of whom the inspection is being carried out.

The exception is cases of conducting an unscheduled on-site inspection based on an employee’s appeal or statement about a violation by the employer of his labor rights, as well as in case of receipt of information about the facts of violation by employers of the requirements of labor legislation, including labor protection requirements, which resulted in a threat of harm to the life and health of employees . In these cases, prior notification of the employer about the unscheduled, specified is not allowed. In this case, coordination with the prosecutor's office is not required. In this case, they are subject to notification in the prescribed manner.

The criterion for assessing the legitimacy of the behavior of an employee exercising self-defense can be the presence of three conditions simultaneously, such as:

• commission by the employer of illegal behavior;
• the possibility of refusing to perform work in the event that the employer commits unlawful behavior;
• compliance with the procedure for self-defense.

One of the most difficult moments for an employee to apply self-defense is the assessment of the behavior of the employer, since the refusal to perform work can only be used in case of unlawful behavior of the employer. Explaining the legitimacy of an employee's refusal to work, the Supreme Court of the Russian Federation notes that in some cases such behavior can be recognized as illegal, for example, refusal to perform work when he is transferred to another job in compliance with the law. In this case, the refusal is recognized as a violation of labor discipline, and absence from work - absenteeism.

In addition, not always the offense committed by the employer can serve as an independent basis for the employee to use self-defense. The very fact of violation by the employer of the requirements of labor legislation (local regulations, terms of the collective agreement, labor contract) does not allow the employee to apply self-defense. He has the right to refuse to work only in cases provided for by the Labor Code and other federal laws. For example, an employee who at one time was involved in work on a day off is not entitled to arbitrarily use additional rest time (time off). Similarly, the unauthorized departure of an employee on vacation (basic, additional), including in conditions of violation by the employer of labor law norms (for example, the absence of a vacation schedule in the organization), according to Supreme Court RF, is absenteeism (equates to cases of absence from the workplace without good reason).

Thus, in the situations under consideration, it is unacceptable to refuse to perform work, since the cases of self-defense are not defined by law.

In accordance with Art. 379 of the Labor Code, an employee has the right to refuse to perform work in two cases:

1. when such work is not provided for by the employment contract;
2. if it directly threatens his life and health.

Exceptions to this rule may be provided for by the Labor Code and other federal laws.

In the first case, self-defense can take place when the employer requires the employee to perform work that is not provided for either by the employment contract or the job description, with which the employee is familiarized in the prescribed manner (if labor function the employee is provided for by the employment contract in the form of a reference to job description). The problem of applying self-defence in the situation under consideration boils down to two points. Firstly, in the absence of a legal definition of the concept of “labor function”, there has been a contradictory practice of applying labor legislation by the judicial authorities. They define it differently. This does not allow employees to resort to the use of this method of protection without being fully confident in the same assessment of the situation by the courts of general jurisdiction. Secondly, employees do not always take into account cases of exceptions to the rules, when the employer has the right to entrust the employee with the performance of work not stipulated by the employment contract, when refusal to perform work is unacceptable and constitutes a disciplinary offense (an offense already committed by the employee). For example, the assignment by the employer to the employee of work not stipulated by the employment contract in connection with his temporary transfer to another job (when such a transfer is allowed without the consent of the employee) is lawful. At the same time, the employee's refusal to perform it is permissible and is lawful if such work is contraindicated for him for health reasons.

Similarly, the transfer of an employee who has the right to use self-defense is unacceptable, when the employee, for example, was transferred to work with harmful and (or) dangerous working conditions, which is not provided for by his employment contract. Refusal of an employee from a temporary transfer in accordance with Art. 72.2 of the Labor Code for the reasons indicated is legal and reasonable.

In the second case (the work directly threatens life or health), self-defense can take place when the employee is guaranteed the provision of work in safe working conditions that are not related to the implementation of special types of activities associated with professional risks, or work is contraindicated for him for health reasons. So, according to part 1 of Art. 219 of the Labor Code, the employee acts lawfully, refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements until such danger is eliminated. By virtue of Part 7 of Art. 220 of the Labor Code, the behavior of an employee who refuses to perform heavy work and work with harmful and (or) dangerous working conditions not provided for by the employment contract is legal.

On the contrary, it is impossible to recognize as lawful the refusal of an employee to perform work that directly threatens his life and health, if labor contract concluded regarding work, the performance of which is directly related to the danger to life and health. For example, by virtue of paragraph 2 of Art. 9 of the Federal Law of July 21, 1997 No. 116-FZ (as amended on July 13, 2015) “On Industrial Safety of Hazardous Production Facilities”, employees of a hazardous production facility are required to participate in the prescribed manner in carrying out work to localize an accident at a hazardous production facility . In this situation, there is an exception to the rule provided for by law. The employee is accepted for work, the performance of which is directly related to a threat to life, his duty is to perform work related to a threat to life and health. In this regard, he is not entitled to use such a method of protection as self-defense.

The provision of art. 379 of the Labor Code provide for a notification procedure for self-defense. The employee is obliged to notify the employer, his immediate supervisor or another representative of the employer in writing of the intention to apply self-defense in connection with the violation of his right. Failure to comply with the order (form) of protection serves as a basis for recognizing the employee's behavior as unlawful.

Summing up a certain result, it can be argued that the method of self-defense is a legitimate refusal of an employee to perform work in the manner prescribed by law in cases provided for by law.

The Labor Code contains many norms that give the employee the right to refuse to perform work. However, not every case possible failure from performing work can be attributed to a method of protecting a violated right (self-defense).

So, according to Part 2 of Art. 259 of the Labor Code, women with children under the age of three can be sent on business trips, involved in overtime work, work at night, weekends and non-working holidays only with their written consent, if such work is not contraindicated for them for health reasons . Within the meaning of this norm, these employees have the right to refuse to perform work, about which they must be informed in writing by the employer. Such a refusal is not a disciplinary offense, and therefore these employees cannot be held disciplinary liable.

Refusal to work at night is also lawful in the case when only part of the night time was spent on its implementation. Despite the legitimacy of the behavior expressed in the refusal to perform work, it is not a way to protect the right. This is a guarantee of the worker's right to work under the conditions established by law. This provision guarantees the rights certain categories employees when sent on business trips, involved in overtime work, work at night, weekends and non-working holidays.

In the educational literature there is an opinion according to which one of the forms of self-defense is considered as provided for in Part 2 of Art. 142 of the Labor Code, the right of the employee to suspend work for the entire period until the payment of the delayed amount, provided that the delay in payment of wages has exceeded 15 days. The same way

The Constitutional Court of the Russian Federation considers the suspension of work in this case by suspending work for the entire period until the payment of the delayed amount by self-defense of this right.

This method also represents the inactivity of the worker. The Labor Code provides for the procedure (form) for the implementation of self-defense. Thus, the law provides that in the situation under consideration, the employee is obliged to notify his intention to suspend work in writing. The exception is the cases provided for in Art. 142 of the Labor Code, when the suspension of work is not allowed. However, unlike the refusal to perform work in cases prescribed by law (without limitation by any period), the period of suspension of work is limited to the period of non-payment of wages by the employer. In addition, self-defence by an employee is ensured by the retention of all rights provided for by labor legislation and other acts containing labor law norms. At the same time, the suspension of work does not guarantee the employee the preservation of wages for the entire period (up to the payment of wages), however, he retains his place of work.

Moreover, the suspension of work by an employee does not entail the unconditional restoration of his violated right to wages, does not ensure the suppression of the offense. In this regard, it is hardly possible to recognize this behavior as self-defense, which is understood as the independent behavior of an employee aimed at ensuring the realization of his right to protect the subjective right to pay. In this case, the recognition of such behavior as a method of protection, which is understood as the forced realization of the right to protection in case of violation of his subjective right, seems unconvincing.

It should be noted that the rule providing for the right to suspend work in these cases is called "the employer's liability for violation of the terms of payment of wages and other amounts due to the employee." Consequently, the legislator does not recognize the suspension of work as a kind of self-defense. Legal liability refers to the occurrence of negative consequences for a person guilty of violating rights, freedoms and legitimate interests. Therefore, the behavior of the employee should provide the employer with negative consequences.

However, the law does not provide for the retention of wages for the employee for the entire period of suspension of work.

Thesis

Protection of labor rights and legitimate interests of employees by trade unions

Introduction

The highest value of the state is a person, his rights and freedoms. Recognition, observance and protection of the rights and freedoms of man and citizen is the duty of the state. These fixed Art. 2 of the Constitution of Russia, the provisions underlie Section XIII of the Labor Code of the Russian Federation.

Protection of the labor rights of employees is the enforcement of labor rights, the restoration of illegally violated rights and the establishment by labor legislation and the actions of the relevant bodies of real effective responsibility of employers and their representatives (administration) for violation of labor legislation, its failure to comply, i.e. for violation of the labor rights of employees . In this narrow sense, protection is governed by Section XIII of the Labor Code.

Protection of the labor rights of citizens of the Russian Federation is one of the main functions of the Russian state.

The independence of trade unions is extremely important for the socio-economic development of a democratic society, the development of social and labor relations and the deepening of social partnership processes.

The relevance of the chosen topic is due to the fact that the protection of the labor rights of workers is due to changes in the socio-economic structure of the country and the related reform of labor legislation. With the transition to market relations, the number of violations of workers' labor rights has increased. At the same time, the construction of a legal social state is impossible without improving the legal guarantees for the exercise of the labor rights of workers and the forms of their protection.

The practical significance of the study lies in the fact that the results of the study, theoretical conclusions can be used in the process of current rule-making; in the process of law enforcement practice of trade union bodies.

The objectives of the study are: consideration of the functions of trade unions, their legal status in the labor sphere from the point of view of protecting the labor rights of workers; legal analysis of the activities of trade unions in this area, as well as legislation from the point of view of the need to improve it in order to strengthen the protection of labor rights of workers by trade unions.

Research of forms of protection by trade unions of the social and economic rights of workers;

Consideration of forms of implementation of the protective function of trade unions;

Analysis, definition of the most common labor offenses, development of a legal mechanism for their elimination, prevention;

Development of proposals for improving the current legislation to strengthen the protection of labor rights of workers by trade unions.

The subject of the research is the legal regulation of the activities of trade unions to protect the labor rights of workers.

To formulate scientific concepts and proposals for improving the current legislation, the techno-legal method was used. The functional method was used to the greatest extent, which allows one to better understand the concept of trade unions, to consider their historical purpose and role in the life of society, to reveal the content of their activities to protect the labor rights of workers.

The normative legal basis of this study is the Constitution of the Russian Federation, conventions and recommendations of the International Labor Organization, Russian legislation, legislation of the constituent entities of the Russian Federation, by-laws.

The structure of the work consists of an introduction, three chapters, eight paragraphs, a conclusion and a list of references.

1. Legal problems of protection by trade unions of labor rights and legitimate interests of workers

1 The concept and definition of protection of labor rights of workers

The state is a power-political organization that has sovereignty, a special apparatus of control and coercion, and establishes a legal order in a certain territory.

