Consideration of collective labor disputes by labor arbitration. Dispute consideration in labor arbitration Formation of labor arbitration
Labor arbitration is a body for the consideration of collective labor disputes. Temporary labor arbitration is created by the parties to a collective labor dispute together with the relevant government agency on the settlement of collective labor disputes to consider this collective labor dispute. By decision of the relevant tripartite commission for the regulation of social and labor relations, a permanent labor arbitration may be created under it to consider and resolve collective labor disputes submitted to it for consideration by agreement of the parties.
No later than the next working day after the day of drawing up a protocol of disagreements upon completion of consideration of a collective labor dispute with the participation of a mediator, or after the expiration of the period during which the parties to a collective labor dispute must reach an agreement regarding the candidacy of a mediator, or after drawing up a protocol on the refusal of the parties or one of the parties collective labor dispute from consideration of a collective labor dispute with the participation of a mediator, the parties to a collective labor dispute are obliged to negotiate on the consideration of a collective labor dispute in labor arbitration.
If the parties to a collective labor dispute agree to consider the collective labor dispute in labor arbitration, they conclude a corresponding agreement containing a condition on the parties’ mandatory compliance with the decisions of the labor arbitration, after which the parties to the collective labor dispute are obliged to resolve the collective labor dispute at the local level social partnership within up to two working days, and when resolving a collective labor dispute at other levels of social partnership, within up to four working days, create, together with the relevant state body for the settlement of collective labor disputes, a temporary labor arbitration to consider this collective labor dispute or submit it for consideration to a permanent labor arbitration established under the relevant tripartite commission for the regulation of social and labor relations.
The composition and rules of temporary labor arbitration are established by a decision of the employer (representative of employers), representative of employees and the state body for the settlement of collective labor disputes. In a permanent labor arbitration, the procedure for forming a labor arbitration panel to resolve a specific labor dispute and its regulations are determined by the regulations on the permanent labor arbitration (the charter of the permanent labor arbitration), approved by the relevant tripartite commission for regulating social and labor relations. Federal authority The executive branch, which carries out the functions of developing state policy and legal regulation in the field of labor, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations, can approve a standard provision on permanent labor arbitration (model charter of permanent labor arbitration).
A collective labor dispute is considered in labor arbitration with the participation of representatives of the parties to the dispute when resolving a collective labor dispute at the local level of social partnership within up to three working days, and when resolving a collective labor dispute at other levels of social partnership - within up to five working days from the date creating temporary labor arbitration or transferring a collective labor dispute for consideration to a permanent labor arbitration.
Labor arbitration considers appeals from parties to a collective labor dispute; receives Required documents and information relating to this dispute; informs authorities if necessary state power and organs local government about the possible social consequences of a collective labor dispute; makes a decision on the merits of a collective labor dispute.
The decision of the labor arbitration to resolve a collective labor dispute is transferred to the parties to this dispute in writing.
In cases where, in accordance with parts one and two of Article 413 of this Code, a strike cannot be held in order to resolve a collective labor dispute, consideration of the collective labor dispute in labor arbitration is mandatory and the decision of the labor arbitration is binding on the parties regardless of the existence of an agreement between the parties By this issue. Moreover, if the parties do not come to an agreement on the creation of a temporary labor arbitration, its composition and rules, or on the transfer of a collective labor dispute to a permanent labor arbitration, the decision on these issues is made by the relevant state body for the settlement of collective labor disputes.
Labor arbitration is one of three possible options for the pre-trial development of a labor dispute. Labor arbitration is a temporary body created to consider a specific labor dispute if the parties have used other procedures (adhoc).
Since labor arbitration is created as an independent body for resolving labor disputes, it cannot include representatives of workers and employers involved in the dispute.
Like all other forms of conciliation procedures, it is, as a rule, voluntary in nature, since it is created in the presence of two conditions simultaneously: the consent of the parties to resolve the dispute in labor arbitration and the agreement of the parties in writing on the mandatory implementation of arbitration decisions. Safarova E. Trudovye disputes: individual and collective // Labor law. 2010. No. 11. pp. 91-102
The voluntary nature of labor arbitration is reflected in the fact that it can only be created by agreement of the parties. An exception is provided for organizations in which the law prohibits or restricts the conduct of strikes; the creation of labor arbitration is mandatory (see Part 7 of Article 404, Parts 1 and 2 of Article 413 of the Labor Code of the Russian Federation).
