Unequal Wages: Discrimination or Employer's Right? Provide workers with equal pay for work of equal value

New edition of Art. 132 of the Labor Code of the Russian Federation

The salary of each employee depends on his qualifications, the complexity of the work performed, the quantity and quality of labor expended and is not limited to the maximum amount, except for the cases provided for by this Code.

Any kind of discrimination in establishing and changing the conditions of remuneration is prohibited.

Commentary on Article 132 of the Labor Code of the Russian Federation

The application of Articles 3 and 132 of the Labor Code of the Russian Federation in the aggregate gives grounds to assert: discrimination in wages is prohibited depending on gender, race, skin color, nationality, language, origin, property, social and official status, age, place of residence, attitude to religion , political convictions, belonging or not belonging to public associations, as well as from other circumstances not related to the business qualities of the employee.

Positive in part 2 of article 132 of the Labor Code of the Russian Federation is the prohibition of discrimination not only when establishing, but also when changing the size and other conditions of remuneration. Every organization must ensure equal pay for equal work at all times. This principle is often violated in organizations where staff reductions are planned: by increasing the wages of those who will continue to work in the future, the employer leaves the previous salary (tariff rate) to those warned of the upcoming dismissal for the two months that must pass from the day of warning about dismissal before the day of termination of the employment contract. As a result, the dismissed employee receives smaller amounts not only in the form of wages, but also in the production of guaranteed payments to him - severance pay, average earnings for two to three months after dismissal (Articles 178 and 180 of the Labor Code of the Russian Federation) and unemployment benefits ... This is due to the fact that when calculating average earnings, its reduced (in comparison with employees of the same professions, positions) remuneration is taken into account. In such cases, the employee has the right to appeal against the employer's actions in the manner prescribed by law.

Another commentary on Art. 132 of the Labor Code of the Russian Federation

1. Article 132 establishes one of the principles of regulation of remuneration - remuneration depending on the quantity and quality of work without any discrimination. Its provisions are consistent with the establishment as a principle of legal regulation of labor relations to ensure the right of every employee to fair pay; Art. 21 of the Labor Code, which establishes the employee's right to wages in accordance with his qualifications, labor complexity, quantity and quality of work performed; Art. 22 of the Labor Code, which establishes the obligation of the employer to provide employees with equal pay for work of equal value.

2. To establish the dependence of an employee's wages on his qualifications, the complexity of the work performed, the quantity and quality of labor, tariff systems of remuneration are used (see article 143 of the Labor Code of the Russian Federation and a commentary to it).

3. In Art. 132 of the Labor Code of the Russian Federation contains an important rule that the wages of employees are not limited to the maximum amount. In conditions when the state does not use methods of direct regulation of the size of wages and its size is entirely determined by the results of labor, the normative establishment of the maximum amount of wages is impossible.

4. Part 2 of Art. 132 prohibits any kind of discrimination in establishing and changing the amount of wages and other conditions of remuneration, which complies with the requirements of ILO Convention No. 111 regarding discrimination in labor and occupation (ratified by the USSR by Decree of the Presidium of the Supreme Soviet of the USSR of January 31, 1961 / / USSR Air Force. 1961. N 6. Art. 58). This means that it is prohibited to establish restrictions and advantages in the field of remuneration depending on any circumstances not related to the business and professional qualities of the employee - gender, race, skin color, nationality, language, origin, property, social and official status, age , place of residence, attitude to religion, political convictions, membership or non-membership of public associations, etc. At the same time, the business and professional qualities of an employee (qualifications, quantity and quality of work, professional characteristics, the presence of additional professional skills used in the work, a responsible attitude to official duties, etc.) not only can, but should also be put into the basis for the differentiation of wages.

5. Discrimination in the sphere of wages should be understood not only as the establishment of any restrictions, but also the establishment of advantages not in connection with the business and professional qualities of the employee. Proceeding from this, it should be recognized as correct the decision of the legislator to establish remuneration for minor workers employed on reduced working hours, taking into account the duration of their work (with hourly pay) or the amount of products produced (with piecework pay), since otherwise these persons would be given advantages in terms of a sign of age.

The employer has the right:

conclude, modify and terminate employment contracts with employees in the manner and on the terms established by this Code, other federal laws;

to conduct collective bargaining and conclude collective agreements;

to encourage employees for conscientious and effective work;

require employees to fulfill their labor duties and respect the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property) and other employees, to comply with the internal labor regulations;

to attract employees to disciplinary and material liability in the manner prescribed by this Code, other federal laws;

adopt local regulations (with the exception of employers who are individuals who are not individual entrepreneurs);

create associations of employers in order to represent and protect their interests and join them;

create a works council (with the exception of employers who are individuals who are not individual entrepreneurs) - an advisory body formed on a voluntary basis from among the employees of this employer, who, as a rule, have achievements in work, to prepare proposals for improving production activities, individual production processes , introduction of new equipment and new technologies, increasing labor productivity and qualifications of workers. The powers, composition, procedure for the work of the works council and its interaction with the employer are established by a local regulatory act. The powers of the works council cannot include issues the solution of which, in accordance with federal laws, is attributed to the exclusive competence of the management bodies of the organization, as well as issues of representation and protection of social and labor rights and interests of employees, the solution of which in accordance with this Code and other federal laws is assigned to the competence of trade unions, the relevant primary trade union organizations, other representatives of workers. The employer is obliged to inform the works council about the results of consideration of proposals received from the works council and about their implementation;

to exercise the rights granted to him by legislation on the special assessment of working conditions.