Human rights and freedoms are the highest value of any state. Since the basis of the duties of the state is the recognition of a person, the observance and protection of his rights and freedoms. These foundations are enshrined in the Constitution of Russia and the Labor Code.

The International Labor Organization is a specialized agency of the United Nations, an international organization dealing with the regulation of labor relations. For 2012, 185 states are members of the ILO. Since 1920, the headquarters of the Organization, the International Labor Office, has been located in Geneva. The office of the Subregional Office for Eastern Europe and Central Asia is located in Moscow.

In an international treaty (ILO), they believe that the most vulnerable link in labor relations is the employee. And it is they who need protection from the employer.

The basis for protecting the rights of workers is the protection of labor rights, prevention in teams. The authorities concerned should, by means of established legislation, most effectively hold employers and their representatives accountable.

Under the protection of the rights of workers understand the implementation of the function of protection by the state. In combination with the work of protecting human rights, it combines the most important ways to protect these rights:

.Establishment in the Labor Code and other labor laws of rules that allow achieving a high level of working conditions in the state. Also guarantees of observance and adjustment of labor rights, which can be supplemented to enhance development. They are used both in regional and local labor legislation with the help of collective agreements, agreements and labor contracts.

The development of industrial democracy, with the help of both direct and representative, where representatives are the workers themselves, who establish and determine the rules of internal labor regulations, conclude collective agreements with organizations. This avoids the decision of the employer alone.

It is necessary to use the propaganda of labor legislation, by all available means among workers. It is also necessary to provide training for employers and their representatives in order to prevent labor offenses in the team and train the team in the cultural foundations of the struggle for their labor rights.

The labor rights of workers are protected by jurisdictional bodies. Their areas of work include both labor disputes and work with the courts. In the Labor Code of laws on workers' rights, it is worth highlighting the fundamental section number eighteen. Its name is “Protection of labor rights of workers. Resolution of labor disputes. Responsibility for violation of labor legislation.

In Art. 352 of the Labor Code indicates three main ways to protect the labor rights of workers and their legitimate interests:

State control and supervision over compliance with labor legislation.

Protection of the labor rights of workers with the help of labor trade unions.

Self-defense by employees of labor rights.

The most important forms of labor communication always begin at the initiative of the workers, but in Art. 379 of the Labor Code, the legislation did not include individual and collective labor disputes among these rights. Such types of disputes are considered by jurisdictional bodies, as they relate to forms of self-defense of labor rights for employees. Jurisdictional bodies are themselves a separate institution.

Here it is also appropriate to mention the state supervision and control of labor legislation and the protection of labor rights of workers by trade unions. These two institutions regulate two types of labor relations.

Relations on supervision and control of labor legislation and labor protection

Relations on the implementation of the protective function of trade unions, their rights in the sphere of labor

The work of the judiciary in resolving labor disputes is also directly related to labor relations. Performing the function of an institution of labor disputes. The basis for the emergence of such labor disputes is the actions of the worker, who expressed his will to consider the dispute, which accordingly leads to the work of legal bodies.

There are also individual approaches to working with the protection of labor rights. The use of many years of practice with work on the creation of the very act of labor law in a centralized or local manner. In Art. 379 of the Labor Code uses new approaches to protecting the rights of workers: an employee may refuse to perform work not provided for by an employment contract, as well as work that directly threatens his life and health (except as provided by federal laws), while retaining all labor rights in such a refusal. This law is repeated in Art. 219 and 220 of the Labor Code, in accordance with Article 37 of the Constitution of the Russian Federation. Where to talk about safe for life and health conditions for life. But in paragraph 2 of Art. 45 of the Constitution of the Russian Federation, a law that says that: "Everyone has the right to protect their rights and freedoms by all means not prohibited by law" is an error, this law does not cover all forms of self-defense of the rights of workers in Art. 379 TK. The Constitution of the Russian Federation is a law of direct action and in these situations guaranteeing state protection of labor rights and freedoms of workers. Whatever the situation occurs, and whatever legal method of self-defense of their labor rights the workers choose, it will be lawful both for individual and collective labor rights and labor interests.

The protection of labor rights is the various actions of state and trade union bodies to prevent labor offenses, and if any are detected, these bodies provide assistance to workers in eliminating such offenses (individual or collective), restoring violated labor rights and bringing violators to justice. In this situation, the provisions enshrined in Art. 142 of the Labor Code: refusal to work in case of a delay of more than 15 days in the payment of accrued wages, various protest actions of workers, etc.

The thirteenth section of the Trunk Code is called "Protection of labor rights ...". The process to protect this law has its stages, namely:

a) prevention of labor offenses;

b) consideration of a labor offense in resolving labor disputes;

c) restoration of violated labor rights;

d) liability for labor offenses.

When working at the first stages of creating new legal acts, one must initially take into account that it is necessary to protect the labor rights of workers, and it is imperative to ensure that the already established foundations are not destroyed in their rights. In the regulation of labor rights, all stages and ways of protecting these rights are taken into account. The main instrument of this regulation is the system of legal means. Thanks to this system, the ordering of labor and other relations directly related to them in the sphere of labor is carried out in accordance with the goals and objectives of the legal social state.

The main structural elements of the legal regulation mechanism are:

a) the rules of law that establish rules of conduct;

b) legal relations as an element real life the rights;

c) acts of realization of legal rights and obligations, i.e. the actual behavior of the subjects of legal relations.

In this element of the mechanism of legal regulation of labor, the employer may violate his labor duties, and, consequently, the rights of employees.

The protection of the labor rights of workers also applies to the protection of the rule of law at work, and to the restoration of the violated law. In turn, legality in the sphere of labor is the strict and complete implementation of the provisions of labor legislation by all subjects of labor law.

Given that there will be stability in the labor order, where all elements of the settlement will take part legal labor, and where labor rights and obligations of subjects of labor and directly related legal relations are effectively implemented. Only then is it possible, in the event of a labor offense, to quickly and completely protect and restore all labor rights of employees.

Only with the lawful behavior of all subjects of labor law, it is possible to implement the labor law and order. Since it includes the basics of labor law, which is protected and protected by the state. The state acts as the guarantor of the basic protection of the labor rights of workers, and represents the legal side in the sphere of labor and labor law and order.

The main indicator of the state of public life in the social sphere in a state of law is a clear and specific level of labor law and order and legality in the sphere of labor in each organization. If the state wants to achieve effective legal regulation of labor between the subjects of labor law, it must strive for a high level of labor law and order and the legality of labor in each production.

The employer and his representatives do not have the legal right to prevent workers from exercising all forms of self-defense of their labor rights, where the protection of workers' rights is taken into account not only by Article 379 of the Labor Code, but also by the Constitution. Also, the employer has no rights under Art. 380 of the Labor Code, persecution of workers for using legally acceptable methods of self-defense of their labor rights. If the employer violates this article, he will be held liable as a violation of labor legislation, the Code of Administrative Offenses, as well as the Criminal Code. In case of violation of labor legislation and labor protection, disciplinary liability (dogans), administrative liability (fine), material liability (confiscation of property), criminal liability (litigation) are applied to administration officials or employers. The heads of production, its divisions and their deputies guilty of this may, at the request of the trade union body, be punished up to and including dismissal, removed from their positions. Employees for violating labor protection instructions are subject to disciplinary and, in appropriate cases, material and criminal liability.

1.2 Labor rights of workers and the form of their protection

According to Art. 2 of the Constitution of the Russian Federation, the recognition, observance and protection of the rights and freedoms of man and citizen is the duty of the state. The protection of a right is usually understood as the removal of obstacles in its implementation or the restoration of a violated right and compensation for the damage caused by this violation. The concept of protection of subjective labor rights also includes the activities of authorized state bodies and trade unions to prevent and suppress violations of labor rights.

In accordance with the amendments introduced by the Federal Law “On Amendments to the Labor Code of the Russian Federation, Recognition of Certain Normative Legal Acts of the USSR as Invalid on the Territory of the Russian Federation and Invalidated Certain Legislative Acts of the Russian Federation” dated 30.06.2006 No. 90-FZ Art. 352 of the Labor Code of the Russian Federation establishes the following ways to protect labor rights:

self-protection by employees of labor rights;

protection of labor rights and legitimate interests of workers by trade unions;

state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms;

judicial protection.

The role of the public in protecting the legitimate interests of a person, the Constitution of the Russian Federation indicated that everyone has the right to create trade unions. Unfortunately, it can be stated that trade union organizations are usually not created at enterprises of medium and small businesses, commissions on labor disputes are not elected, i.e. there are no bodies that should protect the interests of workers. This happens for various reasons: the negative attitude of some employers towards the activities of trade unions, since the latter limit their omnipotence; persecution of workers who turned to the trade union to protect the violated right; poor knowledge of labor legislation by employees, and in connection with this, the unwillingness to protect violated rights with the help of a trade union committee or in a commission on labor disputes. In conditions of unemployment, in order to maintain his job, an employee is sometimes forced to sacrifice his legal rights.

Chapter 58 of the Labor Code of the Russian Federation is devoted to the protection of the labor rights of workers by trade unions. Article 2 of the Federal Law "On Trade Unions, Their Rights and Guarantees of Activity" determines that a trade union is created to represent and protect the social and labor rights and interests of its members. The main function of trade unions is the protection function, which is implemented in four organizational and legal forms:

participation of trade unions in relations of social partnership;

participation in the application of established working conditions in the organization;

participation in the resolution of labor disputes;

The participation of trade unions in social partnership relations, the establishment of working conditions in an organization through the institution of a collective agreement and other labor agreements should become the main, main form of implementing the protective function of trade unions.

There is an opinion in the literature that after the formation of the state labor inspectorate, the legalization of trade union inspections (legal and technical) is not justified, because. they have no power. It should be noted that the interests of the inspectorates coincide, and in the case of mass inspections of the state labor inspectorate, the assistance of labor inspectorates of trade unions is necessary. Current legislation indicates the need for their joint action.

Article 370 of the Labor Code of the Russian Federation discloses the right of trade unions to exercise control over compliance with labor legislation and other normative legal acts containing labor law norms. Trade union labor inspectors have the right to freely visit organizations, regardless of their organizational and legal forms and forms of ownership, in which members of this trade union or trade unions belonging to the association work, to conduct inspections of compliance with labor legislation, legislation on trade unions, as well as compliance with the terms of the collective agreement , agreements. Trade union labor inspectors, authorized (trusted) persons for labor protection of trade unions have the right:

present employers with demands to suspend work in cases of a direct threat to the life and health of employees;

send employers binding orders to eliminate identified violations;

take part in the consideration of labor disputes;

take part in the development of laws and other regulatory legal acts containing labor law norms;

apply to the relevant authorities with a demand to bring to justice those guilty of violating laws and other acts containing labor law norms, concealing the facts of accidents at work.

Trade unions, their inspections, in the exercise of these powers, interact with state bodies of supervision and control.

