characteristics of labor disputes

Table of contents

Chapter 1. The concept and general characteristics of labor disputes ...................... 5

Chapter 2. Individual labor disputes ............................................ 7

2.1. Resolution of individual labor disputes through negotiations with the

2.2. Consideration of individual labor disputes in the labor dispute ............................................................................ 11

2.3. Consideration of individual labor disputes in the courts ................... 13

Chapter 3. Concept, object, sides and types of collective labor

3.1. Resolution of collective labor disputes in the conciliation

3.2. Resolution of collective labor disputes involving a mediator ..... 19

3.3. . Consideration of a collective labor dispute in the labor

3.4. The strike as a way to resolve collective labor disputes ...... 21

Chapter 4. State supervision and monitoring of compliance with labor

4.1 Federal Labor Inspection ...................................................... 28

Chapter 5. Problems with labor disputes .............................. 34

References ........................................................................ 46

Introduction

It has been over 10 years since both came into effect Constitution of the Russian Federation. Article 37 of the Constitution establishes the right of citizens to labor disputes as a way to protect their labor rights. This is a fundamental point regarding labor relations, specifying the industry in the aspect of labor law constitutional provision on the right to the protection of citizens' rights by all legal means. During these ten years, all the legislation of the Russian Federation was set in line with the new Constitution. So from February 1, 2006 came into force on the Labour Code of the Russian Federation from December 30, 2001

It's no secret that the Russian economy is in its infancy. Many businesses have moved into private hands, and are the subjects of entrepreneurial activity. And the purpose of business is to make profit, though its size should be as high as possible. In this case, employers often go to the violation of the rights of workers, thus putting at the heart of the reduction of material costs for the implementation of these rights, thereby trying to increase the share of net income. Consequently, there is an objective contradiction between the rights of workers in the field of labor relations and the main purpose of business, which consists in maximizing profits.

In this case, the law is to protect the rights of workers. The new Labour Code has many mechanisms to protect the rights of workers, but as shown by a two-year experience of its application, unfortunately, it did not solve all problems. The question is that these mechanisms are not sufficiently effective in practice, and their application is extremely problematic.

Labour disputes - conflicts between employers and employees in the field of labor relations in the post-Soviet years were massive and chronic phenomenon. According to the Supreme Court of the Russian Federation for the period from 1993 to 2001, the total number of cases on violations of labor rights has increased from 94 million to 1.5 million, ie more than 15 times. And if you take a more acute problem as violations of pay, here the number of cases has increased over this period from 14 thousand to 1.3 million (70 times). From these facts it is clear that the theme of this work is relevant because:

· At present labor relations are moving into a new phase. First introduced in the Russian Labor Code, which protects equally the interests of workers and the interests of the employer;

· In these circumstances, the legal institution that regulates the scope of the resolution of individual labor disputes reflects the protection of interests of the parties in a market economy.

Chapter 1. The concept and general characteristics of labor disputes

In the event of termination of employment or relationships, as well as in the course of their actions are often disagreements between workers and employers. The reason for their occurrence is usually a violation of applicable labor standards and other social legislation.

However, not every disagreement develops into a legal dispute. Participants relations governed by labor law, can resolve their conflict by peaceful means, through negotiations and not to allow the transition occurring between them over to the stage of a labor dispute. But if the conflict can not be solved by the participants and there is a need to bring to its resolution of the commissioners of this, it turns into a labor dispute. Based on the foregoing, we formulate a definition of labor disputes:

Labor dispute - the differences between the employee (employees) and the employer's establishment and application of existing labor standards and other social legislation that has not been resolved in direct negotiations with the employer and have been the subject of proceedings in the specially authorized by the organs [17, p. 32]

Terms of disputes - it is the circumstances that directly or indirectly affect the employment relationship, causing unresolved disputes between labor and management. The cause of labor disputes are legal facts directly caused the differences between the employee (employees) and the administration. Even the common causes of labor disputes are specific to a particular legal relationship to resolve the labor dispute. This - the impairment of the rights of the employee, or failure to comply with the duties of the enterprise (for example, his liability for damages).

Trade unions legislation designed to represent the interests of workers and protect their rights. They are not always sufficient to actively and effectively contribute to the resolution of disputes between labor and management, so they do not use for this purpose all means at their disposal.

To address the causes of labor disputes should be used means and methods that act on each of them comprehensively. However, even if all the necessary measures will be taken to completely eliminate the causes of labor disputes is unrealistic. Labor disputes will not disappear. Can decrease the total number, but for the foreseeable future labor disputes will exist.

Effective tool for the protection of workers' rights is meant to be a statutory grievance procedures. We call the regulations governing this order.

Basic regulations on labor disputes are the laws of the Russian Federation. The first is the Constitution of the Russian Federation, securing basic rights at work and among them - the right to protection of their rights (including legal protection). Among the most important regulations governing the consideration of labor disputes, including the Labour Code, adopted by the State Duma on December 21, 2001. International legal regulation of labor relations also became one of the most important parts of the Russian labor law that must be considered in the resolution of labor disputes [6, p. 34]

Also of great importance for the settlement of labor disputes has jurisprudence. Of course, the decision of the Plenum of the Supreme Court are not a source of law, and not part of the regulations. However, they contain a judicial interpretation of the relevant issues, and the courts, examining specific cases, guided by them, and used to generate a uniform judicial policy.

Chapter 2. Individual labor disputes

Individual labor disputes recognizes the dispute between the employer and the person previously in labor relations with the employer, and the person who has expressed a desire to enter into an employment contract with an employer in the event of failure of the employer to make the contract [21, p. 26]

As a general rule, individual labor disputes, depending on the jurisdiction, divided into discussed in a general way (the commission on labor disputes is a mandatory pre-trial stage) and at the individual spores (directly addressed by the court). In addition, some of them can be resolved by the employer and the relevant trade union body, as well as a higher authority.

The main cause of labor disputes are disputes between the employee and the employer, either directly or through its administration. On the subject of controversy disputes can be divided into three groups depending on the immediate causes of [21, p. 17]

1. The workers claim to improve the conditions of the sale of its workforce - increasing wages, benefits, length of leave, better conditions at work, etc., and the employer does not agree.