Within the meaning of Art. 404 of the Labor Code of the Russian Federation and in accordance with the provisions of ILO Recommendation No. 92, any of the parties can take the initiative and propose to proceed to the consideration of the dispute in labor arbitration, but it is created jointly by the parties. It is impossible to form a labor arbitration without the participation of the employer (if he refuses to continue conciliation procedures).
At the same time, to create labor arbitration, you must contact the Federal Service for Labor and Employment (Rostrud).
The procedure for creating labor arbitration can begin to be implemented in cases provided for by law: Izbienova T.A. Some issues of participation of employee representatives in resolving collective labor disputes // Labor Law. 2011. No. 2. pp. 51-63
if agreement is not reached in the conciliation commission (Part 8 of Article 402 of the Labor Code of the Russian Federation);
in the event of one of the parties to a labor dispute evading participation in the creation or work of a conciliation commission (Part 1 of Article 406 of the Labor Code of the Russian Federation);
in the event that the parties to a labor dispute consciously choose the option of considering it in labor arbitration, bypassing the stage of consideration with the participation of a mediator;
if at the first stage of consideration of the labor dispute (three working days) the parties did not come to an agreement on his candidacy (Part 1 of Article 403 of the Labor Code of the Russian Federation);
if the participation of the mediator in the consideration of the labor dispute did not bring results and the parties still have inconsistent positions;
if its creation is mandatory - for certain categories of workers who do not have the right to strike (Article 413 of the Labor Code of the Russian Federation).
The formation of labor arbitration involves representatives of employees and representatives of the employer interested in resolving the dispute, and Rostrud, since this government body is specifically named as one of the participants in the formation of labor arbitration.
He participates on equal terms with the parties to the dispute both in the creation of labor arbitration and in determining its composition, developing regulations, and determining powers. Thus, labor arbitration is actually a kind of “triple” body that can resolve a collective labor dispute.
The parties are given a maximum of eight working days to create a labor arbitration tribunal and consider the dispute there: three days from the end of the consideration of the labor dispute by the conciliation commission or a mediator to create an arbitration tribunal and five days to consider the dispute. Representatives of the parties to the dispute participate in the consideration of a labor dispute in labor arbitration. Mavrin S.P., Zhilin, V.V. Korobchenko Desk book judges for labor disputes: educational and practical manual / G, etc.; edited by S.P. Mavrina. M.: Prospekt, 2011
The law establishes only two requirements regarding the operating procedure of labor arbitration. Firstly, it must consider a collective labor dispute with the participation of representatives of the parties (Part 4 of Article 404 of the Labor Code of the Russian Federation), therefore, holding meetings in the absence of one or both parties is unacceptable. There can be only one exception to this rule: when a representative of the employees or a representative of the employer made a written request to resolve the dispute without him, the other party agreed, and the arbitration tribunal considered this possible.
The second requirement concerns the subject of the dispute. Since labor arbitration is a conciliation body created to resolve a specific collective labor dispute, and is, as a rule, the second body trying to reconcile the parties, only a protocol of disagreements drawn up by a conciliation commission or a mediator together with the parties to the dispute is submitted for its consideration.
This could be a protocol of disagreements drawn up during collective bargaining, or employee demands.
The subject of the dispute is a range of issues on which the parties could not reach agreement in the process of resolving the dispute. It can only be narrowed by achieving certain compromises. It is unacceptable to submit for discussion in labor arbitration claims that have not been considered by the conciliation commission.
The procedure for considering a collective dispute by labor arbitration consists of several stages: Safarova E. Labor disputes: individual and collective // Labor Law. 2010. No. 11. pp. 91-102
studying documents and materials presented by the parties;
hearing representatives of the parties;
hearing witnesses and experts, if necessary;
development of a solution on the merits of a labor dispute.
It should be noted that today the contradiction in the name of the act adopted by labor arbitration has been corrected: now in all parts of Art. 404 and further in the Labor Code of the Russian Federation, this act is called a decision.
The result of consideration of a collective labor dispute in labor arbitration is the adoption of a decision to resolve the dispute. It is drawn up in writing, signed by labor arbitrators and handed over to the parties to the labor dispute.
During the resolution of a labor dispute, arbitrators are released from their main work while maintaining their average earnings (see Article 405 of the Labor Code of the Russian Federation).
Labor arbitrators are obliged to preserve state, official and trade secret which became known to them during the implementation of conciliation procedures.