Articles 371 and 372 of the Labor Code of the Russian Federation provide for the procedure for taking into account the opinion of the trade union body when the employer adopts local regulations containing labor law norms. The Code provides for the following cases of decision-making by the employer, taking into account the opinion of the representative body of the employees of the organization:

the introduction and abolition of part-time work for up to six months in order to preserve jobs in the event that changes in organizational or technological working conditions may lead to mass layoffs of workers;

dismissal of workers who are members of the trade union, at the initiative of the employer;

involvement of employees in overtime work in certain cases;

drawing up shift schedules for shift work;

attraction to work on weekends and non-working holidays in certain cases;

approval of the vacation schedule;

establishment of a system of incentive payments;

establishing the amount of increased wages for night work;

introduction, replacement and revision of labor standards;

approval of the internal labor regulations;

approval of the schedule of work on a shift when working on a rotational basis.

Before making a decision, the employer sends a draft local normative act to an elected trade union body representing the interests of all or the majority of employees of this organization. The elected trade union body, no later than five working days from the date of receipt of the draft local act, sends a reasoned opinion to the employer in writing. The employer may agree with him or is obliged to conduct additional consultations with the trade union body within three days in order to reach a mutually acceptable solution. The employer can adopt a local normative act and, if no agreement is reached, then the elected trade union body has the right to start the procedure of a collective labor dispute, and the adopted act can be appealed to the relevant state labor inspectorate or to the court. The State Labor Inspectorate is obliged, within one month from the date of receipt of the complaint (application) of the trade union body, to conduct an inspection and, if a violation is found, issue the employer with a binding order to cancel this local normative act.

The Labor Code of the Russian Federation significantly limited the employer in making an illegal decision to dismiss an employee, and granted the trade union committee the right to protect and reinstate an illegally dismissed employee through the state labor inspectorate in a shorter period of time. In accordance with Art. 82 of the Labor Code of the Russian Federation, the dismissal of workers who are members of a trade union, under paragraph 2, sub. "b" paragraph 3 and paragraph 5 of Art. 81 of the Labor Code is made taking into account the reasoned opinion of the elected trade union body of this organization.

The procedure for taking into account the opinion of the trade union body when terminating an employment contract at the initiative of the employer is established by Art. 373 of the Labor Code of the Russian Federation. The employer sends a draft order to the trade union body, as well as copies of the documents that serve as the basis for making the said decision. Within seven working days from the date of receipt of the draft order, the trade union body considers this issue and sends the employer its reasoned opinion in writing.

If the trade union body expressed disagreement, then it conducts additional consultations with the employer within three working days. If there is no general agreement on the results of consultations, the employer, after ten working days, has the right to make a final decision, which can be appealed to the state labor inspectorate. The State Labor Inspectorate, within ten days from the date of receipt of the complaint (application), considers the issue of dismissal and, if it is recognized as illegal, issues an obligatory order to the employer to reinstate the employee at work with payment for forced absenteeism.

3 Concept, tasks and functions of trade unions

Trade unions are a historically established organizational form of association of workers. Trade unions, being a social phenomenon, are a diverse and complex system of relations and connections of an external and internal nature. Trade unions are the most significant mass public organization.

Trade unions in the political system of society are specific public organizations that have their own clearly defined functions, determined by their charters.

The main tasks of trade unions are aimed at the implementation of their most important functions - representing the interests and protection of the rights of workers in the field of work, as well as labor-related relations. It was in connection with this that the first trade unions were formed at one time and workers united in them, which remains relevant today.

A trade union or a trade union is a voluntary public association of citizens who are connected by common production and professional interests by the nature of their activities, which in turn are created to represent and protect the social and labor rights and interests of workers.

Trade unions, being a public organization, are based on membership, are created to protect common interests and achieve statutory goals, based on joint activities.

Every worker has the right to join or create a trade union, which is enshrined in Article 30 of the Constitution of the Russian Federation. This mention testifies to the importance of trade unions for public life and their special role.

Today, workers are in dire need of protection of their rights and interests in connection with the strengthening of socio-economic contradictions.

social regulation public relations enables trade unions to carry out their protective function. Relations with the participation of trade unions are usually regulated by different types of social norms- law, morality, ethics, traditions and others. These relationships can be divided into three groups:

relations that have developed in the process of interaction between trade unions and state, economic bodies and workers, which are not formally fixed;

relations that are provided for by acts of trade union bodies;

relations, the content of which is reflected in regulatory legal acts.

The activities of trade unions can be regulated by them independently on the basis of intra-trade union norms, which are accepted and approved by the leaders of trade unions. These norms are not of a legal nature and are reflected in the charters of trade unions and other acts, but almost all of them have legal consequences. In connection with the changes that are being made in civil legislation, it is necessary to include provisions in trade union charters that will regulate property relations between the trade unions themselves, their associations and member organizations. These norms must be recognized as legal, regardless of the fact that they are adopted by public organizations, while relying on the law and pursuing the goal of fulfilling it. In connection with this circumstance, we can conclude that modern trade union charters contain both legal and non-legal norms.

Legal influence is necessary only for those social relations that trade unions enter into, the regulation of which is objective and necessary from a political, economic and social point of view. Legal regulation enables trade unions to carry out their tasks and perform their functions.

Law regulates social relations, which trade unions enter into only to a certain extent, which is sufficient to protect the interests of workers and their representation, as well as for the successful functioning of trade unions and the development of society. The boundaries of legal regulation directly depend on social relations, the degree of their development, as well as on the political, economic and social conditions in which they develop.

The limits of legal regulation, in turn, directly depend on the purpose of trade unions, as well as on the need to represent the interests and protect the rights of workers in the labor sphere with the most maximum benefit. For this, all possible means and methods that are inherent in trade unions, the law, as well as the interaction of legal and non-legal methods and means are used.

The content of rights and their scope is determined by the purpose of creating trade unions, their tasks, functions and position in the political system. It is in connection with this that the legal status of trade unions in the sphere of labor is determined by the state with their direct participation. They are aimed at helping in the formation of legislative norms that are relevant to the activities of trade unions. It is also worth noting that the legal status is also directly related to their statutory powers, which are determined by themselves.

When creating legislation on trade unions, the content and scope of their statutory or public powers are taken into account. The state has the right to assign to trade unions only those powers that are regulated by their charters, provided that the strength of their social relations is taken into account. After the adoption of legislation on trade unions, they must adhere to this legislation in the course of their activities.

Based on the above, we can conclude that the relationship between the legal and social status of trade unions is based on the principle of direct and feedback, as well as on interdependence in the preparation of legislation on trade unions with the priority of social norms and the priority of legal norms after the adoption of the relevant legislative act.

The rights of trade unions form a legal basis that contributes to the most complete implementation of their statutory functions and tasks, as well as strengthening the legal basis of public and state life as a whole.

However, at the same time, the state does not interfere in the internal activities of trade unions due to the fact that they are guided by the charters adopted by them and are not subject to mandatory registration with state bodies, since they are public organizations. In the event that trade unions need to obtain the rights of legal entities, they must be registered with the bodies of the Ministry of Justice of the Russian Federation, after which they will be included in the appropriate register. However, it is worth noting the fact that registration has a notification procedure, and not a mandatory one. It is the notification procedure that ensures the complete independence of the trade unions from the executive authorities.

Also, trade unions are independent from local governments, employers and their associations into associations and unions, political parties and other public associations. They are not controlled or accountable to them.

Independence is a fundamental principle of activity of all trade unions without exception and can also be ensured by:

a direct prohibition of any interference in their activities by public authorities and their officials, which may subsequently lead to restrictions on the rights of trade unions or interfere with the implementation of their statutory activities, which are regulated by law;

autonomy in matters of property;

the right to independently develop and approve the charters of trade unions, determine their structure, select a leader and organize their activities;

prohibition to control the activity of trade unions by the bodies of justice, which carry out the registration of trade unions as legal entities.

The second important principle of trade unions is self-government, which is provided for by the Federal Law "On public associations". This law in relation to trade unions is expressed in the right of trade unions to independently develop and approve their charters, as well as regulate their internal activities.

The third principle is voluntary association in trade unions, which is enshrined in the legislation on trade unions and the Federal Law "On Public Associations".

The fourth principle is the equality of trade unions, which is also fixed at the legislative level and is expressed in the absolute equality of all trade unions before the law. This principle is expressed in the fact that all trade unions and their bodies, located at the same level, have the same rights, regardless of their number or any other characteristics. It is in connection with this that the legislation reflects trade union pluralism - the presence of not one, but several different trade unions.

The fifth principle is the legitimacy of the creation of trade unions and their activities, which is enshrined in the legislation on trade unions.

For all trade unions without exception, the general regulatory legal act is the Federal Law "On Trade Unions", which acts as a special act in relation to the Federal Law "On Public Associations". In this situation, specialization is carried out on the basis of the subject - a special public organization. The norms on the rights of trade unions are also enshrined in many other acts, a significant part of which specializes in the subject of regulation, for example, the norms on the rights of trade unions in the development and conclusion of collective agreements and agreements.

It is also worth noting that some subjects of the Russian Federation adopt their own laws on trade unions, for example, the Republic of Tatarstan, Sakha (Yakutia), Bashkortostan, Saratov region and others.

The basis of the activities of all trade unions includes legislation on trade unions, their rights and guarantees of their activities, as well as all labor legislation in connection with the fact that it is used by trade unions in protecting the interests and rights of workers.

The legal basis for the activities of trade unions, taking into account the circumstances in the country, is constantly subject to legislative changes and is being improved due to the development of social relations in which trade unions participate. However, the main changes are due to changes in economic relations and changes in the socio-political situation in the country. In this regard, it becomes necessary to review the rights of trade unions. The state and its bodies get back the powers that were previously vested in the trade unions, for example, the state-authority powers of the legal and technical instances of the trade unions. There is also a process of expanding and strengthening rights that are aimed at protecting the interests of workers, for example, employment issues. The International Labor Organization, with its Conventions No. 87, 98, 135, 144 and others, had a decisive influence on the content of trade union legislation.

In connection with the foregoing, it should be noted that the main trends in the improvement and development of legislation on trade unions, their rights and guarantees are:

in that they are carried out only in accordance with existing social relations;

in the refusal of trade unions of powers that are not peculiar to them;

in the preservation, expansion and strengthening of the rights that enable trade unions to defend the interests and social and labor rights of workers.

employer trade union contract control

2. Implementation of protective functions by trade unions in cooperation with representatives and executors of authorities, employers

1 Development and general characteristics of social partnership

Social partnership is a phrase, capacious in nature, which is sometimes taken to be replaced by a shorter one - “tripartism”. It means tripartiteness, which corresponds to the international legal regulation of labor and determines the nature of the relationship between employees, employers and state bodies represented by the Government of the Russian Federation or the executive branch of the subject of the Russian Federation.

The term "social partnership" came into use after the end of the First World War. The theory of social reform was born in defiance of the theory of class struggle, which in the 19th century wanted to play the role of the most important regulator of the process of history. Adherents of this concept took Feuerbach's ethics popular at that time, the concept of "harmonization of relations" by L. Blanc and P. Proudhon, the ideas of F. Lassalle and other theorists of social democratic development paths as a basis. Employers of the last century, both in Russia and in the West, in order to prevent strikes and reduce profits because of this, went to an agreement with their workers, and also rewarded especially diligent certain privileges. It was these circumstances that led to the emergence of the "labor aristocracy".