2. Employees want to maintain the current conditions in the assault on them by the employer.

3. Legal disputes. These include those that arise because of the complexity and inconsistency of laws and other regulations, as well as the fact that many administrators are not fluent in the labor laws.

Trade unionists are often hampered in their actions to protect the rights of workers, lack of understanding and meeting resistance from the administration and the passive attitude of employees to illegal acts of its representatives.

The Russian economy has developed two legal regime of labor relations - to write labor law for the budget organizations and the "ordinary" right for a new commercial sector. If the budget organizations Labour Code still somehow respected, the new commercial sector it just does not work. In small and medium-sized businesses are common civil law relations, as it is convenient to the employer (no need to comply with the minimum guarantees established in the labor law).

The growing number of small and medium-sized enterprises exacerbates the problem of protecting the legal rights of employees. These enterprises usually do not create trade union organizations are not elected the labor dispute, ie There are no authorities to represent and protect the interests of employees.

Legal insecurity plus legal ignorance causes people to accept any terms of the "host". Number indentured growing, and therefore increasing the number of disadvantaged workers. Therefore, the objective need for the existence of a specialized labor law persists and even becomes even more urgent.

Now consider how the resolution of individual labor disputes.

2.1. Resolution of individual labor disputes by negotiation with the employer

Any labor dispute can be resolved through negotiations with the employee by the employer.

Their demands employee can explain in the application and submit it to the employer in the prescribed manner. But it is better to meet with the employer in person and make him aware of their requirements orally, but you must prepare a written version of their claims in duplicate [30, p. 11]

Resolution of individual labor dispute by negotiation with the employer can be regarded as a mandatory procedure. It follows from the provisions of art. 385 of the Labor Code of the Russian Federation: "The individual labor dispute is considered by a commission on labor disputes, if an employee with or without the participation of a representative does not resolve the differences in direct negotiations with the employer." That is, before you contact a labor dispute committee (CCC), or to the court, the employee must make every effort to resolve the dispute through negotiations.

The employee may negotiate both independently and with a representative. Article 370 of the Labour Code stipulates that trade union organization may participate in the settlement of labor disputes involving violations of labor protection legislation, the obligations under collective agreements, as well as to changes in working conditions. In cases of violation of labor law unions may, at the request of members of trade unions and other workers, as well as on their own initiative to make application to the protection of their labor rights bodies, considering labor disputes. But this situation is possible only in enterprises where there is a trade union organization. This is usually a big enterprise.

An employee who is carrying out his career with the employer - the subject of small business that does not find understanding of the problems of the employer may immediately go to court. But it also is possible to bring to the solution of the problems of representatives of the federal labor inspectorate or the prosecutor's office.

In the case of receipt of the application by the fact an individual labor dispute employee of the Federal Labour Inspectorate makes the analysis of the facts stated in the application that led to the emergence of an individual labor dispute, for violations of the labor legislation. In case of violations shall be appointed inspector to check the organization of which the employee has applied, to determine the causes of the violation of labor laws. In the case of confirmation of violations of labor laws inspector issues a prescription head of the organization for their elimination. Typically, in this case in accordance with Art. 357 of the Labor Code, the inspector of the Federal Labour Inspectorate draws employer to administrative responsibility. In the case of ignoring the head of the organization regulations of the Federal Labour Inspectorate inspector, he according to Art. 357 of the Labor Code of the Russian Federation may submit materials for violations of Russian legislation on labor protection law enforcement authorities about bringing the perpetrators to justice, and to sue in court.

Another institution at which the employee may apply for protection of their rights if you can not resolve individual labor dispute by negotiation with the employer, is the Prosecutor's Office of the Russian Federation. Attorney for consideration of the application detects violations of labor laws, takes an explanation from the employee, the employer or third parties that might provide an explanation on the merits of the individual labor dispute. In case of violations of labor law attorney shall make a protest to the normative act of the employer, which became the cause of an individual labor dispute or the idea of ​​eliminating these causes [16, p. 64]

Appeal to the Federal Labour Inspectorate and the prosecutor's office can be considered the involvement of these authorities to participate in the negotiation process between the employer and the employee on the merits of the individual labor dispute. But these bodies will already be imperative to carry out an impact on the employer. This imperative impact on the employer's side of these bodies is possible only in case of violation of labor laws by the employer.

2.2. Consideration of individual labor disputes in the labor dispute

The commission on labor disputes - non-judicial body that operates in the organization. It is formed of an equal number of representatives of employers and employees to resolve labor conflicts [16, p. 67]

The order of consideration of individual labor disputes in the TCC is set by this Labour Code (Art. 387-389).

In accordance with Art. 29-32 of the Labour Code, workers' representatives in the CCC may delegate trade unions or other representative bodies of workers, such as workers council. Delegated face after their approval by the general meeting of the members of the organization have become full members of the organization of the CCC. Employer representatives appointed by the head of the organization in the CCC.

CCC shall elect from its members a chairman and secretary of the commission. They entrusted the preparation and convening of the regular session, the attendance of witnesses, experts and other persons who may contribute to the proper resolution of the dispute. The Secretary shall keep the minutes of the CCC meeting.

Article 385 of the Labor Code defines the jurisdiction of the labor dispute.

Preliminary consideration of the dispute to the CCC is not a prerequisite, without respect of which the employee may not appeal to the courts. An employee may apply to the Court, bypassing the committee. The initiators of the formation of the CCC are the parties themselves a labor dispute - the employee and the employer. To the Commission a labor dispute comes when an employee with or without the participation of a representative does not resolve the differences in direct negotiations with the employer. CCC in this case, is the arbiter between the parties to the dispute. And if the parties request this referee, they must comply with a specific order of the dispute and submit to the decision to be taken.

TCC considers disputes on transfers to other jobs and changing the other terms of the employment contract, the imposition of disciplinary sanctions, wages, and other disputes relating to compliance with the terms of the employment contract. In the CCC can not be considered controversial by standard-setting work, salary and wage rates, changes in the state, assigning wage categories. Lack of jurisdiction of the CCC and other disputes, the resolution of which the law only refers to the competence of a court or other body.