The employer is obliged:

comply with labor legislation and other regulatory legal acts containing labor law norms, local regulations, collective bargaining agreements, agreements and labor contracts;

provide employees with work stipulated by the employment contract;

to ensure the safety and working conditions that meet the state regulatory requirements for labor protection;

provide employees with equipment, tools, technical documentation and other means necessary for the performance of their labor duties;

provide employees with equal pay for work of equal value;

pay in full the wages due to employees within the timeframes established in accordance with this Code, the collective agreement, the internal labor regulations, labor contracts;

conduct collective bargaining, as well as conclude a collective agreement in the manner prescribed by this Code;

provide employees' representatives with complete and reliable information necessary for concluding a collective agreement, agreement and monitoring their implementation;

to acquaint employees against signature with the adopted local regulations directly related to their labor activity;

timely fulfill the orders of the federal executive body authorized to exercise federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms, other federal executive bodies exercising state control (supervision) in the established area of \u200b\u200bactivity, pay fines imposed for violations of labor legislation and other regulatory legal acts containing labor law;

consider the submissions of the relevant trade union bodies, other representatives elected by the employees on the violations of labor legislation and other acts containing labor law norms, take measures to eliminate the identified violations and report on the measures taken to the indicated bodies and representatives;

create conditions that ensure the participation of employees in the management of the organization in the forms provided for by this Code, other federal laws and the collective agreement;

to provide for the household needs of employees related to the performance of their labor duties;

carry out compulsory social insurance of employees in the manner prescribed by federal laws;

compensate for harm caused to employees in connection with the performance of their labor duties, as well as compensate for moral harm in the manner and on the conditions established by this Code, other federal laws and other regulatory legal acts of the Russian Federation;

fulfill other obligations stipulated by labor legislation, including legislation on special assessment of working conditions, and other regulatory legal acts containing labor law norms, collective bargaining agreements, agreements, local regulations and labor contracts.

Commentary on Art. 22 of the Labor Code of the Russian Federation

1. Since an employment contract is always a bilateral agreement, the Labor Code establishes not only the labor rights and obligations of the employee, but also the corresponding obligations and rights of the employer in the labor sphere.

2. The Labor Code of the Russian Federation did not contain a separate article dedicated specifically to the rights and obligations of the employer in the labor sphere. Some of these rights and obligations were formulated in different articles of the Labor Code of the Russian Federation, but together, as in the Labor Code, these rights and obligations were not collected.

3. In Art. 22 Labor Code names seven groups of employers' rights.

4. One of the basic rights of an employer is to adopt local regulations containing labor law (see), to be a party to social partnership at its various levels (see commentary to Section II of the Labor Code).

5. The employer's right to conclude, amend and terminate employment contracts with employees is reflected both in the Labor Code (see the commentary to the relevant articles) and in other laws (for example, in relation to teachers - in the RF Law "On Education" // SZ RF. 1996. N 3. Art. 150).

6. The employer has the right to apply to the distinguished employees a wide variety of types of incentives (see), and, if necessary, bring employees to disciplinary and material liability in the manner established by the Labor Code, other laws (see the commentary to Section VIII, Chapter 39 of the Labor Code) ...

7. Along with the rights, the employer also has certain obligations that correspond to the rights of the employee.

8. One of the main responsibilities of the employer is to comply with laws and other regulations containing labor law, local regulations, collective bargaining agreements, agreements and labor contracts (see the commentary to the relevant articles of the Labor Code).

9. In case of failure to fulfill its obligations, the employer must promptly fulfill the instructions of the state supervisory and control bodies to eliminate the violations identified and pay the fines imposed for such violations (see).

10. The employer is also obliged to compensate for harm (including moral) caused by his illegal actions or inaction to employees in connection with the performance of their labor duties (see -).

11. The list of obligations of the employer, given in art. 22 of the Labor Code is not exhaustive: the employer is also obliged to fulfill other obligations provided for by the Labor Code, laws and other regulatory legal acts containing labor law norms, collective bargaining agreements, agreements, local regulations and labor contracts.

Second commentary on Article 22 of the Labor Code

1. Since an employment contract is a bilateral agreement, the legislator establishes the basic rights and obligations of not only the employee, but also the employer.

In the commented Art. 22 of the Labor Code of the Russian Federation formulates seven groups of employer rights.

One of the basic rights of an employer is the right to conclude, change and terminate employment contracts with employees in accordance with this Code and other federal laws.

The Code provides for a general procedure for concluding (see -), amendments (see -) and termination (see -) of an employment contract at the initiative of the employer (see the listed articles of the Code and comments to them).

The legislator provides for the specifics of concluding an employment contract when entering the state civil service.

3. The employer has the right to demand from employees that they perform their job duties in good faith, comply with the internal labor regulations of the organization, respect the property of the employer, including the property of third parties held by the employer, if the employer is responsible for the safety of this property, and other employees, compliance with the internal labor regulations.

The employer has the right to encourage employees who perform their labor duties in good faith, and to bring violators of labor discipline to disciplinary and material liability.

4. One of the important rights of an employer is to adopt local regulations within its competence. They are mandatory for employees of the organization. For example, internal labor regulations, regulations on bonuses, etc. This right is not possessed by employers - individuals who are not individual entrepreneurs.

5. Fundamental rights include the right to form and join associations of employers to represent and protect their interests. There is a wide range of employer rights. For example, collective bargaining on the preparation and implementation of laws and other normative legal acts, monitoring the implementation of collective contracts and agreements, facilitating the resolution of collective labor disputes, etc.

6. In addition to the rights, the commented article 22 of the Labor Code of Russia assigns to the employer a set of certain obligations.

In accordance with Part 2 of Art. 22 of the Code, the employer is obliged to comply with labor legislation, other regulatory legal acts, agreements, collective agreements, agreements, labor contracts, provide all employees with work stipulated by the employment contract, timely fulfill all instructions of state supervisory and control bodies, pay fines imposed for violations of laws, other regulatory legal acts containing labor law norms.

The employer is obliged to consider the submissions of the relevant trade union bodies, other representatives elected by the employees on the revealed violations of laws and other acts containing labor legislation, take measures to eliminate them and be sure to report the measures taken to the relevant bodies and representatives.

The employer is obliged to acquaint the employee, against signature, with the adopted local regulations directly related to his labor activity.

It is also important to point out that the employer must create conditions that ensure the participation of employees in the management of the organization.

In addition, in order for employees to fulfill their work duties, the employer is obliged to provide them with the necessary household items.

7. It should be noted that the employer is obliged to provide employees with equal pay for work of equal value. The consolidation of such a duty ensures the creation, first of all, of a fair system of remuneration. This principle is in line with international salary standards.

The employer is obliged to pay wages to employees within the time limits established by this Code, collective agreements, internal regulations and labor contracts.

8. The employer is obliged to compensate for the damage caused to the employee in connection with the performance of his labor duties, as well as compensate for the moral damage caused to the employee by the unlawful action or inaction of the employer (see.

1. Labor is free. Everyone has the right to freely dispose of their abilities for work, to choose their type of activity and profession.