The main reason for the decline in radicalism was the qualitative change that took place among the workers themselves. Skirmishes and strikes that arise between employers and employees ceased to exist and developed into negotiation processes due to the increase in the level of education and the growth of professionalism, the emergence of the opportunity for workers to participate in the profits of the enterprise, as well as due to wage increases and the development of social protection.

Social partnership has changed with the course of history, developed both in theory and in practice. After the victory of the October Revolution, the whole world was forced to recognize the tactics and strategy of relations between labor and capital that were new to them. In order to resolve the contradictions that arose during the transition, it was necessary to create specialized organizations and trade unions. It was this need that led to the creation in 1919 of the International Labor Organization, which was an external factor. However, the main factor in social partnership is still internal factors which are able to reflect real changes in the sphere of production. The scientific and technological revolution became such a factor. As a result, society has received completely new opportunities to satisfy its vital needs. However, there were still disadvantages in such changes - the scientific and technological revolution led to an increase in the requirements for the quality of the workforce and required highly educated professionals. In this situation, the socio-psychological component of relations between the participants in the production process was of great importance. As a result, it became necessary to humanize the relationship between them in the social dialogue as well.

Social partnership was studied by both Western and domestic scientists, who were significantly inferior to the first. Foreign historiography makes it possible to trace that social partnership was studied in the middle of the 20th century. Soviet historiography paid great attention to the study of socio-economic processes, but for some reason the problems of social partnership were not brought up for discussion due to the fact that the contradictions between labor and capital at the level of state ideology were eliminated, and therefore there were no reasons for social conflicts. Social partnership was at that time "alien to socialism" system of social relations.

Europe has been exploring the social dialogue between employer and employee for quite some time now. Germany back in the 70s. 19th century entered into the first tariff agreement. In the XX century. Ludwig Erhard from Germany and Gunnar Myrdal from Sweden developed the theory of the welfare state, which paid great attention to social partnership, which was reflected in political economic works, which clearly outlined the goals of the economic and political development of the state for the benefit of society.

It was the socio-political upheavals of the last century that formed the global scale of the problem of preserving social peace. After the revolutionary upheavals and changes that took place in Russia, together with the League of Nations in 1919, the International Labor Organization or the ILO was created, which in its activities sought to realize the aspirations of its members for the worldwide establishment of the legal order in relations between governments, employers and workers' organizations .

The International Labor Conference in 1944 adopted a Declaration that clarified the main objectives and goals of the International Labor Organization. The following principles were the basis of its activity: labor is not a commodity, freedom of speech and association - necessary condition for constant progress, poverty is a threat to the general welfare, all people, without exception, have the right to pursue their material well-being and spiritual development, subject to dignity and freedom, equal conditions and economic stability.

The tripartite structure of the International Labor Organization, which includes governments, employers and workers, is unique in the UN system. Its main strategic goal is to strengthen and develop tripartism and social dialogue.

The International Labor Conference in 1998 adopted the solemn Declaration of the International Labor Organization, which disclosed the main principles and rights in the world of work, and also reaffirmed the determination of the international community to "respect, promote and practice in good faith" the right of employers and workers to have freedom of association and collective bargaining and strive to eliminate all forms of forced or compulsory labor and discrimination in employment and employment. The Declaration also draws attention to the fact that states in any case must comply with these principles, regardless of whether they have ratified the necessary conventions or not.

Elements of social partnership in Western Europe have become integral components in the regulation of labor relations. After the world community abandoned the confrontation between labor and capital, there was a need for social partnership and dialogue, which over time became an integral component of the new social world and served as a factor for economic prosperity. The constant and fruitful dialogue was recognized at all levels without exception government controlled, as well as all organizations and firms, regardless of their form of ownership and scale of activity.

The studies of Western scientists, which contained theoretical substantiations of the problems, were considered as an attempt by the "apologists of capitalism" to oust the Marxist theory of classes and class struggle by ideological compromisers, and also as an attempt to replace it with the concept of cooperation between labor and capital. With all this, the latter was perceived by society only as reactionary-utopian, which was developed on the special order of the bourgeoisie. However, a detailed analysis of the literature of the Soviet period on social partnership makes it possible to do it by distinguishing two groups of researchers of this problem - integrative and conflict.

Social partnership is perceived by many scientists as a mechanism for regulating social conflicts, which necessarily includes exposing their exploitative nature and revealing their true anti-labor orientation.

Some authors, when studying the problems of solving social and labor conflicts, have attempted to define the content of the concept of "social partnership" as a "complex mechanism". They understood the essence of this category ambiguously, in connection with which they offered quite a few judgments that contradicted each other. Their mistake was that, when forming their judgments, they did not take into account the ambiguity of the concept of social partnership that developed in the process of history, and also that they mixed up its semantic meanings. In this regard, the conclusion is formed that the representatives of the conflict school did not allow any possibility of peaceful coexistence of the subjects of labor and capital. They were firmly convinced of the irresistible antagonism of the contradictions in capitalist society, and consequently, of the harmfulness of the ideology and practice of social partnership.

Others consider themselves to be representatives of the integrative direction. The basis for their work was the relationship of the theory of social conflicts, as well as their regulation and reaching an agreement. They devote all their attention to finding the most effective means of managing conflicts, as well as exploring the various paths that lead to the achievement of social harmony.

Taking into account the development of theoretical problems of cooperation between different social forces in the field of sociology and economics, the main categories of partnerships, for example, entrepreneurship, competition and market economy, gradually began to be introduced into scientific circulation.

The scientific literature of the 1990s offers various definitions of the content of the very concept of "social partnership", which is perceived in it as a complex, contradictory social process, as well as the main mechanism for regulating social and labor relations.

G.Yu. Semigin defined the main features of the formation of social partnership in Russia. In his opinion, social partnership from the beginning of its inception was formed in Russia not from below, as in the West, but from above. He draws attention to the fact that it is vital to create a mechanism to promote the formation and implementation of the most effective socio-economic policy in the state. He also assumed that in Russia there would still be a need to create economic, legal, social and psychological foundations for partnerships, and also, first of all, he notes the need to develop sufficient experience in organizational, personnel, scientific, methodological and financial support. However, it is worth noting the fact that not all the provisions presented in this book are not subject to challenge. The polemic nature of some of these provisions generates a certain interest and gives ground for reflection on the paths of the historical transition from class contradictions to coherence and partnership.

Modern realities make it clear that private ownership of the means of production prevails all over the world. It is logical to assume that if there is a class of property owners, then there must necessarily be a class of employees. Their interests are very different. In the case when a business seeks to increase production efficiency, reduce costs and at the same time get the maximum possible profit, then the employee in this situation seeks to sell his professional skills most effectively and expensively. A peaceful bridge between them can only be a mutual understanding and realization that the realization of their interests is simply impossible without each other. In recent years, various works have increasingly appeared that reveal the general problems of the theory of partnerships, which directly indicates the needs of society in the systematization of knowledge on this topic. A review of the scientific literature makes it clear that domestic scientists have not yet been able to develop one general approach to the perception and full understanding of the essence of social partnership, the classification of its models, their genesis, structure and functions.

2 Interaction of trade unions with representative authorities

Beginning in the eighteenth century, the world began to move to new levels of economic and political relations. One of the huge roles began to play trade unions. In the twentieth century, thanks to the close cooperation of the main institution of the political system of society with trade unions, the relationship between them began to take on a partnership character. In Art. 23 of the Labor Code gives a clear definition of the concept of social partnership.

Social partnership is a system of relationships between employees (representatives of employees) and employers (representatives of employers), public authorities, local governments, aimed at ensuring the coordination of the interests of employees and employers on the regulation of social relations that are part of the subject of labor law.

The main participants in the social partnership are workers, where they are represented by the heads of trade unions, and employers. Where the main task is to work on labor law, where relationships are taken as a basis, taking into account the interests of both parties. The Labor Code separates the participants and parties of social partnership. The parties to this system of interaction are employees and employers represented by duly authorized representatives.

The creation and activities of social partnership bodies, in the preparation of projects and the conclusion of contracts and agreements at various levels, are involved in both state authorities and local self-government. Since it is necessary to take into account the interests of society as a whole, and to coordinate the development of collective-contractual regulation of labor relations at various levels, to coordinate state and contractual regulation, this is what determines the work of state power and local governments.

State bodies act as a third independent party in consultations or negotiations. They provide direct support to labor relations to find mutually acceptable solutions.

State bodies are representatives to protect the interests of society as a whole, since it takes into account the opinions of the parties, taking public policy as a basis, with the help of which it is possible to make a legal decision. But State bodies and local self-government bodies are not always participants in the labor social partnership. Basically, the employer and the worker, when confronted, try not to involve third parties, since all relationships within the organization are carried out on a bilateral basis. In Art. 45 of the Labor Code of the Russian Federation, the conclusion of agreements can also be carried out on a bilateral basis without the involvement of state bodies or local governments, if the employer and worker come to such a decision. Based on this, if the parties to the confrontation come to such a decision, they are not automatically recognized as parties to the social partnership, and accordingly do not receive any rights and do not bear obligations under the agreements concluded with their participation. The only exception is that state bodies and local governments themselves act as employers or represent the interests of employers in accordance with Art. 34 of the Labor Code of the Russian Federation.

The representative for the employer may be the heads of organizations or persons authorized by the head. In case of transfer from the executive body of a joint-stock company to a managing organization or manager (individual entrepreneur), they receive the authority to act and carry out social partnership actions on behalf of the company.

Representatives for workers are usually trade unions and their associations, which are determined in their chosen body. In the absence of a trade union, or when the trade union does not have deep powers, another representative body is elected.

Subject to the provisions of the ILO No. 135 "On the Representatives of the Workers", of 1917, elected representatives on behalf of the workers, representing their interests, and not belonging to trade unions, have no right to work to undermine the position of the trade unions concerned or their representatives, but trade unions are not have the right to ignore the opinion of workers' representatives. This is the position of the international legal law recorded in Part 2 of Art. 31 of the Labor Code of the Russian Federation. Literally, it says: the presence of another representative cannot be an obstacle to the exercise of the powers of the trade union organization. The activities of a non-trade union representative in an organization must be based on close work and cooperation with the trade union. They also have the right to nominate their representatives in order for them to take a direct part in other representative bodies of organizations. This action is stipulated in paragraph 2 of Art. 16 of the Federal Law "On trade unions and guarantees of their activities".

Initially, social partnership provides for the achievement of consolidation between the worker and the employer. Social partnership for decision-making takes into account the need to ensure the effective operation of organizations and create a system of guarantees for the labor rights of employees.

Social partnership is one of the most complex systems of interaction between a worker and an employer. For a clearer understanding of its essence and social significance, it is necessary to understand all forms and levels of cooperation between social partners. In Art. 26 of the Labor Code of the Russian Federation there are five levels, thanks to which social partnership is possible:

Federal

Regional

Industry

Territorial

Organization level

Each level of labor partnership has its own task for regulating labor relations.

The Labor Code defines all forms of social partnership, where there is a clear idea of ​​the form of these relationships.

Also present on a parity basis are forms of cooperation that exist to solve specific social problems, for example, committees, or commissions for labor protection, or coordinating committees for employment, as well as participation in the management of extrabudgetary social funds.