CBS is obliged to consider the individual labor dispute within 10 calendar days from the date of the employee statements. The dispute is seen in the presence of an employee who has applied, or his authorized representative. The dispute in the absence of the employee shall be allowed only upon his written statement. In case of absence of the employee or his representative at the meeting said the commission postponed consideration of a labor dispute. In secondary non-appearance of the employee or his representative, without good reason, the Commission may decide to remove the issue from consideration, without prejudice to the employee the right to apply for re-examination of a labor dispute within the period established by the Labour Code (Article 386).

CCC meeting is considered valid if attended by at least half of the members representing the employees, and at least half of the members representing the employer [22, p. 19]

The bulk of individual labor disputes, with some exceptions, can be seen in the labor dispute commissions, and the legislator believes that before considering the individual labor dispute in the CCC shall have been previously negotiated between the employee and the employer on the merits.

2.3. Consideration of individual labor disputes in courts

The courts dealt with individual labor disputes claims an employee of the employer or a trade union to protect workers when they do not agree with the decision of the CCC. Or when an employee goes to court, bypassing the CCC, as well as at the request of the prosecutor, if the decision of the CCC does not comply with the laws and other normative legal acts.

Directly in the courts of individual labor disputes are considered by the statements of [22, p. 24]

· Worker - for reinstatement regardless of the grounds for termination of the employment contract, to change the date and wording the reasons for dismissal, etc.;

· The employer - employee compensation for damage caused organizations, unless otherwise provided by federal law. Directly to the courts are also individual labor disputes:

· Refusal to hire;

· Persons working under labor contracts with employers - individuals;

· Persons who believe that they have been discriminated against.

The employee has the right to apply to the court for resolution of individual labor dispute within three months from the day when he knew or should have known about the violation of his rights, and on the disputes of dismissal - within one month from the date of handing him a copy of the order of dismissal or a date of issue of the work book. The employer has the right to go to court for disputes about employee compensation for damage caused organization, within one year from the date of discovery of the damage caused. At the admission deadlines for legitimate reasons, they can be restored by the court.

Not an obstacle to the stimulation of labor affairs in court the decision of the CCC to dismiss the claims based on the employee passes the statute of limitations.

At the discretion of the citizen complaint filed with the court at his place of residence or to the court at the location of the body, organization, official, for which they are prosecuted. Having accepted the complaint, the court, at the request of the citizen or on its own initiative may suspend the execution of the appealed decision. Citizen complaint is considered by the rules of civil procedure. Upon review of the appeal court rules [11, p. 18]

· Setting the validity of the complaint, the court recognizes the contested decision unlawful, obliges to satisfy the requirement of a citizen, cancels applied to it sanctions or otherwise restore it violated rights and freedoms;

· If the decision appealed the court recognizes the legitimate, do not violate the rights and liberties of the citizen, he refuses to accept the complaint.

The court's decision came into force, shall be binding on all state agencies, local governments, organizations, officials and citizens, and shall be enforceable throughout the territory of the Russian Federation. It is sent to the appropriate authority, organization or official and citizen no later than 10 days after the judgment becomes final. On execution of the decision shall be communicated to the court and the citizen, not later than one month from the date of receipt of the decision of the court. In the case of non-enforcement of court takes measures provided for by the legislation of the Russian Federation.

Chapter 3. Concept, object, sides and types of collective labor disputes

Collective labor disputes - is unresolved differences between employees and employers about establishing and changing working conditions (including wages), the conclusion, amendment and implementation of collective agreements, agreements on social and labor relations (Article 398 TC RF).

First of all, it should be noted unlike the collective labor dispute to an individual arising from this definition. The fact is that in the individual dispute arise, the parties have differences over the statutory rules and regulations governing the work of the employee, their implementation. In the process of collective dispute it comes to rules and agreements, in-laws do not usually painted, but covered (or estimated) in the text of collective agreements. These agreements - the subject of "bargaining" negotiations between the parties to the employment relationship [26, p. 30]

Collective labor disputes arise between the employer (employers) and employees of the organization, branch offices of several organizations. All they exercise power through their representatives. In the case of a collective labor dispute, the parties shall proceed to conciliation.

Because the timing resolution of collective labor disputes by conciliation procedures are precisely defined by law, it is important to establish the beginning of a collective labor dispute. It depends on the nature of the claim.

For example, if a dispute arises in the tie with the establishment or change of working conditions, failure of the collective agreement or agreement or refusal of the employer to take into account the views of elected representative body, containing norms of labor law in the organization, there is a definite procedure for the nomination of employees' claims.

Subject to the requirements put forward to approval at the relevant meeting (conference) of employees.

The meeting is convened by the representative body of workers and is considered competent if attended by more than half the workforce.

The employer is obligated to create appropriate conditions for the holding of a meeting (conference).

Employees' claims are sent to the employer in writing. Employers are required to consider the claims of the employees towards their organization and communicate the decision to the representative body of employees in writing within 3 working days of receiving the request.

 If the employer has satisfied the requirements of workers, the differences are considered to be settled, and a collective labor dispute does not arise. In case of rejection of all or part of the claims, as well as non-disclosure by the employer of his decision, the day a rejection requirements or expiration of the 3-day period before them, the moment is the beginning of a collective labor dispute.

There are three stages of conciliation procedures: conciliation commission, the consideration of a collective labor dispute involving an intermediary labor arbitration.

The dispute begins at the conciliation commission. This is a mandatory procedure. If no agreement in the conciliation commission has not been reached, the parties proceed to the next step. They can use the services of a mediator or proceed to establish labor arbitration.

Thus, there are 3 types of conciliation: conciliation commission - Mediation;

 Conciliation Commission - labor arbitrage;

 Conciliation Commission - Mediation - labor arbitration.

3.1. Resolution of collective labor disputes in mediation commission

The Conciliation Commission - a joint body of the contending parties, established on a parity basis.

The conciliation commission shall be created in up to three business days from the start of a collective labor dispute. It is formed of representatives of the parties on an equal basis. Depending on the scale of a collective labor dispute and the complexity of the demands of a conciliation commission may contain from 2 to 5 representatives from each side. The composition of the conciliation commission may include only representatives of the parties [22, p. 17]

In the case where the employees' claims rejected, the employer should at the same time with a written notice to the representative body of workers to send a proposal for the formation of the Conciliation Commission, its size and composition of its part.