2. Forced labor is prohibited.

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

4. The right to individual and collective labor disputes using the methods for resolving them established by federal law, including the right to strike, is recognized.

5. Everyone has the right to rest. A person working under an employment contract is guaranteed the duration of working hours, days off and holidays, and paid annual leave established by federal law.

Commentary on Article 37 of the Constitution of the Russian Federation

This article 37 proclaims those constitutional rights and freedoms, part of which every person has in Russia, regardless of his occupation, and partly only those individuals who work under an employment contract for a particular employer. The constitutional rights and freedoms listed in Art. 37, is not all the rights and freedoms that a person is endowed with in the world of work, but only the basic ones. Most human rights and freedoms in this area are included in the category of so-called socio-economic human rights, which do not belong to him from birth, but are acquired by entering into a legal relationship about the use of his abilities to work, for example, by concluding an employment contract.

A specific list of the socio-economic rights of a citizen is formed by each state independently, on an individual basis, on the basis of taking into account the maximum limits of its resources (part 1 of article 2 of the International Covenant on Economic, Social and Cultural Rights). In this sense, the volume of socio-economic rights of citizens of economically prosperous states usually exceeds the volume of similar rights in underdeveloped or developing countries.

At the same time, due to the requirements of international law, some socio-economic rights and human freedoms are placed on a par with civil and political rights, which means the need to ensure their equal accessibility and effective legal protection in all countries of the world community, regardless of their economic and financial resources (Article 2 of the International Covenant on Civil and Political Rights). These types of rights include:

a) the right to work, to free choice of work, to fair and favorable working conditions and to protection from unemployment;

b) the right to equal pay for equal work without any discrimination;

c) the right to just and satisfactory remuneration, ensuring an existence worthy of a person for himself and his family, and supplemented, if necessary, by other means of social security;

d) the right to create trade unions and enter trade unions to protect their interests;

e) the right to rest and leisure, including the right to reasonable limitation of working hours and paid periodic leave (Articles 23 and 24 of the Universal Declaration of Human Rights of 1948).

All these rights, as well as human freedoms in the labor sphere, are reflected in the commented article 37 of the Constitution of Russia.

1. Among the first hours. 1 of Art. 37 calls the freedom of labor, which should be considered as a universal constitutional and legal principle applicable to all types of law-abiding work activities of a person. Labor activity in this case means any kind or type of occupation of a person, involving the use and use of his physical and (or) intellectual abilities, knowledge and skills both on a reimbursable and free basis, both in episodic and periodic or in a systematic manner, both on the basis of an employment contract, and on the basis of any other legal organizational form of attracting people to work allowed by law. Regardless of the type of use of their abilities to work, everyone has the right to dispose of them freely, and mainly in order to satisfy their personal interests and needs in any place of residence they choose (see).

The freedom of labor proclaimed by the Constitution refers to those social and economic phenomena that must be present in a market economy for its normal functioning and progressive development. Therefore, freedom of labor must be considered as the fundamental principle of a market economy, which is the only possible appropriate economic foundation for the effective functioning of a democratic rule of law, which the Russian Federation should be in force. In connection with the fundamental role of this principle in modern Russia, it is appropriate to recall that in the conditions of the non-market state-planned economy, on which the Soviet Union was based, another principle is required as the main principle - the universality of labor, which implies the imposition of a constitutional obligation on every able-bodied person to work and application of measures of legal responsibility to all persons who do not fulfill this obligation. The implementation of this principle in practice is always associated with the use of forced labor.

Another important principle, on which the market economy is also based, is the freedom to use one's abilities and property for entrepreneurial and other economic activities not prohibited by law (see). As a rule, in the course of carrying out this activity, hired labor is used, the due basis for which in a democratic and legal state is a freely and voluntarily concluded contract. It follows that the legal expression of the constitutional principles of freedom of labor and freedom of economic activity is the principle of freedom of contract, which, having a constitutional and universal character, is of decisive importance for the scope and use of any type of labor activity, including those carried out on the basis of an employment contract. In the latter case, this principle is transformed into the principle of freedom of the labor contract.

However, it should be noted that the wording of this principle is not reproduced in Art. 2 of the Labor Code among the basic principles of legal regulation of labor relations and other relations directly related to them. This circumstance, of course, does not mean that the principle of freedom of an employment contract does not apply in the sphere of relations regulated by the norms of the branch of labor law. It undoubtedly acts in this area, but with certain restrictions, the presence of which, in particular, is clearly evidenced by the content of the norms of Russian labor legislation governing the conclusion, amendment and termination of an employment contract at the initiative of the employer.

The essence of these restrictions is narrowing the possibilities of the employer, as one of the parties to the employment contract, to build their relationship with the employee, as the other party to this contract, solely on the basis of equality, freedom and harmonization of will (see Resolution of the Constitutional Court of the Russian Federation of 06.06.2000 N 9-P * (467)). In reality, the Russian employer does not have free will neither when concluding, nor when changing, and even more so when terminating an employment contract. This is confirmed by the fact that the right of the employer to terminate the employment contract with his employee is linked to a greater extent by the norms of labor legislation not with the will of the employer, but with the actual presence of certain circumstances combined into an exhaustive list that are qualified by these rules as specific grounds for terminating the employment contract at the initiative of the employer ( Article 81 of the Labor Code).

Thus, it can be stated that in the conditions of today's Russian legal reality, the operation of the principle of freedom of an employment contract, the content of which should be the freedom of expression of the will of its parties to conclude, amend or terminate this contract, is significantly limited, at least for the employer. This circumstance raises the question of the constitutionality of such restrictions. Since, by virtue of any restrictions on rights and freedoms should be exercised only to the extent necessary in order to protect the foundations of the constitutional order, the rights and legitimate interests of others (see commentary to Article 55), to the extent that restriction of the economic freedom of the employer is not caused by these goals, in principle, should not take place. However, if, in contradiction with this requirement, it still exists, then this may indicate that the restriction of his rights and freedoms is unreasonable or disproportionate, which, in turn, creates the basis for the recognition of the normative provisions of the relevant legal norms as unconstitutional. The Constitutional Court of the Russian Federation has made such decisions more than once (see: Resolutions of 01.24.2002 N 3-P, of 03.15.2005 N 3-P; Definition of 01.16.2007 N 160-O * (468)).