To provide practical assistance territorial authorities for the settlement of labor disputes to the federal divisions of the executive authorities of the constituent entities of the Russian Federation, which are entrusted with the functions of resolving labor disputes, the Resolution of the Ministry of Labor of Russia No. 59 approved Recommendations on the organization of work on the consideration of a labor dispute in labor arbitration. They can be applied to the extent that they do not contradict the current edition of the Labor Code of the Russian Federation.
54. Consideration of a collective labor dispute in labor arbitration.
Labor arbitration is a body for the consideration of collective labor disputes. Temporary labor arbitration is created by the parties to the dispute together with the state body for the settlement of collective labor disputes to consider the dispute. By decision of the relevant tripartite commission for the regulation of social and labor relations, a permanent labor arbitration may be created under it to consider collective labor disputes submitted to it by agreement of the parties.
Labor arbitration in Russia is voluntary. The voluntary nature of labor arbitration is manifested primarily in the fact that it can only be created by agreement of the parties. If the employer refuses to create labor arbitration, workers have the right to go on strike, but it is impossible to create arbitration and consider the dispute in it against the will of one of the parties to the dispute.
Thus, the refusal of a collective of workers to form a labor arbitration tribunal is not a violation of the procedure for considering and resolving a collective labor dispute. This conclusion confirmed by judicial practice.
Thus, by the resolution of the conference of the labor collective of CJSC "Port Fleet" dated October 21, 2005 from 8 o'clock. On November 10, 2005, an indefinite strike was declared by workers of this organization with the expected participation of 700 people; a strike committee was elected and proposals were determined for the minimum necessary work (services) performed during the strike.
The administration of Port Fleet CJSC applied to the court to declare this strike illegal, pointing out that the workers' representatives did not fully comply with the deadlines and procedure for resolving a collective labor dispute provided for by the legislation of the Russian Federation, which did not allow the labor collective to go on strike. According to the employer, the motivation for the decision to declare a strike does not correspond to the demands previously put forward by the employees, regarding which a collective labor dispute arose, approved by the resolution of the conference labor collective CJSC "Port Fleet" dated July 15, 2005. Clause 3 of the resolution on declaring a strike included an additional requirement for which conciliation procedures were not carried out.
The applicant believed that the strike could not be recognized as legal and by virtue of Art. 413 of the Labor Code of the Russian Federation, since CJSC "Port Fleet" is a water transport organization. Carrying out a strike poses a threat to the life and health of people and may damage the reputation of the Russian Federation as a party to international agreements on the law of the sea.
The administration of CJSC "Port Fleet" also pointed out that the workers, in accordance with the established procedure, did not agree with the employer on the minimum necessary work (services) performed during the strike, and the presented minimum content does not comply with the provisions of the order of the Ministry of Transport of the Russian Federation dated October 7, 2003 N 197 "On approval of the List of minimum necessary work (services) provided during strikes in organizations (branches and representative offices) of the transport complex" and a number of other requirements arising from the norms and rules for ensuring the safety of ships at the berth and for supplies ships.
By the decision of the St. Petersburg City Court of November 7, 2005, the strike of employees of Port Fleet CJSC was declared illegal.
In the cassation appeal of the labor collective of Port Fleet CJSC, the question was raised about the cancellation of the decision as made in violation of the norms of substantive and procedural law.
On December 16, 2005, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation overturned the court decision on the following grounds.
In accordance with Part 4 of Art. 37 of the Constitution of the Russian Federation recognizes the right to individual and collective labor disputes using the methods for resolving them established by federal law, including the right to strike.
By virtue of Art. 2 of the Labor Code of the Russian Federation, ensuring the right to resolve individual and collective labor disputes, as well as the right to strike in the manner established by the Code and other federal laws, is one of the basic principles of legal regulation of labor relations and other relations directly related to them.
The employee’s right to resolve individual and collective labor disputes, including the right to strike, in the manner established by the Labor Code of the Russian Federation and other federal laws, is also provided for in Art. 21 Labor Code of the Russian Federation.
As stated in Part 2 of Art. 409 of the Labor Code of the Russian Federation, employees or their representatives have the right to begin organizing a strike if conciliation procedures do not lead to the resolution of a collective labor dispute or the employer evades conciliation procedures or does not comply with the agreement reached during the resolution of a collective labor dispute.
By virtue of Part 1 of Art. 401 of the Labor Code of the Russian Federation, the procedure for resolving a collective labor dispute consists of the following stages: consideration of a collective labor dispute by a conciliation commission, consideration of a collective labor dispute with the participation of a mediator and (or) in labor arbitration.