If the employer does not report its decision, the representative body of employees after 3 working days from the date of delivery of the requirements of the employer should send him a proposal for the formation of the Conciliation Commission, its size and composition of its part.

The conciliation commission shall consider the collective labor dispute within 5 working days from the date of its creation. This period may be extended by agreement of the parties that in the protocol.

The decision of the conciliation commission accepted by the parties, in the protocol is binding on the parties and executed in the manner and within the timeframe established by the decision of the commission.

If no agreement is reached in the conciliation commission sides continue to conciliation with the mediator, and (or) in a labor arbitration.

3.2. Resolution of collective labor disputes involving intermediary

The next phase of peaceful procedures - the dispute involving a mediator. The main function of a mediator to assist the parties to find a mutually acceptable solution to resolve collective labor disputes through constructive dialogue. The parties may invite him within three working days after the protocol differences Conciliation Commission. Mediator - this is the third, disinterested person. It should help resolve the conflict and find a solution that would satisfy both the head and the staff. If, within three working days of the disputing did not find a suitable candidate, they need to start creating labor arbitration.

The order of the dispute to the mediator determines he is in agreement with the parties (Article 403 TC RF). The mediator shall consider the dispute within seven calendar days from the date of invitation or appointment. Consideration of the adoption of a written dispute ends with an agreed solution, and if no agreement is reached - by protocol differences [19, p. 33]

3.3. Consideration of a collective labor dispute in labor arbitration

Labor arbitration - is temporarily operating body for the resolution of collective labor dispute. It is created in the following cases:

· If the parties have not reached agreement in a dispute to the conciliation commission or with an intermediary;

· If the parties within 3 working days do not come to an agreement on the candidacy of an intermediary;

· If the parties shying away from making the conciliation commission.

Under the new Labour Code of the Russian Federation (Article 404), labor arbitrage is created only if the parties to a collective labor dispute entered into a written agreement on the mandatory implementation of its decisions. Previously, the parties could enter into such an agreement is already in the process of labor arbitration or after the decision.

Labor arbitration of the dispute and the parties created by the Service to resolve collective labor disputes within a period not later than 3 working days after the examination of a collective labor dispute conciliation commission or an intermediary. The structure of labor arbitration may not include representatives of the parties, it must be independent persons.

Creating a labor arbitration, its composition, rules, powers are made the relevant decision of the employer, employee representative and the Office for the settlement of disputes (recorded in the minutes of the joint meeting of representatives). Date of signing of this protocol is considered the creation of labor arbitration. Labor arbitrage is considering a collective labor dispute with the representatives of the parties within 5 working days from the date of its creation.

Labor arbitrators have the right to [19, p. 38]

· To request and obtain the necessary documents from the parties and report on the merits of a collective labor dispute;

· Invited to the meetings of experts, competent in matters of dispute;

· Require the representatives of the parties bringing the labor arbitration decisions to the attention of the personnel;

· Offer their own options for resolving collective labor dispute.

Upon review of the collective labor dispute arbitration shall adopt recommendations for the settlement of the dispute.

Recommendations made in writing and transmitted to the parties to the dispute. Recommendations are binding on the parties to the dispute in accordance with their written agreement that the parties conclude before the creation of labor arbitration.

All conciliation created keeping in mind the fact that at some stage of the parties finally come to a consensus. If this does not happen, or the employer does not comply with the terms of the agreement, workers still another means - the strike. But this solution is already far from peaceful.

3.4. The strike as a way to resolve collective labor disputes

Strikes have become a reality of our time. If ten or twelve years ago, seemed to strike an extraordinary event, the last few years, reports of these actions sound almost every day, and the number of people involved in their implementation, is growing.

At a resolution of collective labor disputes strike as a way to resolve the dispute may apply if conciliation did not help to resolve disputes between employers and employees, which is directly provided by the Federal Law of 23 November 1995, or if the employer declined to receive the claims of employees and conciliatory procedures, failed to comply with the agreement reached during the conciliation procedures [20, p. 17]

Implementation of claim 1 the right to strike

The strike - this is a temporary voluntary refusal of workers to perform job duties (in whole or in part) in order to resolve a collective labor dispute. The strike must be properly prepared in order to avoid formal grounds for declaring a strike illegal.

No one can be forced to participate in the strike or refuse to participate in the strike. Representatives of the employer is not entitled to organize a strike and to take part in it. The information about the upcoming strike must be given the representatives of the employees to the employer in writing, no later than 10 calendar days. On carrying out a warning strike prevented the employer 3 working days.

The strike ceases conciliation to resolve collective labor disputes. Moreover, the parties shall continue to resolve the dispute through conciliation.

Minimum necessary work (services), branches, representative offices, whose work is linked to the security of people, ensuring their health and vital interests of society, with a strike must be provided.

Responsibility of the trade union organization, which announced and end the strike after declaring it illegal, is for damages caused by the illegal strike at their own expense in an amount determined by the court.

Claim 2 The legal consequences of recognition strike illegal

For liability for carrying out the illegal strike is necessary that the strike was recognized as such. This occurs when:

· It is declared, excluding specified in terms of the law, procedures and requirements;

· Poses a real threat to the foundations of the constitutional system and the health of others.

Definition of SC for Civil Cases of the Supreme Court on March 14, 2007 N 56-G03-4

The Collegium for Civil Cases of the Supreme Court examined in open court March 14, 2007 on the appeal of the strike committee of the branch "Lesozavodsky" State Unitary Enterprise "Primteploenergo" the decision of the Primorsky Territory Court of 10 January 2007 on the application of the regional business of the state unitary enterprise " Primteploenergo "to recognize the strike illegal.

After hearing the report of the Judge of the Supreme Court of the Russian Federation, G., explaining representative KGUP "Primteploenergo" S., explaining Attorney General Prosecutor's Office Z., believes the court's decision be upheld, the Trial Chamber for Civil Cases of the Supreme Court established the following:

State Unitary Enterprise "Primteploenergo" appealed to the court for recognition of the illegal strike is declared to December 24, 2006 the employees of the branch "Lesozavodsky" State Unitary Enterprise "Primteploenergo," referring to the fact that the December 3, 2006 at the conference of the personnel branch demands were made to employers to increase wages to the cost of living in the Primorsky Territory employee of the 1st category, for clarification on payment of regional factor, as well as the decision to launch a strike from December 24, 2006 These claims have not been directed in writing by the due date to the employer - KGUP "Primteploenergo."