One of the main forms of social partnership can be considered collective bargaining and the conclusion of collective agreements. They condition the exercise by workers, or their representatives between the employer, of labor rights for the implementation of collective bargaining regulation. Thanks to this form of social partnership, it is possible to achieve social peace in society, and also allows you to more correctly conduct labor and all related relations. Social partnership also helps in establishing clear working conditions.

Consultations between social partners have traditionally been carried out at the federal, regional, territorial and ending with the level of organization. Consultations between partners have traditionally been carried out at the federal, regional, territorial levels in permanent tripartite commissions.

Separate legislative and other regulatory legal acts provide for consultations of social partners in other forms, for example, Article 21 of the Employment Law provides for the participation of trade unions and other representative bodies of workers in promoting employment. In particular, at the suggestion of trade unions, executive authorities, employers hold mutual consultations on the problems of employment.

Consultations at the organization level are carried out as part of the participation of employees in the management of the organization. Consultations are provided for, for example, Art. 372, 373 of the Labor Code of the Russian Federation in the implementation of local regulation of labor relations or termination of an employment contract at the initiative of the employer.

The collective agreement may also provide for other cases of consultations with representatives of employees, for example, when deciding on the reorganization of an enterprise, declaring it bankrupt, or mass layoffs of employees. Consultations are carried out in order to take into account the legitimate interests of employees when making management decisions and enforcement of their labor rights.

The next form of social partnership is the participation of employees in the management of the organization. Such interaction of employees and their representatives with the employer is carried out exclusively at the level of the organization, in accordance with Art. 52 of the Labor Code of the Russian Federation, employees have the right to participate directly or through their representative bodies in management.

The participation of employees in the management of the organization should ensure that their interests are taken into account when making certain decisions. The Labor Code identifies several forms of such participation. In particular, employees' representatives have the right to receive information that directly affects the interests of employees; express an opinion on the adoption of local regulations, the dismissal of trade union members, involvement in overtime work, work on weekends and non-working holidays and in other cases provided for by law or a collective agreement; discuss with the employer questions about the work of the organization, make proposals for its improvement.

In practice, the most important form of participation of employees in the management of an organization is the consideration of the opinion of the representative body of employees in the implementation of local regulation of labor relations and the adoption of specific management decisions -

Consideration of the opinion of the representative body of employees is necessary, for example, when drawing up shift schedules, adopting a local regulatory act providing for the division of the working day into parts, a local regulatory act establishing labor standards, and instructions on labor protection.

The representative body of workers participates in the establishment of increased wages for workers engaged in heavy work, work with harmful and (or) dangerous and other special working conditions, as well as for work at night, in determining the forms vocational training, retraining and advanced training of employees.

When implementing law enforcement actions, only the opinion of the elected trade union body is taken into account, other representatives of employees do not participate in resolving issues of introducing part-time work in order to save jobs, dismissal of employees who are members of the trade union, and involvement in overtime work.

The next form of social partnership is the participation of representatives of employees and the employer (employers) in pre-trial and out-of-court resolution of labor disputes.

Cooperation between employees and the employer (employers) is carried out in resolving labor disputes.

When resolving individual: labor disputes, representatives of employees and the employer on an equal basis create a commission on labor disputes, which considers the majority of individual labor disputes.

When resolving collective labor disputes, an out-of-court conciliation procedure for resolving a dispute is used: by agreement of the parties, a conciliation commission is created from their representatives, the parties participate in the selection of a mediator, in the creation of labor arbitration, negotiate to determine the minimum required work (services), negotiations during a strike with the purpose of resolving existing disputes. All these actions should be considered as cooperation of the parties to the dispute, their participation in the out-of-court settlement of a collective labor dispute.

In addition to these forms, in accordance with the current legislation and established practice, the following is used: the creation on a parity basis of permanent advisory, coordinating bodies, the participation of social partners in the management of extra-budgetary social funds, consideration and consideration by employers and state authorities of proposals from trade unions.

Research and practice show that until a unified model of interaction between state bodies and trade unions has been formed, laws that adequately reflect the reality of the Russian political system have not been adopted.

3 Interaction of trade unions with executive authorities, associations of employers, the practice of applying collective agreements and agreements in protecting the rights of workers

From the very beginning of the emergence of the Russian trade union movement, its fundamental feature was its close connection with the activities of political parties and the Soviets of Workers' Deputies, born of the workers' movement. The trade unions, which arose later than the parties in 1905, as a social trend, involuntarily experienced their influence and a certain dependence on them. In turn, the trade unions, with their best cadres and support, contributed to the strengthening of both the Soviets of Workers' Deputies and the political parties closest to them in spirit and, above all, the Russian Social Democratic Labor Party (RSDLP), which set itself the main goal - the liberation of the proletariat. from exploitation.

The relationship of trade unions with political parties, authorities and administration throughout history has evolved in different ways, but has always been a significant factor in public life.

What are the similarities and differences between the subjects of these relationships, primarily political parties and trade unions?

Parties, expressing the interests of a part of the people, seek to gain power (up to a change in the socio-political system) or gain power to implement program tasks, and also not infrequently (alas!) for the sake of satisfying the ambitions of their leaders.

Trade unions, by definition, being representatives of a larger part of the people than political parties in the face of wage workers and student youth, are called upon and strive to protect their legitimate professional and educational rights, as a rule, within the framework of the existing socio-political system.

Parties and trade unions in their activities use various methods persuasion and coercion through agitation and propaganda, negotiation, mass protests or even, if we talk about parties, armed uprisings. Important differences: ideological like-minded people unite in the party, discrimination based on political views is not allowed in the trade union; parties seek to win power, trade unions - use the existing one. Functions: for political parties - representation of the interests of certain groups of the population, the development of an ideological doctrine, the exercise of power, for trade unions - representative and control and protective functions, mainly in the field of social and labor relations.

Relations between trade unions, employers and their associations, public authorities and local governments are built on the basis of social partnership, as well as on the basis of a system of collective agreements and agreements.

Trade unions have equal rights with other social partners for parity participation in the management of state funds for social insurance, employment, compulsory medical insurance, pension and other funds formed from insurance contributions, and also have the right to trade union control over the use of these funds. The charters (regulations) of these funds are approved in agreement with the regional associations of trade unions.

Trade unions interact with state authorities, local authorities and organizations for the development of sanatorium treatment, recreation, tourism, mass physical culture and sports.

The employer, in accordance with the collective agreement (agreement), reimburses the trade union organization for the costs associated with the maintenance of freed workers in the staff of the trade union organization dealing with state social insurance issues.

Trade unions have the right to live if they protect the labor rights and interests of trade union members. This follows from Art. 370 of the Labor Code of the Russian Federation and art. 2 of the Federal Law "On trade unions, their rights and guarantees of their activities" of January 12, 1996, as amended. Federal Law of December 30, 2008 No. 309-FZ. Constitutional and labor legislation makes it possible to single out the most important human rights, which can be much more fully realized when workers unite in trade unions. They manifest themselves in the field of work, in social spheres, in the field of civil and political rights.

At present, the joint activity of the executive branch and the federation of trade unions has basically made it possible to develop a system of interaction between executive authorities and trade unions in solving urgent problems and protecting the socio-economic interests of the population of the region. Constructive cooperation in solving social and economic problems made it possible to avoid many social conflicts.

Trade unions are independent from executive authorities and local self-government bodies. In accordance with Article 5 of the Federal Law "On trade unions, their rights and guarantees of their activities", it is prohibited for these bodies and their officials to interfere in the activities of trade unions, which may lead to the restriction of their rights.

The Bolsheviks, unlike the Mensheviks, categorically opposed the "neutrality" of the trade unions in relation to state policy and political parties. The question of the neutrality of trade unions was discussed at the First All-Russian Conference of Trade Unions in October 1905, but then no decision was made on this issue. However, the Stuttgart International Congress of Socialist Parties in 1907 passed a resolution condemning the neutrality of trade unions. Lenin, in an article entitled "Neutrality of trade unions" published in the newspaper "Proletary" in February 1908, condemned the position of Plekhanov, who stood for the "neutrality" of the trade unions, and emphasized: "The class interests of the bourgeoisie inevitably give rise to the desire to limit the unions to petty and narrow activities on the basis of of the existing system, to alienate them from any connection with socialism, and the theory of neutrality is the ideological vestment of these bourgeois aspirations.

How can Russian trade unions be neutral when they were connected with the Soviets of Workers' Deputies practically from the very beginning, and many of them arose almost simultaneously with them? Both had a common nature of their origin and program goals, often joined forces, supporting each other in solving problems aimed at improving the life of a working person. At the same time, the field of activity of these mass organizations of workers turned out to be optimal: the trade unions acted according to industries, the Soviets - according to the territories. For the first time the Soviets, as a rule, included representatives of trade unions, and vice versa. For example, the Charter of the Central Bureau of the Moscow Trade Unions stipulated that its meetings were attended by two representatives from the citywide Soviet of Workers' Deputies and one each from the district Soviets.

Draft normative legal acts of executive authorities affecting social and labor relations and the rights of workers are considered and adopted taking into account the opinion of trade unions.

Draft decisions and normative legal acts of the executive authorities of the region on the most important issues of social and labor relations are subject to consideration by the regional tripartite commission for the regulation of social and labor relations.

Federations of trade unions of the regions, as necessary, should inform the governor of the region about emerging problems in the field of social and labor and other directly related relations and make appropriate proposals for consideration by the regional administration.

In a number of cases, executive authorities in the regions, taking into account the positive results of the implementation of previously adopted agreements, adopt resolutions containing measures to implement existing agreements.

3. Trade union control and judicial protection of the labor rights of workers

1 The concept and scope of trade union control, the procedure for its implementation

In ch. 58 of the Labor Code enshrines the right of the trade union to exercise control over the observance of labor legislation.

The main powers of professional labor inspectorates are:

regardless of the organizational and legal form of the enterprise, freely visit them;

control compliance with the legislation of the Russian Federation on labor and trade unions, as well as other regulatory legal acts containing labor law norms;

ensure the safety of employees of organizations;

conduct an independent examination of working conditions;

to investigate accidents at work and occupational diseases;

managers and other officials are obliged to inform trade unions about the state of conditions and labor protection;

trade unions should receive full information about accidents at work and occupational diseases;

in order to eliminate discovered violations of labor legislation and other regulatory acts containing labor law norms, they are obliged to send submissions to employers;

to check the state of conditions and labor protection, the fulfillment of the obligations of employers, provided for by collective agreements and agreements;

take part in the work of commissions for testing and commissioning production facilities and means of production as independent experts, etc.

Legal trade union inspectors have the right to freely visit enterprises where members of this trade union or association work to conduct inspections of compliance with labor legislation, on trade unions, the procedure for compensation for harm to health from work injuries, as well as the implementation by the administration of enterprises of the terms of the collective agreement and its compliance current legislation. The administration is obliged to provide them with the necessary information and documents.

The requirements of the trade union body and its inspections to eliminate violations of labor and trade union legislation are mandatory for the administration, the owner of the enterprise, regardless of the form of ownership, the scope of economic activity and departmental affiliation.