Moreover, according to Part 2 of the same article, only consideration of a collective labor dispute by a conciliation commission is a mandatory stage of its resolution.
The court found that on July 15, 2005, a conference of the labor collective of Port Fleet CJSC was held, at which a resolution was adopted to recognize wages employees of Port Fleet CJSC, which does not meet the increase in consumer prices for goods and services in St. Petersburg; requirements for the employer to increase were approved official salaries from July 1, 2005 - by 15% to all those employees for whom indexation was not carried out in 2004, from September 1, 2005 - by 20% to the entire workforce of Port Fleet CJSC, and to icebreaker crew members - by 50% to the command staff and 30% for privates. The same resolution approved a list of representatives of the labor collective for inclusion in the commission to consider this issue.
On July 20, 2005, the chairman of the trade union committee of Port Fleet CJSC sent a proposal to the administration of the organization to begin negotiations on increasing wages.
By order of the executive director of Port Fleet CJSC dated July 21, 2005, a commission was formed to review the demands of workers, including representatives of the workforce and representatives of the organization’s administration, and the start date of the commission’s work was determined - July 25, 2005.
The demands put forward by the employees were not voluntarily satisfied by the employer, and therefore, in the period from July 25 to August 8, 2005, a conciliation commission worked, by the decision of which on August 8, 2005 the negotiations were postponed until October 4, 2005 in connection with the introduction of two months as a temporary measure of bonuses for ship crews.
The work of the commission continued on October 5 and 7, 2005, but no agreement was reached to resolve the labor dispute.
On October 11, 2005, the administration of Port Fleet CJSC handed over to the employee representative the documents signed on its part: minutes of the commission meeting dated October 7, 2005, which contained the commission’s decision to proceed to the consideration of the dispute in labor arbitration, a protocol of disagreements and a draft agreement on the transfer of the dispute for consideration by labor arbitration.
On October 12, 2005, the employee representative submitted to the administration a draft agreement to invite a mediator. On the same day, the administration of Port Fleet CJSC sent a letter to employees, in which they drew attention to the incompleteness of conciliation procedures due to the absence of a protocol of disagreements signed by the parties, and also confirmed its agreement to submit the dispute to labor arbitration.
On October 14, 2005, the employees handed over to the administration another version of the protocol dated October 7, 2005, which contained a decision to proceed to resolving the dispute with the participation of a mediator, as well as a protocol of disagreements signed by the employees.
In connection with the signing of the protocol of disagreements by the parties, the work of the conciliation commission in accordance with Part 1 of Art. 403 of the Labor Code of the Russian Federation is considered completed, after which the parties to the collective labor dispute proceed to continue conciliation procedures with the participation of a mediator and (or) in labor arbitration (Part 7 of Article 402 of the Labor Code of the Russian Federation).
The minutes of the commission meeting dated October 7, 2005 were not signed by the parties due to disagreements arising between them regarding the choice of the further form of settlement of the collective labor dispute: by turning to a mediator or labor arbitration.
Satisfying the demand of the administration of Port Fleet CJSC to recognize the strike as illegal, the court pointed out that after consideration of a collective labor dispute by the conciliation commission, one of the subsequent stages of resolving the collective labor dispute is mandatory. Since, after the company’s administration rejected the workers’ proposal for a mediator, the collective of workers refused to form a labor arbitration tribunal, the court found that the declared strike was illegal due to the workers’ failure to comply with the procedure for resolving a collective labor dispute.
This conclusion of the court is based on incorrect interpretation and application of substantive law.
In accordance with Part 1 of Art. 403 of the Labor Code of the Russian Federation, after the conciliation commission has drawn up a protocol of disagreements, the parties to a collective labor dispute may invite a mediator within three working days. If within three working days the parties to a collective labor dispute have not reached an agreement regarding the candidacy of a mediator, then they begin to create a labor arbitration tribunal.
By virtue of Part 1 of Art. 404 of the Labor Code of the Russian Federation, labor arbitration is created if the parties to a collective labor dispute have entered into a written agreement on the mandatory implementation of its decisions. The law connects the possibility of using this procedure not with the decision of the parties to switch to this procedure, but with the fact of reaching agreement on the mandatory implementation of its decisions.