December 20, 2006 Strike Committee adopted a resolution on the beginning of December 24, 2006 an indefinite strike, while in the day offered to cut off the supply of hot water to the population and other consumers turn off the steam bath. In addition, the Strike Committee was charged to the employer to pay the additional requirements of the regional coefficient for 12 months and payment of 80-100% of the time the strike. The applicant claims that the strike is not submitted their proposals to the minimum work required.

Employees' claims 3 and 20 December 2006 were presented by the Chair of the strike committee S. employer only December 25, 2006, however, 24 December 2006 employees of the branch "Lesozavodsky" was started a strike in Lesozavodsk hot water was turned off.

The applicant asked the court to declare started December 24, 2006 the strike illegal, as the ongoing violation of the requirements of current legislation and threatening the lives and health of people.

Primorsky Krai Court decision of 10 January 2007 the application was granted [30, p. 11]

In the appeal the strike committee of the branch "Lesozavodsky" State Unitary Enterprise "Primteploenergo" Primorsky Territory Administration raised the issue of lifting solutions as rendered in violation of the rules of substantive and procedural law.

Checking the materials of the case, the Trial Chamber for Civil Cases of the Supreme Court of the grounds for cancellation of a court does not see.

In accordance with Part 4 of Art. 37 of the Constitution recognizes the right of individual and collective labor disputes with the use specified by federal law for their resolution, including the right to strike.

The procedure for settling collective labor disputes established by Chapter 61 of the Labor Code of the Russian Federation and the Federal Law "On the Procedure for the settlement of collective labor disputes."

In accordance with Part 3. 413 TC RF strike if a collective labor dispute is illegal if it is declared without deadlines, procedures and requirements stipulated by the Labour Code of the Russian Federation.

From the file is seen that the decision on the resumption of the employees of the branch "Lesozavodsky" State Unitary Enterprise "Primteploenergo" 24 December 2006 strike was taken at a conference of the labor collective of December 3, 2006

According to the protocol N 6 basis for declaring a strike and are the demands of the labor collective of the repayment of arrears of wages subject to indexation in September-November 2006, the timely payment of wages in the future, to increase wages to the cost of living in the province employee 1 - On discharge, on giving an explanation for the payment of 20% of the regional factor instead of 30% in other enterprises.

The Court correctly pointed out in the decision that these requirements were not made at the conferences on February 27 and May 7, 2006, were not subject to authorization by the collective labor dispute, and shall not conducted conciliation. In these circumstances, the case the court drew the correct conclusion that in this case we are talking about the beginning of a new strike announced in connection with the nomination of the new requirements to the employer. Because of these issues conciliation procedures have not been met, the strike correctly recognized by the court as illegal.

December 20, 2006 at a meeting of the strike committee, it was stated that the strike would be suspended only subject to the requirements adopted by the Conference, as well as addressing the issue of 80-100% payment strike, the return of the debt ratio by the district for 12 months. Thus, the strike committee at its meeting on proposed additional requirements for which are also not conducted conciliation. Thus Strike Committee not met the requirements of Art. 401 TC RF education obligatory conciliation procedures on the newly extended requirements of workers to the employer.

In accordance with Art. 412 Labour Code, within five days from the date of the decision to strike is a collective agreement between the parties to the dispute with the local authorities should be defined minimum necessary work (services) on the basis of lists of the minimum necessary work (services). The inclusion of the type of work (services) to the minimum necessary work (services) should be motivated by the probability of injury and danger of life of citizens.

In proceedings before the Court of First Instance representatives of the strike committee explained that the announcement of the resumption of December 24, 2006 issue of the definition strikes the minimum required work was not permitted, they were guided by the minimum necessary work undertaken at the conference May 7, 2006 In the meantime, this at least, made at the end of the heating season, can not be applied at the time of the strike in the winter, because it provides livelihoods of the population, and the strike itself poses a threat to human life or health.

In accordance with Art. 55 of the Constitution of the Russian Federation and the item "b" of Part 1 of Art. 413 Labour Code are illegal and are not allowed to strike the organizations associated with the provision of social life, including heating, heat and water supply, in case of strikes threaten the lives and health of people.

The court correctly concluded that the strike of the branch "Lesozavodsky" State Unitary Enterprise "Primteploenergo" is illegal.

The court's decision is lawful and justified grounds for its cancellation by the arguments of the appeal is not available.

On the basis of Articles 360, 366 Code of Civil Procedure of the Russian Federation, the Trial Chamber for Civil Cases of the Supreme Court of the Russian Federation, has determined:

Primorsky Krai Court decision of January 10, 2007 be upheld, the appeal of the strike committee of the branch "Lesozavodsky" State Unitary Enterprise "Primteploenergo" - without satisfaction.

Are illegal strike of workers of the Armed Forces, law enforcement agencies, the Federal Security Service, if this is a threat defense and national security. The decision on a collective labor dispute these workers within ten days taken by the President of the Russian Federation.

The decision on the recognition of the illegal strike is taken by the Supreme Courts of the republics, territories, regional courts, courts of the cities of Moscow and St. Petersburg, an autonomous region, autonomous areas at the request of the employer or the prosecutor.

The court's decision is communicated to employees through the body, the head of the strike, which is obliged to immediately inform him of strikers.

The court's decision on the recognition of the illegal strike, which entered into force, subject to immediate execution. Employees are required to end the strike and get to work no later than the next day after receiving the copy of the said judgment body headed by the strike.

Chapter 4. State supervision and monitoring of compliance with labor legislation

One of the main ways to protect labor rights and legitimate interests of the employees are state supervision and monitoring of compliance with labor laws.

State supervision and monitoring of compliance with labor laws and other normative legal acts containing norms of labor law in all organizations in the territory of the Russian Federation shall be exercised by the federal labor inspectorate.

State supervision over compliance with the rules of safe operation in certain sectors and in certain industrial facilities, along with the bodies of the Federal Labour Inspectorate carried out by specially authorized bodies - federal supervision.

In-house state control over observance of labor laws and other normative legal acts containing norms of labor law, subordinate organizations by the federal executive bodies, executive bodies of subjects of the Russian Federation and local self-government.