It should be noted that these decisions introduced a new tendency towards expanding the freedom of an employment contract in the legal regulation of labor and relations directly related to them, which, by the way, is really necessary in the market economy to give this regulation the necessary flexibility. It is highly desirable that the same tendency be evident in the activities of the domestic legislator, who would also benefit from realizing that in economically prosperous countries the flexibility of the contractual regulation of labor relations, sanctioned by law, is recognized as one of the most important conditions that directly determine the efficiency and competitiveness of the national economy.

2. Inherent in everyone, by virtue of part 1 of the commented article 37 of the CRF, freedom of labor implies not only the possibility of a person's choice of the type of labor activity, the organizational and legal form of using his abilities to work and the place of application of this labor, but also the possibility of refusing to perform any -or labor in general. However, such a variant of behavior of a particular person should not entail any negative consequences for him in modern Russian conditions, since in accordance with Part 2 of Art. 37 forced labor is prohibited in our country. In this sense, this prohibition should be considered as a constitutional guarantee of freedom of labor.

It should be noted that the prohibition of forced labor is one of the fundamental principles of not only Russian, but also international law. In particular, it is enshrined in the International Covenant on Civil and Political Rights (paragraph 3 of article 8), the Convention for the Protection of Human Rights and Fundamental Freedoms (paragraph 2 of article 4) and the Declaration on Fundamental Principles and Rights at Work and the Mechanism its implementation, which was adopted by the International Labor Conference (ICL) in 1998. As the main principle of legal regulation of labor relations and other related relations, this prohibition is also reproduced in the sectoral Russian legislation, presented now by the Law of the Russian Federation of 19.04.1991 N 1032- 1 "On employment of the population in the Russian Federation" (as amended on 18.10.2007) and TC. At the same time, the Labor Code not only ranks this principle among the basic principles of legal regulation of labor and relations directly related to them (Article 2), but also devotes a separate Article to its legal regulation. 4 "Prohibition of Forced Labor". Such isolation of the legislative regulation of this principle in a separate article should be regarded as an indicator of its special significance, which the Russian legislator considered necessary to emphasize once again in this way.

It should also be noted that the most detailed legal regulation of the prohibition of forced labor is contained not in the Labor Code, but in acts of international labor law, which include two conventions of the International Labor Organization (ILO): 1930 Convention No. 29 "On Forced Labor or compulsory labor "and the 1957 Convention No. 105" On the Abolition of Forced Labor ". Both conventions have been ratified by Russia.

Within the framework of the Russian legal system, the most detailed definition of forced labor is given in Part 2 of Art. 4 TC. It is almost entirely based on the wording given in paragraph 1 of Art. 2 of ILO Convention No. 29, which states that the term "forced or compulsory labor" means any work or service demanded from a person under the threat of any punishment for which that person has not voluntarily offered his services. At the same time, it should be noted that there are certain differences in the characteristics of forced labor under international and Russian labor law. So, in contrast to the definition given by the Labor Code, Convention No. 29, both in its name and in its content, speaks not only of forced, but also of compulsory labor. However, this Convention does not attach any independent meaning to the term "compulsory labor" in comparison with the term "forced labor", by virtue of which these terms should be considered as synonyms. By the way, based on this, we can conclude that the use of only one term "forced labor" by Russian legislation is legitimate.

At the same time, it makes sense to draw attention to the fact that the characteristic of forced, or compulsory, labor, presented by Convention No. 29, contains two signs, which include: a) the threat of punishment for failure to perform the required work or service and b) the absence of a voluntary offer an employee of their services to perform that work or service. In turn, the Labor Code is limited in the description of forced labor by indicating only one feature, which is the threat of the use of any punishment (violent influence) for failure to perform the required work. However, this circumstance, probably, should not be considered as a violation by the domestic legislator of the provisions of Convention No. 29, it is just necessary to proceed from the fact that in this case he took a more stringent approach to qualifying specific labor as forced. If, according to the norms of international labor law, this requires the simultaneous presence of two signs, then according to Russian legislation, one is enough in the form of a threat of the use of some kind of punishment (violent influence).

In the event of his involvement in forced labor, everyone has the right to refuse to fulfill it, including in connection with a violation of the established deadlines for the payment of wages or payment of it not in full, as well as in connection with the emergence of an immediate threat to the life and health of the employee due to violation of labor protection requirements and, in particular, through its failure to provide means of collective or individual protection in accordance with the established norms (part 3 of article 4 of the Labor Code).

Certain types of work required of a worker bear similarities to forced labor, and yet they are not recognized as a form of it. The list of such works is contained in Part 4 of Art. 4 TC. In general, it is consistent with a similar list contained in Art. 2 of the ILO Convention No. 29. However, it should be borne in mind that the list given in the Convention is somewhat wider than that given in Art. 4 of the Labor Code, since, in comparison with it, it additionally includes: a) any work or service that is part of the usual civic obligations of citizens of a fully self-governing country; b) minor works of a community character, i.e. work performed for the direct benefit of the collective by members of the collective and which therefore can be considered the normal civic obligations of the members of the collective, provided that the population itself or its direct representatives have the right to express their opinion on the appropriateness of these works.

Despite the fact that our legislator refused to reproduce in the Labor Code the wording of these exceptions from the types of forced labor, they have legal force in relation to our country, which follows from the fact of ratification of the said Convention. This allows us not to consider the traditional for our country all kinds of "subbotniks" and "resurrection days" as forced labor, of course, subject to the voluntary participation of citizens in their conduct. This also implies the conclusion that forced labor should not be recognized as those works that are performed for the direct benefit of the collective by members of this collective for the improvement and sanitary and hygienic prevention of buildings and territories occupied, for example, by schools, boarding schools, children's and youth health camps, as well as institutions in charge of the execution of administrative and criminal penalties, provided that representatives of these groups are given the right to express their opinion on the advisability of carrying out such work (see Definition of the Constitutional Court of the Russian Federation of 03.24.2005 N 152-О).

3. For the overwhelming majority of representatives of modern civilization, labor is the main source of existence. By virtue of this, every person capable of working should have the right to work, and such a right is indeed granted to him by Art. 23 of the Universal Declaration of Human Rights, and the citizens of our country also part 3 of Art. 37 of the Constitution. The possession of the constitutional right to work provides everyone with the opportunity to earn a living in work that he freely chooses or to which he freely agrees (Article 6 of the Covenant on Economic, Social and Cultural Rights). In turn, the implementation of this right allows everyone to satisfy the constantly existing need to create material prerequisites for their normal existence and all-round development through earned funds.