Concluding an agreement is a two-way voluntary process. Norm part 1 art. 404 of the Labor Code of the Russian Federation cannot be interpreted otherwise than as giving both parties to a collective labor dispute freedom of choice when submitting a dispute to labor arbitration. Having given the parties to a collective labor dispute the right to make a voluntary decision on the creation of labor arbitration, the legislator gave the right to each party, including employees, to disagree with the binding nature of these decisions and thus refuse to use this procedure for resolving a collective labor dispute.
Neither in Art. 403, nor in Art. 404 of the Labor Code of the Russian Federation there is no rule on the mandatory consideration of a collective labor dispute with the participation of a mediator and (or) in labor arbitration. The court misinterpreted the content of Art. 404 of the Labor Code of the Russian Federation as obliging employees to enter into an agreement with the employer on the creation of labor arbitration. The very nature of labor arbitration and the procedure for its creation are based precisely on the voluntary agreement of the parties, and not on forcing them to enter into such an agreement. In this regard, the creation of labor arbitration is impossible without a voluntary agreement on this by all participants in a collective labor dispute.
As an exception to this rule, the legislator provided for only one case when the creation of labor arbitration is mandatory. In accordance with Part 3 of Art. 406 of the Labor Code of the Russian Federation, it is mandatory in organizations in which the conduct of strikes is prohibited or limited by law, i.e. in cases where workers do not have the right to strike at all or such a right can be exercised only if it does not pose a threat to the defense of the country and the security of the state, life and health of people.
When applying sub. "b" part 1 art. 413 of the Labor Code of the Russian Federation, the court did not take into account that strikes on water transport are not prohibited in all cases, but only when the activities of the transport organization are related to ensuring the livelihoods of the population.
The court decision does not provide any motivation for the conclusion that Port Fleet CJSC belongs to the category of organizations in which the law prohibits or restricts the conduct of strikes, but at the same time, Part 1 of Art. 413 Labor Code of the Russian Federation.
There is no reliable data in the case materials that CJSC "Port Fleet" in its activities is related to direct service to the population. The application of this rule by the court could be recognized as justified only if the court had reliably established the fact of direct service to the population of Port Fleet CJSC.
In addition, the court concluded that when workers declared a strike, they unlawfully included among their demands an additional demand to restore the position of the trade union committee, for which conciliation procedures were not carried out.
How to install Supreme Court RF, it is also impossible to agree with this conclusion of the court for the following reasons.
As follows from the case materials, the workers actually put forward a new demand on October 21, 2005 to ensure the activities of the trade union. From the minutes of the labor collective conference dated October 21, 2005, it follows that the workers intend to carry out conciliation procedures regarding this requirement.
On October 26, 2005, the trade union committee sent a letter to the employer, in which it notified him of a new requirement and the need to report the decision taken representative body within three working days. Only on November 7, 2005, at a court hearing, the defendant was given an order to create a conciliation commission on this request.
Thus, from the materials of the case and from the actions of the parties, it follows that the new demand was not a reason to declare a strike, but, on the contrary, the parties to the dispute clearly expressed their intention to resolve a new collective labor dispute and are currently resolving it in the manner prescribed by law.
Recognizing the strike as illegal on the grounds provided for in Part 1 of Art. 413 of the Labor Code of the Russian Federation, the court pointed out that creating a threat to the life and health of people during a strike is not excluded.
Meanwhile, the court's decision cannot be based on assumptions. There was no evidence presented to the court of the existence of a real threat to the life and health of people during the strike by employees of Port Fleet CJSC; accordingly, the court did not evaluate them in its decision. The presence of a threat to life and health are objective factors, the existence of which depends on the factual circumstances of the case and which are subject to proof in each specific case using the means of evidence established by law. At the same time, the court’s conclusions on this matter must be correlated with the minimum necessary work developed by the parties to the collective dispute, which is precisely aimed at preventing the negative consequences of the strike.
Thus, when considering the case, the court did not establish the existence of an immediate threat to the life and health of people as a result of the strike by employees of Port Fleet CJSC, and therefore the decision in this part is unfounded.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation overturned the decision of the St. Petersburg City Court and sent the case for a new trial to the same court * (182).