State supervision of the correct and uniform application of labor laws and other normative legal acts containing norms of labor law, Prosecutor General of the Russian Federation and subordinate prosecutors in accordance with federal law [19, p. 22]

4.1 The Federal Labour Inspectorate

The Federal Labour Inspectorate - a single centralized system of government, supervising and monitoring compliance with labor laws and other normative legal acts containing norms of labor law in the territory of the Russian Federation.

The main tasks of the Federal Labour Inspectorate are:

· Enforcement and protection of labor rights and freedoms, including the right to safe working conditions;

· Ensuring compliance by employers of labor legislation and other normative legal acts containing labor law, etc.

Claim 1 of the Federal Labour Inspection Authority

In accordance with the tasks assigned to them by federal labor inspectors implement the following main responsibilities:

· Carry out state supervision and enforcement in the organizations of the labor legislation and other normative legal acts containing norms of labor law through inspections, surveys, issue binding orders to eliminate violations, bring perpetrators to justice in accordance with federal law;

· Analyze the circumstances and causes of violations, take corrective measures and restoration of violated labor rights;

· Carried out in accordance with the legislation of the Russian Federation consideration of administrative cases;

· Summarize the practice of application, analyze the causes of violations of labor laws and other normative legal acts containing norms of labor law, prepare appropriate proposals for their improvement;

· Participate in the prescribed manner to the development of national standards for safety;

· Are receiving and considering applications, letters, complaints and other applications professionals about violations of their labor rights, are taking steps to eliminate violations and restoration of violated rights;

· Carry out information and advice to employers and employees on compliance with labor laws and other normative legal acts containing norms of labor law;

· Prepare and publish annual reports on compliance with labor laws and other normative legal acts containing norms of labor law, duly represented to the President of the Russian Federation and the Government of the Russian Federation, etc.

p.2 fundamental rights of state labor inspectors

State labor inspectors in the exercise of supervisory and control activities are eligible:

· Freely at any time of the day in the presence of a standard form of identity in order to attend the inspection organizations of all legal forms of ownership;

· Investigate in due course accidents at work;

· Bring employers and their representatives binding orders to eliminate violations of labor laws and other normative legal acts containing norms of labor law, the restoration of the violated rights of workers, bringing perpetrators of these violations to disciplinary action or to dismiss them from office in the prescribed manner;

· Suspend the operation of organizations, individual production units and equipment in case of violations of labor protection requirements, which pose a threat to life and health of employees, to eliminate these violations;

· Guide to the courts if the state examination requirements of working conditions on the Elimination of organizations or termination of their divisions as a result of violation of labor protection;

· Suspend, those that have not been duly trained in safe methods of work, training on occupational safety training in the workplace and validation of knowledge of labor protection requirements;

· Brought to administrative responsibility in accordance with the legislation of the Russian Federation, the perpetrators of violations of the laws and other normative legal acts containing norms of labor law, if necessary, to invite them to the body of labor inspection in connection with the in-production works and materials, as well as direct materials to law enforcement agencies about bringing these individuals to justice, to sue in court, etc.

Claim 3 The duties of state labor inspectors

State labor inspectors in the exercise of supervisory and control activities must abide by the Constitution of the Russian Federation, labor laws and other normative legal acts containing norms of labor law and the legal acts regulating the activities of agencies and officials of the federal labor inspectorate.

State labor inspectors are required to keep protected by the law, which has become known to them in the exercise of their powers, and after leaving his office, be considered as absolutely confidential the source of any complaint by a defect or breach of the provisions of the laws and other normative legal acts containing norms of labor law, to refrain from Posts employer information about the applicant, if the test is conducted in connection with his appeal, and the applicant objects to the employer posts the data on the source of the complaint.

Chapter 5. Problems with labor disputes

According to statistics, every thirty people working in Russia now suing for their rights with the employer. Are judged not on the little things, and when strongly pripeklo and nothing to lose. Such cases recruited about 2 million a year. In the transition to a market several times copied rights and duties of workers, trying to make them more democratic, but has not yet created a system that would make all of these to work. Were incompetent judges, lawyers, traditionally they have lost the habit to perceive the employee subject to the law.

An example of this incompetence is the following decision of the Novgorod Regional Court [34, p.21]

Case number 2 - 465/2007

SOLUTION

The name of the Russian Federation

October 5, 2007 Veliky Novgorod

Acting Magistrate court plot number 13 Novgorod region Kostyaev AA, when Secretary Fedorova YP, with the participation of the plaintiff Kuksova VF, the respondent's representative Nikitin AY, examined in open court at the suit of a civil action Kuksova VF APK to "Veliky Novgorod" for the recovery of wages, compensation for delayed payment of wages, compensation for the delay in issuing the work book

ESTABLISHED:

The plaintiff brought an action against the defendant for the recovery of wages in the amount of 37,500 rubles compensation for delayed payment of wages in the amount of 1,812 rubles, as well as compensation for the delay in issuing the work book of $ 24,000 rubles. In support of the claim stated that the 17.02.2007, he was hired as head of the transportation department maintainability poultry "Novgorod". May 17, 2007 at the end of the probationary period Kuksova VF was determined salary of 6,000 rubles and a monthly prize of 2,000 rubles. In July 2007, the plaintiff was resolved 50% of the premium, and in July the organization failed to pay the plaintiff 3,000 rubles. On 1 September 2007 the applicant was transferred to the position of mechanical engineer for maintenance and repair of motor vehicles repair and transport department with a salary of 1,500 rubles. In September 2007, the organization has not paid Kuksova VF Prize. Later, the plaintiff knew that he was completely deprived of the Award. However, with the order of deprivation Award Kuksov VF was not aware. Thus, the plaintiff has not been paid for the period from November 2007 to February 2007, salary and bonus. Kuksov continued to perform their duties. March 2, 2007 Kuksov VF wrote a letter of resignation. However, the order of dismissal was not informed of full payment and work record, he has not received.

Plaintiff Kuksov VF in court the claim is fully supported.