The legal content of the right to work forms a number of powers, the implementation of which provides a person with the opportunity to choose a type of labor activity, profession or specialty, to determine the place of application of his labor both within and outside the Russian Federation and to choose a counterparty under an employment contract (an individual or legal entity, state or municipal authority, etc.).

In a market economy, the right to work is not subjective in the sense that it is not supplemented by someone's obligation to provide each specific person with the work he desires. This conclusion is also confirmed by the Constitutional Court, which, in one of the legal positions it formulated, noted that the right to freely dispose of one's abilities for work, to choose an occupation and profession does not imply the obligation of the state to ensure the occupation of a particular position by a citizen (see Determination of December 21, 2000 N 252 -O * (469)).

At the same time, the right of a citizen to work is under the special protection of the state, which is manifested, on the one hand, in providing every working person with working conditions that meet the requirements of safety and hygiene, payment of remuneration for work without any discrimination and not lower than established by federal law. the minimum wage, labor protection and employment promotion, and on the other, in providing various support measures to persons who have lost their jobs and earnings. It follows that the Constitution grants everyone not only the right to earn a living in work that he freely chooses or to which he freely agrees, but also the opportunity to exercise this right in conditions that meet the requirements of safety and hygiene.

The most detailed description of the content of modern legal norms governing labor protection relations for workers can be obtained on the basis of an analysis of the content of the articles of the Labor Code, placed in section. X "Labor protection". In accordance with Art. 209 labor protection is defined as a system of preserving the life and health of workers in the process of work, which includes legal, socio-economic, organizational and technical, sanitary and hygienic, treatment and prophylactic, rehabilitation and other measures. The need to carry out all these activities is imposed, mainly as specific responsibilities, on each employer (Article 212 of the Labor Code). The Labor Code also provides each employee with opportunities to protect their right to work in an environment that meets state labor protection regulations. For this purpose, all employees are endowed with a number of rights in the field of labor protection (Article 219). By establishing state regulatory requirements for labor protection of employees, the Russian state at the same time contributes to ensuring labor safety for their life and health.

The natural right of everyone who uses his labor force on a contractual basis in the interests of another person is the right to remuneration for work. In a market economy, the specific amount of this remuneration is determined primarily by the agreement of the parties to the employment contract. However, it is generally known that their economic interests, as a rule, do not coincide, since the employer is interested in reducing his expenses for the employee's wages, and the employee - in increasing the amount of remuneration for his labor. Practice shows that the resolution of this conflict of interest is carried out, as a rule, from the position of the strength of the employer, who has an economic advantage, which he uses to minimize wages of workers, who are often forced to agree to low-paid work due to the reality of the prospect of being left without any paid work. Given this circumstance, part 3 of Art. 37 specifies the right of everyone to remuneration for work by prohibiting any discrimination in the remuneration of workers and the obligation of the employer to pay for this work at a level not lower than the statutory minimum wage. Such a prohibition is intended to promote the establishment of principles of fairness in wage relations.

Labor of different value, of course, should be paid differently. Due to this, the current legislation allows differentiation in the payment of various types of labor. This differentiation is also permissible in remuneration of one type of labor, but only depending on the qualifications of workers, as well as the complexity, quantity, quality and conditions of the work they perform (part 1 of article 129 of the Labor Code). In addition, the establishment of differences, exceptions, preferences, as well as the restriction of the rights of workers, which are determined by the requirements inherent in this type of work, established by federal law, or are due to the special care of the state for persons in need of increased social and legal protection (Part 3 Article 3 of the Labor Code).

At the same time, it should be recognized as discrimination in wages, its differentiation carried out on any of the grounds indicated, along with, in part 2 of Art. 3 TC. All the grounds of discrimination listed in this article of the Labor Code have one common feature - the absence of this or that circumstance, which became the basis for the differentiation of remuneration, of connection with the professional qualities of the employee or with the objective characteristics of his work. By virtue of this, the urgency or indefiniteness of the labor contract concluded with them cannot serve as a basis for a legitimate differentiation in the remuneration of employees (see Definition of the RF Constitutional Court dated 06.03.2001 N 52-О), the loyalty of employees in relation to the authorities or representatives of the employer, participation or non-participation in labor disputes, strikes and other similar circumstances, qualities or properties of a person that discriminate against him in the field of remuneration for work.

With regard to the work of persons working under an employment contract, the constitutional right to remuneration for work is supplemented by the Labor Code with the principle of payment to everyone timely and in full a fair wage, ensuring a decent human existence for himself and his family and not lower than the minimum wage established by federal law (paragraph 7, article 2). The practical implementation of this principle can mean only one thing - in the Russian Federation, as a social state, it is necessary to provide every conscientious and efficient working person with the opportunity to receive such remuneration for work, which would not only be less than the subsistence minimum prevailing in the country, but also exceed it as much as this is necessary to ensure a decent existence for both the working person himself and his family. By the way, it is precisely this content that the international community invests in the right to work, which belongs to everyone by virtue of the Universal Declaration of Human Rights (paragraph 3 of Article 23) and the International Covenant on Economic, Social and Cultural Rights (Article 7). However, despite the fact that these international legal acts are an integral part of the legal system of Russia (see commentary to Article 15), modern Russian legislation today establishes such a minimum wage that does not even reach the subsistence level.

As one of the most important constitutional rights, Part 3 of Art. 37 of the Constitution states the right of everyone to protection from unemployment. Unemployment deprives a person of the opportunity to exercise his right to work and thereby ensure a decent existence for himself and his family. For this reason, each state should strive to ensure the most complete and productive employment of the population, which is, in particular, the aim of the ILO Convention No. 122 of 1964 "On Employment Policy" and the ILO Convention No. 168 of 1988 "On the promotion of employment and protection from unemployment "* (470), which consider the promotion of full, productive and freely chosen employment as a primary task and an integral part of the economic and social policy of the state. Unfortunately, none of these conventions has been ratified by our state. Therefore, in terms of determining his current intentions in the field of protection against unemployment, one should refer to the Law of the Russian Federation "On employment of the population in the Russian Federation", which determines the state policy in this area. As follows from the content of Art. 5 of this Law, the Russian state is not yet aimed at ensuring the most complete and productive employment in relation to every citizen of Russia, therefore, it is limited in the relevant area of \u200b\u200bpublic relations by pursuing a policy of promoting the realization of citizens' rights to full, productive and freely chosen employment. This policy, in particular, is aimed at: ensuring equal opportunities for all citizens of the Russian Federation in exercising the right to voluntary work and free choice of employment; creation of conditions for a dignified life and free human development; support for the labor and entrepreneurial initiative of citizens, carried out within the framework of the rule of law, promoting the development of their abilities for productive, creative work; implementation of measures to promote the employment of citizens experiencing difficulties in finding work (disabled, minors, etc.).