When considering a collective labor dispute, labor arbitration is created in the following cases:
Avoidance of one of the parties to a collective labor dispute from participation in the creation or work of a conciliation commission;
Failure of the parties to reach an agreed decision regarding the candidacy of a mediator after the expiration of the period established by law;
Completion of consideration of a collective labor dispute with the participation of a mediator no later than the next working day after the day the protocol of disagreements was drawn up;
Consideration of a collective labor dispute between employees and employers of organizations in which the legislation of the Russian Federation prohibits or restricts the conduct of strikes;
Failure to reach agreement when considering a collective labor dispute by a conciliation commission, if the parties chose to consider the dispute in labor arbitration as the next conciliation procedure (clause 3 of the Recommendations on the organization of work on the consideration of a collective labor dispute in labor arbitration, approved by the resolution of the Ministry of Labor and Social Development of the Russian Federation dated 14 August 2002 N 59).
If the employer (employer's representative) avoids creating a conciliation commission or participating in its work, representatives of employees can contact the body Federal service on labor and employment on the formation of labor arbitration.
If employee representatives avoid creating a conciliation commission or participating in its work, the employer’s representative can contact the body of the Federal Service for Labor and Employment regarding the formation of labor arbitration.
Labor arbitration consists of arbitrators who can be elected by any independent specialists (experts) chosen by the parties to a collective labor dispute. Since labor arbitration is created as an independent arbitration body, its composition cannot include representatives of workers and employers participating in the consideration of a collective labor dispute.
Possible compensation of costs to persons involved in the consideration of a collective labor dispute as labor arbitrators may be carried out by agreement of the parties to the collective labor dispute.
Specific persons may be repeatedly involved in the consideration of collective labor disputes as part of labor arbitrations. Wherein total duration their participation in resolving collective labor disputes cannot exceed three months a year. This provision does not apply to employees for whom participation in the consideration of collective labor disputes in labor arbitrations is part of their job responsibilities, and to persons who do not have a permanent place of work.
The decision to create a labor arbitration, its composition, and work regulations are documented in the minutes of a joint meeting of representatives of the parties and the body of the Federal Service for Labor and Employment. The protocol is signed by representatives of the parties and the authorized body. The date of its signing is considered the day of creation of the labor arbitration.
The protocol should reflect the conditions for the participation of labor arbitrators in the consideration of a collective labor dispute, having been agreed upon directly with the labor arbitrators, the heads of the organizations where they work, and the body of the Federal Service for Labor and Employment.
The composition and rules of temporary labor arbitration are established by a decision of the employer (representative of employers), representative of employees and the state body for the settlement of collective labor disputes. The procedure for forming the composition of a permanent labor arbitration tribunal to resolve a specific labor dispute and its regulations are determined by the regulations (the charter of a permanent labor arbitration tribunal) approved by the relevant tripartite commission for the regulation of social and labor relations.
A collective labor dispute is considered in labor arbitration with the participation of representatives of the parties to the dispute when resolving a collective labor dispute at the local level within up to three working days, and when resolving a collective labor dispute at other levels of social partnership - within up to five working days from the date of creation of the temporary labor arbitration or transfer of a collective labor dispute to a permanent labor arbitration.
If necessary, the deadlines provided for conciliation procedures may be extended by agreement of the parties to a collective labor dispute.
The procedure for considering a collective labor dispute by labor arbitration (the rules of its work) is determined by the parties to the dispute and the body of the Federal Service for Labor and Employment when creating a labor arbitration. The regulations may establish:
Duration of daily meetings;
Rules for replacing one of the labor arbitrators in case of illness and other unforeseen circumstances;
The order of explanations of the representatives of the parties on the merits of the dispute;
Possibility and procedure for challenging labor arbitrators, etc.
The procedure for considering a collective labor dispute by labor arbitration consists of several stages:
1) study of documents and materials presented by the parties to a collective labor dispute;
2) hearing representatives of the parties to a collective labor dispute;
3) hearing experts, if necessary;
Recommendations of labor arbitration are drawn up in writing, taking into account all the circumstances of the case in accordance with the current legislation of the Russian Federation, signed by labor arbitrators and transmitted to the parties. Recommendations are made taking into account all the circumstances of the case.
The recommendations of the labor arbitration are documented in the minutes of the labor arbitration meeting. The protocol, signed by the members of the labor arbitration, indicates the labor arbitrators present at the meeting, representatives of the parties to the dispute, and a list of measures necessary to resolve the collective labor dispute.
These recommendations are binding on the parties to a collective labor dispute by virtue of the concluded agreement on their implementation. Such an agreement is concluded and formalized in writing before the creation of labor arbitration or simultaneously with its creation.
To implement the tasks assigned to it, labor arbitration is vested with appropriate powers. Labor arbitration considers appeals from parties to a collective labor dispute; receives the necessary documents and information relating to this dispute; informs, if necessary, state authorities and local governments about the possible social consequences of a collective labor dispute; makes a decision on the merits of a collective labor dispute.