The defendant's representative Nikitin A., Power of Attorney in court action is not admitted, explaining that the debt APK "Veliky Novgorod" before Kuksova VF is 3596 rubles 80 kopecks, which is derived Kuksova VF July 8, 2007. Delay salary was caused Kuksova VF, which was not for her receipt, despite advising the organization on 19.12.2007 year. In addition, explained the premium is not included in the wage system, and is the only promotion of the employee. Delay of the work book also occurred through no fault of the employer, and the fault of the plaintiff, who was not for her receipt. Kuksova VF December 19 was sent to the order of dismissal and an acknowledgment of receipt of the work book.

After hearing the explanation of the complainant, the respondent's representative, having examined the written materials of the case, the court finds that the claim is not justified, and the lawsuit Kuksova VF must be denied for the following reasons.

According to the order for a job number 87 - from 18.02.2007 to year Kuksov VF recruited from 17.02.2007 years as head of RTC with a probation period of 3 months.

In accordance with the staffing APK "Veliky Novgorod", approved 01.01.2007 Kuksova VF RTC is installed as the head of salary of 2,000 rubles.

According to the order dated 26.10.2007, the number 23, for negligence of duty, gross violation of manufacturing technology RTC Kuksov VF deprived of premium surcharges for October 2007 is 100%.

According to the official lists of 17.12.2007, the mechanic Kuksov VF absent from the workplace 15 and 16 December 2007 for no good reason.

In accordance with the order of nenachislenii premium amounts Kuksov VF not to impose the premium amounts for December 2007 for violation of labor discipline - absence from work on 15 and 16 December of the year for violation of labor discipline - absence from work on 15 and 16 December of the year for violation of labor discipline - lack of workplace 15 and 16 December 2007 without a good reason.

According to the order number 1088 of 17.12.2007, the Kuksov VF Ball dismissed under paragraph "a" of Article 81 of Part 6 TKRF, and for absence from work without valid reason for more than four consecutive hours during the working day.

In accordance with Article 136 of Part 6 TKRF, wages are paid no less frequently than every two weeks to the date fixed by the rules of labor regulations, collective agreement, employment contract.

In accordance with st.140 TKRF, at the termination of the employment contract, all sums owed to the employee by the employer on the day of the employee's dismissal. If an employee on the day of dismissal did not work, then, accordingly, the amounts to be paid not later than the day after the presentation of laid-off worker demands for calculation.

Thus, the plaintiff's claim that there is a delay in the payment of wages APK "Veliky Novgorod" and that the failure was caused by the organization are unfounded, since they are not supported by the evidence and explanations are refuted by the representative of the defendant, from which it follows that in Kuksov . F. was not in the APK "Veliky Novgorod" for getting your pay after retirement, in spite of the notice sent to him. In addition, as stated in court at the time of consideration of the case Kuksova VF Received 8 July 2007 wage arrears in the amount of 3596 rubles 80 kopecks.

In accordance with Article 62 of the TKRF employment history at dismissal issued to the employee on the day of dismissal. By virtue of Art. 234TKRF delay in issuing employment record caused by the employer to the employee, deprived of the opportunity to work shall be compensated incurred in connection with property damage in the form of lost wages.

In accordance with Part 1 of Article 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances relied on as grounds for their claims and objections.

KuksovymV.F plaintiff. not provided evidence to show that the delay in issuing the work book was caused by the APK "Veliky Novgorod." This fact is confirmed by email notification and a copy of the document, according to which Kuksov VF December 24, 2007 received a letter - notification APK "Veliky Novgorod" with a proposal to get the work book, as well as the order number 1088 - to dismiss.

The plaintiff claimed that the defendant had to send him a work book in the mail is also the basis for the finding of guilt APK "Veliky Novgorod" to delay the work book. In addition, a written request for sending him to the work book Kuksov VF did not address.

By part 3 of article 62 of TKRF if the day of discharge to give the employee can not work record, in particular, in connection with the rejection of getting your hands on, the employer sends the employee a notice to appear for work-book, or to consent to its destination on mail. From the date of notification to the employer is relieved of liability for delay of delivery of the work book.

Based on the foregoing, the Court

DECIDED:

The lawsuit Kuksova VF APK to "Veliky Novgorod" for the recovery of wages, compensation for delayed payment of wages, compensation for the delay in issuing the work book - to give up.

In its decision, the court relied on an order to dismiss number 1088 dated 17.12.2007, which can not be considered as evidence and has no legal force. This order was signed by the director of factory farming "Novgorod", skinless DI According to section 9 of the Charter APK "W. Novgorod "orders of dismissal should be signed by Director General of APC - Belomestnova RN In addition, the order handed down to a clear violation of labor laws, as Kuksov VF acquainted with the Order was not, as it provides the art. 193 TC RF. Also after 17.12.2007, he continued to work at the company. This is evidenced by the documents, orders and related after December 17, 2007, which was not reflected in the decision of the court. Therefore, the order of dismissal submitted by the defendant, not only formally, but actually is not reliable evidence. Thus, the court of first instance found that as evidence and based its decision on the order of nenachislenii premium amounts for December 2007 This order also does not have legal force because:

ü In order does not have the date of its publication and rooms, under Part 5 of Article. 67 Code of Civil Procedure, a court must make sure that the document has all the relevant details.

ü passed in violation of labor laws, according to Art. 193 Labour Code Administration p / f had to request an explanation from me in writing, which was not done.

Documents submitted by the defendant can establish only the salary, but do not allow you to set the premium amount. Plaintiff has repeatedly appealed to the court with a petition for cert memo approving my wages. The court did not assist me in the reclamation of the evidence. Also at the request had not been claimed by the book of orders (orders).

The Court of First Instance in its judgment dismissed the claim due to lack of evidence. Kuksov VF - Individual, at his disposal there is no evidence necessary to prove the claims put forward. In this case, the court had to assist him in their vindication, which was not done. Moreover, the court based its decision on a document submitted by the defendant, but these documents are not legally binding, as rendered in violation of labor laws. In evaluating such documents as the court had to follow and the rules of civil procedure law, which also was not done. So did the trial findings in the decision not appropriate to the circumstances of the case.

To labor law does not remain in the shadow of other branches of the law, it is desirable to establish specialized courts focused only on labor relations. Such courts exist in almost all countries with a market economy.

Thinking about this issue is still king Alexander the second, after the abolition of serfdom, he proposed a draft law on the establishment of labor courts, which would include an equal number of judges from among the elected representatives of the workers and industrialists. Example for him were such courts in France, which introduced another Napoleon. However, after the assassination of the king in 1866, the project was abandoned in Russia.