In accordance with this policy, the state guarantees every citizen of the Russian Federation protection from unemployment through the provision of various measures of social support, which include: payment of unemployment benefits, including during the period of temporary disability of the unemployed; payment of a scholarship during the period of professional training, advanced training, retraining in the direction of the employment service, including during the period of temporary disability; the opportunity to participate in paid public works (Articles 12 and 28 of the Law of the Russian Federation "On Employment of the Population in the Russian Federation").

4. Part 4 of the commented art. 37 of the Constitution of the Russian Federation recognizes that everyone has the right to individual and collective labor disputes using the methods of resolving them established by federal law, including the right to strike. The right to initiate an individual or collective labor dispute belongs only to those who work on the basis of an employment contract. For this reason, a detailed description of the implementation of this right is contained in the Labor Code, which devoted Ch. 60 "Consideration and resolution of labor disputes" and Ch. 61 "Consideration and resolution of collective labor disputes".

A personally identified employee who believes that his labor rights have been violated by the employer has the right to appeal to the individual dispute resolution bodies. Individual labor disputes are considered by labor dispute commissions, justices of the peace and courts (Article 382 of the Labor Code of the Russian Federation). The Labor Dispute Commission is not an obligatory instance for considering individual labor disputes, therefore, the employee has the right to apply directly to the magistrate or to the court, bypassing this commission.

Unlike individual labor disputes, resolved in a jurisdictional manner, collective labor disputes are considered and settled by the disputing parties themselves within the framework of conciliation procedures carried out with the participation of a conciliation commission, mediator and (or) labor arbitration (parts 1 and 2 of article 398 of the Labor Code) ... Only workers represented by trade unions, their representative bodies or other representatives of workers employed by a particular employer and elected at a general meeting or conference of workers are vested with the right to put forward claims that serve as the basis for initiating a collective labor dispute (part 1 of article 399, article 31 TC).

A strike, as a temporary voluntary refusal of employees to perform their labor duties, is one of the ways to resolve collective labor disputes, which, as a last resort, is applicable only at the initiative of employees in cases where conciliation procedures did not lead to the resolution of the collective labor dispute, or when the employer or the employer's representatives evade participation in conciliation procedures, do not fulfill the agreement reached in the course of resolving the labor dispute or do not comply with the binding decision of the labor arbitration (part 2 of article 409 of the Labor Code).

The decision to declare a strike is made by a general meeting (conference) of employees of an organization (branch, representative office or other separate structural unit), an individual entrepreneur at the suggestion of a representative body of employees, previously authorized by him to resolve a collective labor dispute (part 1 of article 410 of the Labor Code).

In accordance with Art. 455 TC are illegal and strikes are not allowed:

a) during periods of martial law or a state of emergency or special measures in accordance with the legislation on a state of emergency; in the bodies and organizations of the Armed Forces of the Russian Federation, other military, paramilitary and other formations, organizations (branches, representative offices or other separate structural divisions) directly in charge of ensuring the country's defense, state security, emergency rescue, search and rescue, fire-fighting, warning or liquidation of natural disasters and emergencies; in law enforcement agencies; organizations (branches, representative offices or other separate structural subdivisions) directly serving especially dangerous types of industries or equipment, at ambulance and emergency stations;

b) in organizations (branches, representative offices or other separate structural divisions) directly related to ensuring the life of the population (energy supply, heating and heat supply, water supply, gas supply, aviation, railway and water transport, communications, hospitals), in the event that carrying out strikes pose a threat to the defense of the country or the security of the state, the life and health of people.

Since labor legislation is attributed to the subjects of joint jurisdiction of the Russian Federation and its constituent entities, the constituent entities of the Federation have the right to adopt laws and other regulatory legal acts, which may introduce longer periods of rest compared to those provided for by federal legislation. Specific employers, who have the right to adopt relevant local regulations in this regard, have the same authority in relation to increasing the duration of rest of their employees.

New edition of Art. 22 of the Labor Code of the Russian Federation

The employer has the right:

conclude, modify and terminate employment contracts with employees in the manner and on the terms established by this Code, other federal laws;

to conduct collective bargaining and conclude collective agreements;

to encourage employees for conscientious and effective work;

to attract employees to disciplinary and material liability in the manner prescribed by this Code, other federal laws;

adopt local regulations (with the exception of employers who are individuals who are not individual entrepreneurs);

create associations of employers in order to represent and protect their interests and join them;

create a works council (with the exception of employers - individuals who are not individual entrepreneurs) - an advisory body formed on a voluntary basis from among the employees of this employer, who, as a rule, have achievements in work, to prepare proposals for improving production activities, individual production processes , introduction of new equipment and new technologies, increasing labor productivity and qualifications of workers. The powers, composition, procedure for the work of the works council and its interaction with the employer are established by a local regulatory act. The powers of the works council cannot include issues the solution of which, in accordance with federal laws, is attributed to the exclusive competence of the management bodies of the organization, as well as issues of representation and protection of social and labor rights and interests of employees, the solution of which in accordance with this Code and other federal laws is assigned to the competence of trade unions, the relevant primary trade union organizations, other representatives of workers. The employer is obliged to inform the works council about the results of consideration of proposals received from the works council and about their implementation;

to exercise the rights granted to him by legislation on the special assessment of working conditions.