The employer is obliged to inform the relevant trade union body within a week of the results of consideration of his submission and the measures taken.

In order to comply with labor legislation, trade unions and their associations have the right to create labor inspectorates, endowed with the powers provided for by the regulations on these inspections, approved by all-Russian trade unions and their associations.

Trade union organizations at the interregional and territorial level can create legal inspectorates to monitor compliance with labor laws, and technical inspectorates to control labor protection.

The right to control compliance with labor legislation and labor protection, trade unions is enshrined in the Federal Law "On Trade Unions, Their Rights and Guarantees of Activity".

One of the principles of state policy in the field of labor protection is support in the implementation of this public.

Control over compliance with the rules of labor protection is carried out by the technical inspectorate, and over the labor legislation on wages, working hours - by the legal inspectorate. Trade union bodies carry out day-to-day control over compliance with labor legislation and labor protection rules.

The control of trade unions in the field of state and public supervision extends to all types of organizational and legal forms of ownership of organizations.

The rights of trade union inspectors and authorized persons for labor protection regulated by the current Labor Code, such as:

to control the actions of the leader in compliance with labor laws;

conduct an independent examination of working conditions and ensuring the safety of employees of the organization;

take part in the investigation of accidents at work and occupational diseases;

receive from the administration of organizations information on the state of conditions and labor protection, as well as on all accidents at work and occupational diseases;

protect the rights and interests of trade union members on issues of compensation for harm caused to their health at work;

demand employers to suspend work in cases of direct threat to the life and health of employees. As you can see, here the rights of trade union labor inspectors are the same as those of state labor inspectors, i.e., of an authoritative nature;

send employers submissions on the elimination of identified labor offenses that are mandatory for consideration;

to check the state of conditions and labor protection, the fulfillment of the obligations of employers, provided for by collective agreements and agreements;

take part as independent experts in the work of commissions for testing and commissioning of production facilities and means of production;

take part in the consideration of labor disputes related to violation of labor protection legislation, obligations under collective agreements and agreements, as well as changes in working conditions;

take part in the development of draft by-laws on labor protection and coordinate them in the manner established by the Government of the Russian Federation;

apply to the relevant authorities with a demand to bring to justice those guilty of violating labor legislation, concealing the facts of accidents at work.

Authorized (trusted) persons for labor protection of trade unions have the right to freely check compliance with labor protection requirements in organizations and make proposals, mandatory for consideration by officials, to eliminate the identified violations of labor protection requirements.

The principle of trade union control over compliance with labor legislation. The right of trade unions to exercise control over compliance with labor legislation and other acts containing labor law norms corresponds to the obligation of the employer not to interfere with the exercise of trade union control in the forms established by law, as well as the duty of authorized state bodies to provide conditions for the performance of supervisory functions by the trade union. The foregoing allows us to single out the following legally significant circumstances from the content of the principle under consideration:

1) the trade unions have the right to exercise control over the observance of labor legislation and other legal acts in the forms established by law;

) the presence of the employer's representatives of the obligation not to interfere with the implementation of trade union control over compliance with labor legislation in the prescribed forms;

) the existence of an obligation for the authorized state bodies to ensure the realization of the right of trade unions to exercise trade union control over compliance with labor laws.

The proof of each of the listed legally significant circumstances allows us to conclude that this principle is observed.

Analyzing the indicated rights of trade union labor inspectors and proxies of trade unions for labor protection, we see that the Labor Code (i.e. the Law, and not just the Regulation approved by the highest trade union body) granted them significant rights to exercise trade union control over compliance with labor legislation and labor protection. And if the trade unions used these rights more actively than now, then in practice there would be much less labor offenses.

2 Participation of trade unions in judicial protection of labor rights of workers

To understand the rights of a trade union regarding the judicial protection of its members, it is necessary, first of all, to turn to procedural legislation. The Civil Procedure Code states that, in cases provided for by law, state authorities, local governments, organizations or citizens have the right to apply to the court with an application in defense of the rights, freedoms and legitimate interests of other persons at their request or in defense of the rights, freedoms and legitimate interests of an indefinite circle of persons.

The Federal Law “On Trade Unions, Their Rights and Guarantees of Activity” states that “in cases of violation of labor legislation, trade unions have the right, at the request of trade union members, other workers, and also on their own initiative, to file an application in defense of their labor rights with the authorities, adjudicating labor disputes.

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 commission on labor disputes is a mandatory primary stage, after which the dispute may go to 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.

As a general rule, the commission on labor disputes 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 commission on labor disputes), or only in a higher body.

The following labor disputes are considered directly in the court:

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 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 a labor dispute commission is not created (for example, disputes of persons who have concluded labor 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 employee damage 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 wages 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 labor dispute commission;

disputes about collective liability, about compensation by the employer for moral damage 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 about this 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 commission on labor disputes 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 performance of lower-paid work and the imposition of a disciplinary sanction. All labor disputes of civil servants are considered by a higher administration or court at the choice of the employee.

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.

The procedure for considering labor disputes in court is determined by the Civil Procedure Code of the Russian Federation and Art. 391-397 of the Labor Code. One of the most important guarantees for the protection of the labor rights of Russian citizens is their right to judicial protection. 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.

The competence, competence 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 Code of Civil Procedure of the Russian Federation, 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 of the Civil Procedure Code of the Russian Federation.

The law establishes the following statute of limitations for bringing a labor dispute to court:

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 commission on labor disputes - 10 days, 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 decision of the commission on labor disputes 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.

Refusal of the judge to accept the application on the grounds of the expiration of the limitation period is illegal. The issue of the statute of limitations should be decided in 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 decided by the court itself.

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

Not only the interested employee, employer, but also the prosecutor, as well as the trade union have the right to initiate a case in court.

Plaintiffs - 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 Civil Procedure Code of the Russian Federation, 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 annul, change or uphold the decision of the labor dispute committee; he decides the dispute on the merits.

Claims for reinstatement at work 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.

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 in an amicable agreement. The court issues a ruling on accepting the plaintiff's waiver of a claim in a labor case or on approving a settlement agreement between the disputing parties to an employment legal relationship, which simultaneously terminates the proceedings. 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 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 may appeal the decision of the court to a higher court within 10 days. 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 consideration to the same court in a different or in the same composition, or itself make a new decision on the merits of the dispute, 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 appealing to the court of actions and decisions that violate the rights and freedoms of citizens” No. 4866-1 provided that a citizen can appeal to the court any collegial and sole decisions of bodies and officials that violate his rights and freedoms (hence, in the sphere of work) or creating obstacles for their implementation, as well as if any duty is unlawfully imposed on him or he is unlawfully held liable in any way. This appeal can be either directly to the court within a three-month period, 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 day the month expires after he filed a 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.

I will give an example of the practice of judicial protection of rights with the participation of the Trade Union in the Arbitration Court of Vladivostok Case No. A49-11162 / 2012-504 / 9 October 21, 2012

The Arbitration Court of Vladivostok, composed of Judge M.N. Kholkina, while keeping the minutes of the court session by Assistant Judge I.A. Lavrova, having considered at the court session the case on the claim of the All-Russian Trade Union of Workers of Local Industry and Public Utilities Enterprises represented by the organization for the recovery of 75 071 rub. 98 kop. with the participation of: from the plaintiff: Nikitenko The.F. - representative by power of attorney No. 19 dated November 18, 2012; Osipova N.M. - representative by power of attorney No. 20 dated 10/18/2012

The All-Russian Trade Union of Workers of Local Industry and Public Utilities, represented by a regional organization, Vladivostok, filed a lawsuit with the Primorsky Territory Arbitration Court against the Closed Joint-Stock Company Plant Metaplast, Kolyshley, Primorsky Territory, to recover the amount of 75,071 rubles. 98 kop. in the form of trade union membership dues deducted from the employees of the closed joint stock company "Metaplast" plant as of September 01, 2012 and not transferred to the plaintiff.

The representative of the defendant did not appear at the hearing, he did not submit a response to the claim. The defendant was notified of the time and place of the trial in accordance with the established procedure. The defendant's failure to appear shall not preclude the consideration of the dispute.

Taking into account the opinion of the plaintiff, the arbitration court considers it possible to consider the dispute in the absence of the defendant on the basis of the materials available in the case in accordance with parts 1 and 3 of Article 156 of the Arbitration Procedure Code of the Russian Federation.

At the hearing, the plaintiff supported the claims in full.

After examining the materials of the case, after listening to the plaintiff's explanations, the Arbitration Court of the Penza Region established:

The defendant, a closed joint-stock company plant "Metaplast", on the basis of written statements of its employees - members of the trade union, monthly deducted trade union dues from the wages of these employees in the amount of 1% of the amounts accrued for issuance.

In accordance with paragraph 3 of Article 28 of the Federal Law of the Russian Federation dated January 12, 1996 No. 10-FZ “On trade unions, their rights and guarantees of activity”, Article 377 of the Labor Code of the Russian Federation, if there are written applications from employees who are members of a trade union, the employer is obliged monthly transfer the amount of contributions deducted from the wages of employees to the account of the trade union organization free of charge. In this case, the employer has no right to delay the transfer of these funds.

This duty was not fulfilled by the respondent. Thus, the defendant has so far unreasonably withheld the amount of trade union dues in the amount of 75,071 rubles. 98 kop., prevailing as of September 01, 2012, which is confirmed by a bilateral act of reconciliation of the plaintiff's and the defendant's debts as of September 1, 2012 and by the plaintiff at the hearing.

In accordance with Article 1102 of the Civil Code of the Russian Federation, a person who, without the grounds established by law, other legal acts or a transaction, acquired or saved property at the expense of another person is obliged to return to the latter the unjustly acquired or saved property.

Considering that the court established the fact that the defendant unjustifiably withheld trade union dues, the amount of which is confirmed by the case materials, the defendant's claims were not challenged, the arbitration court considers that the plaintiff's claim is subject to satisfaction in full, in the amount of 75,071 rubles. 98 kop. in accordance with Article 1102 of the Civil Code of the Russian Federation.

According to Article 110 of the Arbitration Procedure Code of the Russian Federation, the costs of the state fee for the claim are borne by the defendant.

Guided by articles 110, 167-170 of the Arbitration Procedure Code of the Russian Federation, the arbitration court made a decision.

The claims of the All-Russian Trade Union of Workers of Local Industry and Public Utilities, represented by the organization, shall be satisfied in full, the costs of the state duty shall be attributed to the defendant.

Collect from the closed joint-stock company the plant "Metaplast", an urban-type settlement. Kolyshley in favor of the All-Russian Trade Union of Workers of Local Industry and Public Utilities, represented by the organization, Vladivostok, trade union dues in the amount of 75,071 rubles. 98 kopecks withheld from the wages of employees, as well as expenses for state duty in the amount of 2751 rubles. 16 kop. The decision of the arbitration court may be appealed within one month to the appellate instance of the arbitration court of Primorsky Krai.

It follows from the example that 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 decision of the court is enforced upon its entry into legal force, except for cases of immediate execution.