Conflicts at work as not resolved, so do not dare to date. The court is helpless and it will be up to them as long as the case of labor disputes is not to equate the rights of the employee and the employer. There should be special rules for the protection of the rights and freedoms of citizens in the workplace, such set of rules can be labor Procedural Code (TPC). The concept of such a code created LL.D. Professor Vladimir Mironov, one of the few who know the labor law. He believes that we can solve these problems with the help of Procedure of the labor code, without going beyond the boundaries of the civil courts, just that these institutions should be replenished forensic teams who know the labor law. These teams should retire conflicts unpaid wages, seniority, insurance at work, collective agreements, agreements and other issues of labor law. The concept is still imperfect, require revision, but Mironov first moved from words to deeds, and for that he thanks a lot.

According to it the court shall consist of a professional judge and two public (one of the associations of workers, the second from the merger of the employer). All three members of the Court shall have equal rights.

Establishment in Russia of such specialized labor courts would help to:

1) the creation of real guarantees for the implementation of the constitutional rights of citizens to judicial protection in general, and labor rights, in particular;

2) ensure actual compliance requirements of procedural law in the resolution of labor disputes in court;

3) improving the legal framework for the real and rapid execution of judgments, particularly in cases involving the recovery of wages, allowances and other monetary benefits.

With wages of public judges too, not everything is OK if the employer can pay for the work of his representative, the union workers generally are not able to do it, but on a voluntary basis by experienced lawyers to work not agree.

How long can transfer legal pitfalls that emerge when considering now labor issues in the civil courts. Need to try to get and they snuck into the new reformist papers. Here is one of those traps - the territorial jurisdiction of the courts. It just so happened that all labor disputes are dumped into the court, which is located next to the company. Workers are trying to give a statement to the claims to the employer at the place of residence, but there they do not accept the statements, they, unfortunately, do not know that it is illegal, and humbly go to court, which is often associated business relationship with the company. Employer profitable to cajole a few familiar judges than to feed the whole neighborhood. From bribes we rarely refuses, seen in the corruption of the judge. Perhaps for this reason they take the side of the employer, and employees can only amaze the world community, and go to work without a salary.

Another legal injustice established after the adoption of the new Labour Code, it is that the trade unions were denied the right to represent their members without authorization. In this scenario, the employee personally embroiled in a dispute with the employer and against him arise repression by the employer.

In addition, we often fired on an emotional basis, and then during the trial begin to juggle a variety of documents. About the business records of our companies a special subject. In one region, has reviewed outgoing documents, orders of 10 business leaders were incompetent 7-8. Employers are used to allow access to the HR various liberties, it is all reflected in the design documents. There is nothing to fear, no control, no checks. Here's how one went out of court sessions to restore the person to work in Voronezh. Representatives of the employer fired the person, and it's not documented properly issued. They come from pulling the prosecutor.

-You probably have a memo about the latest violation of labor discipline by the plaintiff.

Of course - echoed the defendants.

-There is a formal opinion that the employee has recently badly treated his official duties?

Yes, - I heard from a representative of the employer.

-Bring these documents to the next meeting.

Representatives of the defendant brought all that was required. And the naked eye, it was obvious that people were in a hurry all the lime, the ink on the document barely dry. The judge is not confused, he is without any study, supplemented these securities evidence. To insure against such fraud would be worth arrest at the time of trial, some papers on the staff, then retroactively in the archive will be a variety of pieces of paper.

The process in the labor court should be much cheaper and more available than in ordinary civil. The procedure for resolving cases on labor disputes should be less formal, and the time required for business and performance solutions - shorter than is usual in ordinary civil courts. Thus, the case for reinstatement and for the recovery of wages, allowances and other payments to be settled within 1 month, and the rest - at no more than 3 months.

Conclusion

The main thing in the human rights issue today - not theoretical development and even their legislative strengthening and creation of necessary conditions, warranties, assumptions, mechanisms of implementation of human rights, particularly economic and social. It is important to eliminate the direct infringement, their causes, to put barriers in the way of abuse and arbitrariness on the rights of citizens, and to strengthen their protection and the protection of the government.

Causes of violations of rights at work a lot. One of them - the lack of a strict system of procedures and mechanisms of protection. In the legal literature differ protection and defense of the subjective right. Some authors believe that any labor law or science problem of protection of labor rights is not developed at all. Indeed, the labor legislation does not list the ways to protect labor rights. However, this does not mean their absence. Thus, methods for the protection of labor rights may include reinstatement, a strike and a few others.

In the current economic situation, workers are not at risk to openly defend their rights come into conflict with the employer. Handling of the complaint to the "host" threatens job loss. Therefore, it is often advantageous to the victim to abandon the rights given by the law than to argue.

Strikes have become a reality of our time. If ten or twelve years ago, seemed to strike an extraordinary event, the last few years, reports of these actions sound more and more often, while the number of people involved in their implementation, is growing. Undoubtedly, the strike may allow a collective labor dispute, but it will be far from a peaceful solution to the conflict. In judicial practice, a huge number of strikes are declared illegal. In most cases, they were not organized according to the laws. But sometimes employees of the enterprise (organization) are afraid to go to such extreme measures as well as any treatment of the employee (employees) to the court, not to mention the strike, the employer is regarded as undesirable and abnormal phenomenon, and often a "troublemaker" pursued them, or just do not believe in a positive result and winning the case. Perhaps this is due to distrust of the Russian judicial system, confidence in the bribery of all stakeholders, etc.

In addition, very often the workers whose rights have been violated or infringed, do not try to defend them, because they are, by virtue of their legal ignorance and lack of education, afraid to take any action. The Russian economy is currently the share of the commercial sector, and if in budget organizations Labour Code still somehow met, then there it just does not work. In small and medium-sized businesses are common civil law relations, as it is convenient to the employer (no need to comply with the minimum guarantees established in the labor law). At such small businesses are not created unions, not elected by the labor dispute, ie, There are no authorities to represent and protect the interests of employees. Legal insecurity plus legal ignorance causes people to accept any terms of the "host". Number indentured growing, and therefore increasing the number of disadvantaged workers.