The employer is obliged:

comply with labor legislation and other regulatory legal acts containing labor law norms, local regulations, collective bargaining agreements, agreements and labor contracts;

provide employees with work stipulated by the employment contract;

to ensure the safety and working conditions that meet the state regulatory requirements for labor protection;

provide employees with equipment, tools, technical documentation and other means necessary for the performance of their labor duties;

provide employees with equal pay for work of equal value;

pay in full the wages due to employees within the timeframes established in accordance with this Code, the collective agreement, the internal labor regulations, labor contracts;

conduct collective bargaining, as well as conclude a collective agreement in the manner prescribed by this Code;

provide employees' representatives with complete and reliable information necessary for concluding a collective agreement, agreement and monitoring their implementation;

to acquaint employees against signature with the adopted local regulations directly related to their labor activity;

create conditions that ensure the participation of employees in the management of the organization in the forms provided for by this Code, other federal laws and the collective agreement;

to provide for the household needs of employees related to the performance of their labor duties;

carry out compulsory social insurance of employees in the manner prescribed by federal laws;

Commentary on Article 22 of the Labor Code of the Russian Federation

While article 21 of the Labor Code of the Russian Federation has remained practically unchanged for a long time, article 22 of the Labor Code by Federal Law No. 90-FZ has undergone significant adjustments.

In accordance with the current wording of this article, the employer is given the right to demand that employees respect not only the property of the employer, but also the property of third parties held by the employer for safekeeping (in use). In addition, the employer is obliged to familiarize employees against signature with the adopted local regulations directly related to their work.

Another commentary on Art. 22 of the Labor Code of the Russian Federation

1. The employer, as the subject of labor and directly related legal relations, acts in them as the bearer of certain rights and obligations, which, like the rights and obligations of the employee, have a statutory and contractual nature. The statutory list of the rights and obligations of the employer, enshrined in the text of Art. 22, is of an imperative nature, the purpose of which is to establish the general boundaries of the employer's organizational and managerial power over its employees. Within the limits of this power, the employer as a subject of relations on the organization of labor and labor management is granted the rights:

a) encourage employees for conscientious, effective work (see Art. 191 of the Labor Code of the Russian Federation and a commentary to it);

b) require employees to fulfill their labor duties and to respect their property and the property of other employees;

c) to bring employees to disciplinary and material liability in the manner established by the Labor Code of the Russian Federation and other federal laws (see Art. 193 of the Labor Code of the Russian Federation and the commentary to it);

d) adopt local regulations (see Art. 8 of the Labor Code of the Russian Federation and a commentary to it).

As the subject of employment and labor relations, the employer is granted the right to conclude, amend and terminate employment contracts with employees in the manner and on the terms established by the Labor Code of the Russian Federation and other federal laws. It should be noted that these rights of the employer do not give him freedom to conclude, change and terminate employment contracts with employees. On the contrary, the legislation actually limits this freedom, in particular, by establishing prohibitions for the employer on the unjustified refusal of the employed person to conclude an employment contract (see Art.64 of the Labor Code of the Russian Federation and the commentary to it) and the requirement from the employee to perform work not stipulated by the employment contract ( see article 60 of the Labor Code of the Russian Federation and the commentary to it). In addition, the transfer to another permanent job can be carried out by the employer only with the consent of the employee (see Article 72 of the Labor Code of the Russian Federation and the commentary to it), and termination of the employment contract with the employee on the initiative of the employer can take place only on the grounds provided for by law ().

As the subject of social partnership relations, the employer is granted the right to conduct collective bargaining and to conclude collective agreements, and to represent and protect his interests - the right to create associations of employers and join them.

The total number of statutory rights granted to the employer is noticeably less than the rights given to the employee (see Article 21 of the Labor Code of the Russian Federation and the commentary to it). This is due to the fact that the employer, as a rule, has sufficient economic and organizational and managerial capabilities to independently satisfy his interests in relations with employees and, therefore, does not feel a special need to formalize his rights with the help of the law. As for the employees, they just need the statutory labor rights guaranteed by the law, to a certain extent protecting them from the employer's abuse of their economic, organizational and managerial power.

2. In turn, the list of statutory duties of the employer is wider than the list of duties of the employee. This is explained by the fact that most of the employer's obligations are the reverse side of the employee's rights. In this sense, the purpose of the employer's duties is to provide employees with additional guarantees for the implementation of their statutory rights.

Failure by employers to fulfill their duties entails criminal, administrative, material and disciplinary liability for them or their representatives (see Articles 234 - 237, 419 of the Labor Code of the Russian Federation and the commentary to them).

Labor legislation in Russia prohibits discrimination against employees on the basis of remuneration and obliges the employer to ensure equal pay for work of equal value. At the same time, wages are a subtle instrument for regulating labor relations. For example, if the organization employs several accountants and their staffing table and employment contracts indicate different salaries or "fork" of salaries (range from minimum to maximum size). Is this a violation of labor laws? Of course it is, since Art. 22 of the Labor Code of the Russian Federation for the employer is provided for the obligation to provide employees with equal pay for work of equal value. But what if the accountants have a different amount of work or different areas?

What does the salary consist of?

According to Art. 129 of the Labor Code of the Russian Federation, wages (employee remuneration) consists of three parts:

1. Remuneration for work, depending on the qualifications of the employee, complexity, quantity, quality and conditions of the work performed, the so-called fixed / constant part (salary, tariff rate, etc.).

2. Compensatory payments, that is, additional payments and allowances of a compensatory nature, including for work in conditions deviating from normal, work in special climatic conditions and in territories exposed to radioactive contamination, as well as other compensatory payments.

3. Incentive payments developed in a specific organization, namely:

surcharges and allowances;
bonuses and other incentive payments.

What does “work of equal value” mean?

In Art. 2, 3 of the Labor Code of the Russian Federation reveals the content of the principle of prohibition of discrimination, and in Art. 64 of the Labor Code of the Russian Federation formulated prohibitions on discrimination in hiring, including wages.

The labor contract of each employee must include mandatory conditions (Article 57 of the Labor Code of the Russian Federation), including:

labor function;
terms of remuneration, including the size of the wage rate or salary (official salary) of the employee;
additional payments;
allowances;
incentive payments.

In this case, “work of equal value” means that workers perform the same functions and the same amount of work.

Labor function is work according to the position in accordance with the staffing table, profession, specialty, specified qualification; the specific type of work assigned to the employee. Consequently, the staffing table should indicate, for example, as follows: position - "accountant", the number of staff units - "5", the tariff rate (salary) - 40,000 rubles. If these conditions are met, the principle of equal pay for work of equal value is respected.

As for the volume of work, it can be calculated:

by time of execution (time-based payment);
by the number of products (piece rate);
by the amount of goods or services sold (commission);
by the result of labor / finished product (lump-sum payment).