In the decision to create a labor arbitration, the parties to the dispute and the body of the Federal Service for Labor and Employment may indicate the specific powers that are vested in the labor arbitrators to consider and resolve the dispute. For example, the right to interview employees, attract an expert or consultant.
Request and receive from the parties the necessary documents and information on the merits of a collective labor dispute;
Hear explanations and appeals from the parties to a collective labor dispute;
Invite to meetings specialists competent in the issues of the collective labor dispute under consideration;
Require representatives of the parties to bring the decisions of labor arbitration to the attention of the collective of workers;
Offer possible options for resolving a collective labor dispute;
If necessary, inform the relevant executive authorities and local governments about the possible social consequences of a collective labor dispute.
A labor arbitrator must know the current labor legislation, in particular, the legislation on social partnership and the procedure for considering and resolving collective labor disputes.
He must master the methods of conducting the contractual process. In addition, “it is also desirable for him to be familiar with the basic principles of the work of trade union organizations, the current system for handling complaints, personnel policies and other aspects of the life of the organization that is a party to a collective labor dispute” * (183).
A labor arbitrator must be able to analyze the situation, carefully evaluate the possible results of his proposals and recommendations, and strive to complete the labor dispute at the stage of consideration in labor arbitration. He must be prepared to give the parties suggestions and alternatives on the procedure and substance of the contractual process in order to help the successful progress of negotiations, and not put pressure on the representatives of the parties.
Labor arbitrators are required to maintain state, official, commercial and other secrets protected by law when performing their functions while participating in conciliation procedures.
Confidential information entrusted to labor arbitrators in the process of considering and resolving a collective labor dispute should not be disseminated or used by them for personal or other benefit.
A labor arbitrator must not accept remuneration or valuable gifts from representatives of parties to a collective labor dispute.
To ensure the normal functioning of labor arbitration, it is necessary to resolve some issues, which primarily include the provision of premises, the provision of office equipment and service personnel, payment, if necessary, for consultation with a specialist and other similar activities.
1 See: Your right. 1997. No. 10. A collective labor dispute is referred to labor arbitration after it has passed the conciliation commission and was not resolved there, or after the participation of a mediator has not led to an agreement between the parties.
In cases where an employer evades participation in the creation or work of a conciliation commission, a collective labor dispute may also be referred to labor arbitration.
The labor arbitration tribunal cannot include representatives of the parties to a collective labor dispute.
The creation of a labor arbitration tribunal, its composition, regulations, and powers are formalized by a corresponding decision of the employer, the employee representative and the Service. The chairman of the labor arbitration is usually approved by agreement of the parties from among the members of this labor arbitration.
A collective labor dispute is considered in labor arbitration with the participation of representatives of the parties within up to five working days from the date of its creation.
Labor arbitration considers appeals from the parties; receives the necessary documents and information regarding the collective labor dispute; informs, if necessary, state authorities and local governments about the possible social consequences of a collective labor dispute; develops recommendations on the merits of a collective labor dispute.
At meetings of the labor arbitration, minutes are kept in which the surnames, first names and patronymics of its members are entered; the date of establishment of the arbitration, indicating the document (agreement) confirming the will of the parties on this issue; dates of meetings; essence of the dispute; the opinion of the parties, as well as experts and specialists, if they were invited; a decision made by arbitration, with appropriate justification (motivation).
Recommendations of labor arbitration for the settlement of a collective labor dispute are transmitted to the parties in writing and become binding on the parties if the parties have entered into a written agreement on their implementation.
Ministry of Labor and social development RF On March 27, 1997, Recommendations on the organization of work on the consideration of a collective labor dispute in labor arbitration were approved.
The parties and conciliation bodies must use every opportunity to eliminate the causes and circumstances that led to the collective labor dispute (conflict).
The agreement reached by the parties during the resolution of a collective labor dispute is drawn up in writing and has
See: Your right. 1997. No. 11. binding force for the parties. Control over its implementation is carried out by the parties to a collective labor dispute.
In cases where the employer evades the creation of labor arbitration, the consideration of a collective labor dispute in labor arbitration, as well as the implementation of its recommendations, if an agreement is reached on their binding nature, workers may proceed to a strike.