Trade union representatives regularly provide assistance to union members. Especially, by the way, such assistance in case of illegal dismissal of an employee.

The trade union can be a so-called procedural plaintiff - in protecting the interests of specific members of the trade union, or as a representative to act as a defender of an indefinite circle of persons.

Therefore, it makes sense to collect statements from members of the trade union about their consent to the protection of interests in court and, on their own behalf, file claims with the court for the provision of specific rights and benefits to specific members of the trade union in accordance with the collective agreement. The number of applications must correspond to the number of trade union members who have expressed a desire to defend their interests in court.

Conclusion

Summarizing the results of the study, the following conclusions can be drawn.

The main function of trade unions is to represent and protect the rights and interests of workers in the labor sphere. This function has found legal consolidation in Art. 352 of the Labor Code of the Russian Federation of December 30, 2001

Trade unions implement their protective function by negotiating with employers' associations, the Government of the Russian Federation, executive authorities of the constituent entities of the Federation, local governments, seeking through the system of social partnership to establish a fair value of labor in the labor market, create working conditions that meet the requirements of safety and hygiene, social guarantees for persons in need of special care of the state. Trade unions exercise control over observance of the labor legislation.

The protection of the employee's right to work in conditions that meet the requirements of labor protection is carried out by trade unions in the process of adopting regulations, in collective bargaining, concluding agreements and collective agreements, monitoring compliance with labor protection legislation, participating in the resolution of labor disputes.

Certification of workplaces for their compliance with labor protection requirements is important for protecting the right of workers to working conditions that meet the requirements of labor protection. The opinion on the mandatory attachment to the employment contract of the attestation passport of the workplace is supported in relation to work with harmful and dangerous working conditions.

Creating working conditions that meet the requirements of labor protection requires considerable financial resources. According to the author, it is necessary to strengthen the participation of the state in ensuring the requirements of labor protection both through the financing of labor protection measures, which is provided for by Part 1 of Art. 226 of the Labor Code, and through taxation. It is proposed to exempt from tax part of the profit, which is directed to the improvement of labor protection, including the activities provided for by agreements, collective agreements.

If necessary, trade unions organize protests, strikes, rallies, marches, pickets, and conduct other collective actions.

At present, trade unions need to make full use of the right of legislative initiative at all levels, despite the difficulties of passing and considering their proposals in various instances. In the interests of the working people, they strive to be active in law-making on social issues, using advisory powers to conduct an examination and comment on drafts, and participate in working groups for their preparation.

It is important to note that in addition to the implementation of direct control functions of trade union bodies, the process of trade union control is indirectly implemented when trade union bodies exercise other powers fixed in Russian legislation. The most common here can be recognized as representative procedures with the participation of trade union bodies and procedures for the participation of trade unions in collective measures to protect the labor rights of citizens.

In order to increase labor efficiency and strengthen the stability of labor relations, it is proposed to introduce a personnel movement system at enterprises on a large scale. Collective and labor agreements should serve as legal instruments in this case.

The international nature of the economy today requires trade unions to master new "layers" in their work, to carry out work outside the enterprise, the territory of a constituent entity of the Russian Federation, and national borders. The legal basis for the implementation of global social partnership should be protected by the Federal Law "On Trade Unions, Their Rights and Guarantees of Activity".

In conclusion, I want to say, taking into account the historical role and importance of trade unions in protecting the labor rights and socio-economic interests of workers, in developing democratic forms of citizen participation in managing economic and political processes, a democratic, legal and social state should support trade unions and take care of the legislative consolidation of their powers.

Glossary

No. p / p Concept Definition 1 Trade union voluntary public association of people connected by common interests by the nature of their activity, in production, in the service sector, culture, etc. d2 Protection of labor rights is the enforcement of labor rights, the restoration of illegally violated rights and the establishment of real effective responsibility by labor legislation and the actions of relevant bodies employers and their representatives (administration) for violation of labor legislation, its non-execution, i.e. for violation of the labor rights of workers.3 The state is a power-political organization with sovereignty, a special apparatus of control and full implementation of the provisions of labor legislation by all subjects of labor law5 Social partnership is a system of relationships between employees (representatives of employees) and employers (representatives of employers), public authorities, local governments, aimed at ensuring the coordination of the interests of employees and employers on the regulation of social relations that are part of the subject of labor law regulating social and labor relations in an organization or with an individual entrepreneur and concluded by employees and the employer represented by their representatives8 The employee is the subject of labor law, individual who works under an employment contract with an employer and receives a salary for this9 Employer entity, an individual, a public legal entity that has entered into an employment relationship with an employee.

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List of abbreviations

ILO - International Labor Organization

RF - Russian Federation

Labor Code of the Russian Federation - Labor Code of the Russian Federation

Civil Code of the Russian Federation - Civil Code of the Russian Federation

USSR - Union of Soviet Socialist Republics

FZ - Federal Law

10 Labor relationship its subjects and content.

11 Labor legal capacity (legal personality) of the employee, his basic rights and obligations.

12 Labor capacity of the employer, his basic rights and obligations.

13 Legal status of the head of the organization.

14 Legal relations directly related to labor relations.

1. Legal relations on the organization of labor and labor management.

2. Legal relations on social partnership, collective bargaining, conclusion of collective agreements and agreements.

15. Grounds for the emergence of labor relations

16. Social partnership in the sphere of work: concept, basic principles, levels and forms of social partnership.

17 Representatives of workers and employers.

18. Bodies of social partnership and their participation in the formation and implementation of state policy in the sphere of labor.

19 Collective bargaining and their importance.

20 Collective agreement: parties, content, procedure for conclusion and action.

21 Agreements, their types. The procedure for developing a draft agreement, the effect of agreements.

23. The ratio of the employment contract and the employment relationship, the legal significance of the employment contract.

24. Fixed-term employment contract and its scope.

25. The general procedure for concluding an employment contract and its form, guarantees when concluding an employment contract, documents submitted when concluding this contract and its entry into force.

26. Work book, its meaning, issuance of a work book and copies of documents related to work.

27. Test when applying for a job.

28. Part-time: internal and external., combination of professions (positions).

29. Changing the terms of the contract determined by the parties.

30. Transfer to another permanent job and relocation.

31. Temporary transfers and their types.

32. Suspension from work.

33. Classification of grounds for termination of an employment contract.

34. Grounds and procedure for termination of an employment contract at the initiative of the employer.

35. Termination and termination of the employment contract with the head of the organization.

36. Dismissal in connection with the liquidation of the organization or the termination of activities by the employer - fl.

37. Dismissal to reduce the number or staff of employees.

38. Dismissal due to inconsistency with the work performed or the position held.

39. Dismissal for repeated violations of labor discipline.

40. Dismissal for a single gross violation of labor duties by an employee.

41. Termination of the employment contract due to circumstances and at the initiative of bodies that are not a party to the employment contract, independent of the will of the parties.

42. Severance pay upon dismissal.

43 Personal data of an employee: the procedure for obtaining, processing, storing and transferring personal data of an employee.

44. The concept of working time and its types.

Part 3 of Article 91 obliges the employer to keep records of the time actually worked by each employee.

45 Work outside normal working hours.

46. ​​Mode and accounting of working time.

47. The right to rest and its guarantees. Types of recreation.

48. Annual paid holidays, their types and procedure for granting.

49. The procedure for granting annual leave, their order, division of leave into parts.

50. Annual paid additional holidays.

51. The concept and features of wages, methods of its legal regulation and state guarantees for wages of workers.

52. Legal protection of wages: the procedure and terms of its payment, cases of deductions from wages, limiting the amount of deductions from wages.

54. Wage setting and wage systems.

55. Systems of remuneration of workers in state and municipal institutions.

56. Remuneration of labor when performing work in special conditions and in case of deviation from normal working conditions.

4 Groups of special working conditions:

58. Rationing of labor, types of labor standards, the procedure for their introduction, replacement and revision.

63. Types of disciplinary responsibility.

73. Guarantees and compensations to employees related to the termination of an employment contract

74. Special labor protection for women and persons with family responsibilities

75. Investigation and recording of industrial accidents

76. Protection of labor rights and freedoms, ways to protect them

77. Responsibility for violations of labor legislation and other acts containing labor law norms

78. Bodies of state control and supervision over compliance with the labor law and other regulations containing labor law norms

79. Federal Labor Inspectorate

80. Basic rights and obligations, responsibility of state labor inspectors

81. Protection of labor rights and legitimate interests of workers by trade unions

82. Self-protection by workers of labor rights

83. General characteristics of labor disputes, their classification

84. Individual Labor disputes and the procedure for their consideration and resolution in the CTC

85. Features of the court. The procedure for consideration of individual labor disputes

86. Collective labor disputes and the procedure for their consideration and resolution

87. The right to strike and its limitations. Holding a strike, declaring it illegal

81. Protection of labor rights and legitimate interests of workers by trade unions

The main issues to be resolved with the participation of trade unions acting in the interests of workers are:

1) regulation of labor relations (lawmaking and law enforcement);

2) control over compliance with labor legislation and other acts containing labor law norms;

3) resolution of individual and collective labor disputes.

Trade unions protect the rights of their members to freely dispose of their abilities for work, to choose their type of activity and profession, as well as the right to remuneration for work without any discrimination and not lower than the minimum wage established by federal law.

With regard to workers who are members of a trade union, this public organization is an unconditional representative and defender of their rights and interests. As for workers who are not members of a trade union, trade unions have no obligation to them, but they have the right, at the request of the employee or on their own initiative, to defend his labor rights, in particular in the event of an individual labor dispute (Article 23 of the Federal Law dated January 12, 1996 "On trade unions, their rights and guarantees of activity").

In the field of legal regulation labor conditions, trade unions have been given the authority to participate in the establishment of general (collective) working conditions(lawmaking) Andapplication of labor standards the rights(including the establishment of individual working conditions).

At the federal level The powers of trade unions in establishing general working conditions are expressed in the possibility of their participation in the law-making work of federal legislative and executive bodies. First of all, this is expressed in the activities of trade unions in the Russian tripartite commission for the regulation of social and labor relations (RTK), within the framework of which drafts of many federal laws and decrees of the Government of the Russian Federation are prepared, as well as the discussion of drafts prepared by the parties of the RTK.

At the level of subjects of the Russian Federation the possibility of participation of trade unions in the establishment of working conditions is often wider than at the federal level. In addition to participation in regional tripartite commissions for the regulation of labor relations, other rights granted by the federal legislation of the constituent entities of the Russian Federation, in many regions trade unions have the right of legislative initiative and actively use it.

At the territorial level trade unions also participate in the development and discussion of draft regulations on labor issues adopted by local governments.

At the local level the employer makes decisions taking into account the opinion of the relevant trade union body in cases provided for by the Labor Code of the Russian Federation (Article 371).

The procedure for taking into account the opinion of the elected body of the primary trade union organization, representing the interests of employees of the organization when adopting local regulations, containing norms of labor law, provides for Art. 372 of the Labor Code of the Russian Federation.

This order consists of the following steps.