If the working hours are different from the working hours of other workers performing the same functions (for example, overtime or work on weekends), then the wages will differ.

View responsibility	Act	Type of punishment	Document
Material	Pay discrimination	The employer is obliged to pay the employee an amount with the payment of interest (monetary compensation) in the amount of not less than 1/150 of the current key rate of the Central Bank of the Russian Federation of the amounts not paid on time for each day of delay, starting from the next day after the due date of payment, to the day of actual settlement, inclusive	Art. 236 of the Labor Code of the Russian Federation
Material	Pay discrimination	The employee is reimbursed in monetary form for moral damage caused by the unlawful actions or inaction of the employer	Art. 237 of the Labor Code of the Russian Federation
Administrative	Failure to pay or incomplete payment of wages, other payments within the framework of labor relations, if these actions do not contain a criminal offense, or the establishment of wages in an amount less than the amount provided for by labor legislation	Warning or imposition of an administrative fine on officials - from 10,000 to 20,000 rubles; for persons engaged in entrepreneurial activity without forming a legal entity - from 1,000 to 5,000 rubles; for legal entities - from 30,000 to 50,000 rubles.	h. 6 art. 5.27 Administrative Code of the Russian Federation
Administrative	Committing an administrative offense under Part 6 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, by a person previously subjected to administrative punishment for a similar offense, if these actions do not contain a criminal offense	Imposition of an administrative fine on officials - from 20,000 to 30,000 rubles. or disqualification for a period of 1 to 3 years; for persons engaged in entrepreneurial activities without forming a legal entity - from 10,000 to 30,000 rubles; for legal entities - from 50,000 to 100,000 rubles.	h. 7 art. 5.27 Administrative Code of the Russian Federation
Criminal	Partial non-payment of wages, pensions, scholarships, benefits and other statutory payments for more than three months, made out of selfish or other personal interest of the head of the organization, the employer	Fine up to 120,000 rubles. or in the amount of salary or other income of the convicted person for a period of up to 1 year, or deprivation of the right to hold certain positions or engage in certain activities for up to 1 year, or forced labor for up to 2 years, or imprisonment for up to 1 year	h. 1 tbsp. 145.1 RF Criminal Code
	Failure to pay wages, pensions, scholarships, allowances and other statutory payments for more than two months, or payment of wages for more than two months in an amount lower than the minimum wage established by law, committed out of selfish or other personal interest of the employer	The fine is from 100,000 to 500,000 rubles. or in the amount of the salary, or other income of the convict for a period of up to 3 years, or forced labor for up to 3 years with the deprivation of the right to hold certain positions, engage in certain activities for up to 3 years or without it	h. 2 tbsp. 145.1 of the Criminal Code of the Russian Federation
	Acts under Part 1, 2, Art. 145.1 of the Criminal Code of the Russian Federation, if they entailed serious consequences	A fine from 200,000 to 500,000 rubles. or in the amount of the salary, or other income of the convicted person for a period from 1 to 3 years, or imprisonment for a term of 2 to 5 years with the deprivation of the right to hold certain positions or engage in certain activities	h. 3 tbsp. 145.1 of the Criminal Code of the Russian Federation

Example

The employee appealed to the Beloretsk Interdistrict Court of the Republic of Bashkortostan with a claim against LLC Bashkirenergo for the recovery of wages and recognition of the conditions of remuneration as discriminatory, referring to the fact that he worked as an electrician of the operational field brigade at the Beloretsk group of substations and faced gross violations of labor legislation on the part of Bashkirenergo LLC regarding the distribution of wages, which it regards as discriminatory measures against employees.

Thus, employees of the same subdivision of Bashkirenergo LLC, performing the same production tasks and servicing facilities in the city of Beloretsk and Beloretsk district, due to different rates of wages received wages that were different from those who work in the area of \u200b\u200bMezhgorye. At the same time, workers serving the facilities of Beloretsk and Mezhgorye had the same job descriptions, the same qualifications, requirements for work performance and a single collective agreement signed by employees of the same head unit represented by the OPS of the Substation Department (PO BCES), and received various wages.

From the presented comparative table on remuneration, it is clear that the volume and complexity of the work performed by an electrician of the operational-field brigade of the Beloretsk group of substations is greater than that of a specialist of the same position of the brigade of the Tatlin group of substations (where the plaintiff works).

The court considered that the plaintiff confuses concepts such as "differentiation" and "discrimination" in wages, since discrimination is not the establishment of differences, exceptions, preferences, as well as restrictions on the rights of an employee, which are determined by the requirements inherent in this type of work established by federal law ( h. 3, article 3 of the Labor Code of the Russian Federation). As a result, the plaintiff was denied the claim (Decision of the Beloretsk Interdistrict Court of the Republic of Bashkortostan in case No. 2-2632 / 2017 dated 06.12.2017).

A comment

Despite the fact that employees have the same job descriptions, the same qualifications and requirements for the performance of work, the employer made different wages, since the employees have a different volume and complexity of the work performed. Wages will also differ in the case when the working hours of a particular employee differ from the working hours of other employees performing the same functions (for example, overtime or work on a day off).

What liability is provided for violation of labor remuneration requirements?

Violation of legislation in the field of remuneration provides for three types of liability (Table 1).

Situation

A representative of Darasunsky Rudnik LLC appealed to the court with an appeal against the decision of the Tungokochensky District Court of the Trans-Baikal Territory dated July 3, 2017, since the court ruled in favor of the employee and ordered to recover from Darasunsky Rudnik LLC:

In favor of the plaintiff, the unaccounted and unpaid wages for the period from 01.10.2016 to 30.04.2017 in the amount of 92,169.25 rubles;

Compensation for moral damage in the amount of 5,000 rubles;

State duty to the local budget in the amount of 3,265.08 rubles.

Such measures were taken due to the fact that the size of the employee's wages was unjustifiably reduced due to the application of the low participation rate (KTU) to the accrued wages, and not to the variable part of wages, as provided for by the Regulation on remuneration and bonuses Darasunsky mine LLC.

The decision of the Tungokochensky District Court of the Trans-Baikal Territory of July 3, 2017 was left unchanged, the appeal was dismissed (Appeal ruling of the Trans-Baikal Regional Court in case No. 33-6261 / 2017 of 12/06/2017).

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