6. Guarantees for workers in connection with the resolution of a collective labor dispute.
Members of the conciliation commission, mediators, labor arbitrators, while participating in the resolution of a collective labor dispute, are released from their main work while maintaining their average earnings for a period of no more than three months during the year.
Representatives of trade unions, their associations, and public initiative bodies participating in the resolution of a collective labor dispute cannot be subjected to disciplinary action, transferred to another job, moved or dismissed on the initiative of the administration without the prior consent of the body that authorized them to represent.
Consideration of a collective labor dispute in labor arbitration.
The effectiveness of this stage.
Agreement of the parties on their intention to consider the dispute in labor arbitration
What is labor arbitration, by whom and how is it formed?
Who can recommend candidates for labor arbitrators to the parties?
The mechanism of labor arbitration.
The form of decisions made and their support.
A practical example of dispute resolution in labor arbitration.
Regulations.
Consideration of a collective labor dispute in labor arbitration is one of the stages of resolving a collective labor dispute.
If agreement is not reached in the conciliation commission and (or) with the participation of a mediator, the parties to a collective labor dispute may proceed to the creation of labor arbitration.
In cases provided for in Article 413 Labor Code In the Russian Federation, when a strike cannot be held, the creation of labor arbitration is mandatory.
The effectiveness of considering a collective labor dispute in labor arbitration is that if the parties themselves cannot come to an agreement, then the decision is made by an independent body, which is created no later than three working days by the decision of the parties to the collective labor dispute and the relevant state body for the settlement of collective labor disputes. The participation of labor arbitrators in the consideration of a collective labor dispute should provide the parties to the collective labor dispute additional features for its peaceful resolution.
At the same time, if the parties do not come to an agreement on the creation of a labor arbitration, its composition, regulations and powers, then the decision on these issues is made by the state body for the settlement of collective labor disputes.
Labor arbitration is a temporary body for the consideration of collective labor disputes.
By decision of the relevant tripartite commission for the regulation of social and labor relations, a permanent labor arbitration may be created under it to consider and resolve collective labor disputes submitted to it for consideration by agreement of the parties.
The creation of a labor arbitration, its composition, regulations, powers are formalized by agreement of the parties to a collective labor dispute.
The decision to create a labor arbitration, its composition, and work regulations are documented in the minutes of a joint meeting of representatives of the parties and the relevant government body for the settlement of collective labor disputes.
The procedure for considering a collective labor dispute by labor arbitration (the rules of its work) is determined by the parties and the state body for the settlement of collective labor disputes.
The rules may establish: the duration of daily meetings; rules for replacing one of the labor arbitrators in case of illness and other unforeseen circumstances; the order of explanations of persons representing the parties on the merits of the dispute; possibility and procedure for challenging labor arbitrators, etc.
The date of signing the protocol is considered the day the labor arbitration was created.
The protocol should reflect the conditions for the participation of labor arbitrators in the consideration of a collective labor dispute, having been agreed directly with the labor arbitrators, the heads of the organizations where they work and the state body for the settlement of collective labor disputes.
In Moscow, parties to a collective labor dispute can apply to the Institution "Labor Arbitration Court for the resolution of collective labor disputes."
The institution will assist the parties to the dispute in creating a temporary labor arbitration with the provision of premises for holding its meetings, provide labor arbitrators with the necessary office equipment and legal documentation, provide the parties with the necessary consulting assistance, as well as assistance in preparing regulations.
The period for consideration of a dispute in labor arbitration is up to three working days.
If necessary, the deadlines provided for conciliation procedures may be extended by agreement of the parties to a collective labor dispute.
To implement the tasks assigned to it, labor arbitration is vested with appropriate powers.
Labor arbitrators have the right:
request and receive from the parties the necessary documents and information on the merits of a collective labor dispute;
hear explanations and appeals from the parties to a collective labor dispute.
The procedure for considering a collective labor dispute by labor arbitration consists of several stages:
- election of the chairman of the labor arbitration,
- studying documents and materials presented by the parties;
- hearing representatives of the parties;
- hearing experts, if necessary;
- development of solutions on the merits of a collective labor dispute;
The labor arbitration decision is drawn up in writing, taking into account all the circumstances of the case in accordance with current legislation Russian Federation, signed by the labor arbitrators and handed over to the parties. The labor arbitration decision is documented in the minutes of the labor arbitration meeting. The protocol, signed by the members of the labor arbitration, indicates the labor arbitrators present at the meeting, representatives of the parties to the dispute, and a list of measures necessary to resolve the collective labor dispute.
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