1. In cases provided for by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation, a collective agreement, agreements, the employer, before making a decision, sends a draft local regulatory act and justification for it to the elected body of the primary trade union organization, representing the interests of all or most employees. Local regulations adopted without complying with the established Art. 372 of the Labor Code of the procedure for taking into account the opinion of the representative body of employees are not subject to application. In such cases, labor legislation and other normative legal acts containing labor law norms, a collective agreement, agreements are applied.

no later than five working days from the date of receipt of the draft of the specified local regulatory act sends to the employer reasoned opinion project in writing.

3. If the elected trade union body objects to the draft local regulatory act submitted by the employer, or makes proposals for its improvement, the employer may agree with it or is obliged in three days after receiving a reasoned opinion of the elected body of the primary trade union organization, to conduct additional consultations with him in order to reach a mutually acceptable solution.

4. If no agreement is reached, the disagreements that have arisen are documented in a protocol.

After that, the employer has the right to adopt a local normative act, and the elected body of the primary trade union organization entitled to appeal to the appropriate state labor inspectorate or to the court. This trade union body has the right to start the procedure of a collective labor dispute in the manner prescribed by the Labor Code of the Russian Federation.

Upon receipt of a complaint (application) from the elected body of the primary trade union organization, the State Labor Inspectorate is obliged to within one month from the date of receipt of the complaint (application), conduct an inspection and, if a violation is detected, issue an order to the employer to cancel the specified local regulatory act.

The procedure for taking into account the reasoned opinion of the elected body of the primary trade union organization when terminating the employment contract at the initiative of the employer consists of the following stages:

1. When deciding on the possibility of terminating the employment contract in accordance with paragraphs. 2, 3 or 5 hours 1 tbsp. 81 of the Labor Code of the Russian Federation with an employee who is a member of a trade union, the employer sends to the elected body of the corresponding primary trade union organization draft order, as well as copies of documents, which are the basis for making this decision.

2. Elected body of the primary trade union organization in within 7 business days from the date of receipt of the draft order and copies of documents, it considers this issue at its meeting, determines its opinion, motivates it by the norms of the law with actual circumstances, makes a decision on this issue in the manner prescribed by the charter of the trade union and sends it to the employer in writing.

3. If the elected trade union body does not agree, it within three working days conducts with the employer or his representative additional consultations , the results of which are presented protocol. If there is no general agreement on the results of consultations, the employer after 10 working days from the date of sending the draft order and copies of documents to the elected trade union body, has the right to make the final decision.

4. The decision to dismiss the employee, taken by the employer after following the above procedure, can be appealed elected trade union body to the relevant state labor inspectorate, which within 10 days from the date of receipt of the complaint (application) considers the issue of dismissal. If the dismissal is recognized as illegal, it issues to the employer a binding prescription on the reinstatement of an employee at work with payment for forced absenteeism.

At the same time, neither the employee nor the elected trade union body representing his interests is deprived of the right to apply directly to the court, and the employer is not deprived of the right to appeal to the court the order of the state labor inspectorate.

5. If there is a reasoned opinion of the elected body of the primary trade union organization, the employer has the right to terminate the employment contract with the employee no later than one month from the date of receipt of this opinion.

During the specified period, periods of temporary disability of the employee, his stay on vacation and other periods of absence of the employee when he retains his place of work (position) are not counted.

Trade unions have the right to exercise public (trade union) control over compliance with employers and their representatives of the labor law and other legal acts containing labor law norms, their fulfillment of the terms of collective agreements, agreements. Having identified violations, trade unions have the right to demand their elimination.

Employers are obliged within a week from the day receiving a request to eliminate the identified violations, inform the relevant body of the trade union organization about the results of consideration of this request and the measures taken.

Trade unions may, in order to exercise control, create legal and technical labor inspectorates who act in accordance with laws and established regulations on them. The right to create belongs to all-Russian trade unions and their associations, which approve the relevant regulations on inspections. Interregional as well as territorial associations (associations) of organizations of trade unions, if they operate on the territory of one constituent entity of the Russian Federation, can create legal and technical inspections of trade unions and adopt regulations on them in accordance with the model regulations of the corresponding all-Russian association of trade unions.

Legal Labor Inspectorate supervises compliance with the labor law and other regulatory legal acts containing labor law norms, except for labor protection norms. Compliance with labor protection standards is controlled technical labor inspectorate, as well as authorized (trusted) persons on labor protection of trade unions operating directly in organizations.

Union labor inspectors have the right to freely visit any employers who employ members of this trade union or trade unions that are part of the association, for inspections observance of labor legislation and other normative legal acts containing labor law norms, legislation on trade unions, fulfillment of the terms of collective agreements, agreements.

Trade union labor inspectorates, authorized (trusted) persons for labor protection of trade unions have the right to:

exercise control over compliance by employers with the labor law and other regulatory legal acts containing labor law norms;

conduct an independent examination of working conditions and ensuring the safety of employees;

take part in the investigation of accidents at work and occupational diseases;

receive information from managers and other officials of organizations, employers - individual entrepreneurs on the state of working conditions and labor protection, as well as on all accidents at work and occupational diseases;

protect the rights and interests of trade union members on issues of compensation for harm caused to health at work (work

demand employers to suspend work in the event of a direct threat to the life and health of employees

send employers submissions on the elimination of identified violations of the labor law and other regulatory legal acts containing labor law norms that are mandatory for consideration;

to check the state of conditions and labor protection, fulfilling the obligations of employers, provided for by collective agreements, agreements;

take part in the work of commissions for testing and commissioning of production facilities and means of production as independent experts;

take part in the consideration of labor disputes related to violation of labor legislation and other regulatory legal acts containing labor law norms, obligations stipulated by collective agreements and agreements, as well as changes in working conditions;

take part in the development of federal laws and other legal acts of the Russian Federation, laws and other legal acts of the subjects of the Russian Federation, legal acts of LSG bodies containing labor law norms;

take part in the development of draft by-laws on labor protection that establish state regulatory requirements for labor protection, as well as coordinate them in the manner established by the Government of the Russian Federation;

apply to the relevant authorities with a demand to bring to justice those responsible for violating the labor law and other acts containing labor law norms, concealing the facts of accidents at work.

Trade unions, their labor inspectorates interact with the federal executive authority, which carries out state. supervision and control over compliance with the labor law and other legal acts containing labor law norms, and its territorial bodies, other federal executive bodies exercising control and supervision functions in the established area of ​​activity.

Authorized (trusted) persons for the protection of a pile of trade unions have the right to check freely in organizations compliance with labor protection requirements and bring in mandatory for consideration by officials of organizations, employers - individual entrepreneurs proposals to eliminate the identified violations of labor protection requirements.

When exercising public control, trade unions, their inspections interact with state supervisory and control bodies.

Guarantees for employees who are members of the elected collegial bodies of trade union organizations and are not released from their main work

Cm. ** Determination of the Constitutional Court of the Russian Federation dated 04.12.2003 N 421-O. **

Dismissal at the initiative of the employer in accordance with paragraph 2, 3 or 5 of part 1 of Art. 81 TK leaders (their deputies) elected collegial bodies of primary trade union organizations, elected collegiate bodies of trade union organizations of structural subdivisions of organizations (not lower than shop and equated to them), not released from the main job, is allowed in addition to the general procedure for dismissal only with prior consent corresponding higher elected trade union body.

*Resolution of the Constitutional Court of the Russian Federationdated January 24, 2002 "In the case of the review of the constitutionality of the provisionspart two of article 170 and part two of article 235 of the Labor Codeof the Russian Federation and paragraph 3 of Article 25 of the Federal Law "On Trade Unions,their rights and guarantees of activity" in connection with the requests of the Zernogradsky District Court of the Rostov Region and the Central District Court of the city of Kemerovo"": applying Part 1 of Art. 374 of the Labor Code, one should not take into account the requirements for prior approval of the relevant elected higher trade union body, in addition to the general procedure for dismissal, when terminating an employment contract with an employee who is a member of the trade union body and not released from the main job, in the event of repeated failure to perform labor duties without valid reasons, t .e. upon dismissal of these persons under paragraph 5 of Art. 81 of the Labor Code does not require prior approval of the relevant higher elected body, in addition to the general procedure for dismissal.*

In the absence of a higher elected trade union body, the dismissal of these workers is carried out in accordance with Art. 373 TK.

Members of the elected collegial bodies of trade union organizations who are not released from their main work are exempted from it to participate as delegates in the work of congresses and conferences convened by trade unions, to participate in the work of elected collegial bodies of trade unions, and in cases where this is provided for by a collective agreement, - also for the period of short-term trade union training. The conditions for release from work and the procedure for paying for the time of participation in these events are determined by the collective agreement, agreement.

(see text in previous edition)

Guarantees for exempt trade union workers (see text in previous edition)

An employee released from work in connection with holding an elective position in an elective body of a primary trade union organization, after the expiration of his term of office, is given the previous job (position), and in its absence, with the written consent of the employee, another equivalent job (position) with the same employer. If it is impossible to provide such a job (position) due to the liquidation of the organization or the termination of activity by an individual entrepreneur or the absence of a corresponding job (position), the all-Russian (interregional) trade union retains for this employee his average earnings for the period of employment, but not more than 6 months, and in in case of study or retraining - for up to 1 year. If the employee refuses from the proposed relevant job (position), according to the general rule, the average salary for him for the period of employment is not saved.

Working hours a released trade union worker in an elective position in the elective body of the primary trade union organization is counted in his general and special seniority.

Guarantees of the right to work for workers who were members of an elected trade union body

Termination of the employment contract at the initiative of the employer on the grounds provided for in paragraphs 2, 3 or 5 of the first part of Article 81 of the Labor Code with head of the elected body the primary trade union organization and his deputies within 2 years after the end of their term of office is allowed only in accordance with Art. 374 TK.

(see text in previous edition)

Obligations of the employer to create conditions for the implementation of the activities of the elected body of the primary trade union organization(see text in previous edition)

The employer is obliged to provide the elected bodies of the primary trade union organizations of its employees, free of charge, with a room for meetings, storage of documentation, and also provide the opportunity to post information in a place (places) accessible to all employees.

(see text in previous edition)

An employer with more than 100 employees shall, free of charge, provide the elective bodies of primary trade union organizations with at least one equipped, heated, electrified premises, as well as office equipment, communications equipment and the necessary regulatory legal documents for use.

(see text in previous edition)

The employer can provide, in accordance with the collective agreement, for free use to the elected body of the primary trade union organization and other objects.

(see text in previous edition)

In the cases provided for by the collective agreement, the employer deducts the funds of the primary trade union organization for mass cultural and physical culture and health-improving work.

From a written application of its employees who are members of a trade union, the employer monthly transfers trade union membership dues from the employees' wages to the account of the trade union organization free of charge. Employers who have concluded collective agreements or are subject to sectoral (intersectoral) agreements, at the written request of workers who are not members of the trade union, monthly transfer funds from the wages of these workers to the accounts of the trade union organization.

(see text in previous edition)

The wages of the head of the elective body of the primary trade union organization may be paid at the expense of the employer.

(see text in previous edition)

Responsibility for violation of the rights of trade unions

Persons violating the rights and guarantees of the activities of trade unions shall be liable in accordance with this Code and other federal laws.

(see text in previous edition)

 

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