Representative body of workers. If there is no trade union in the organization, is it necessary to form a representative body of workers? Who is the initiator and what is the procedure for formation and registration. Responsibility for making decisions without the participation of a representative body of workers.
Answer
1. Neither the organization nor the employees have the obligation to create a representative body of employees (Article 8 of the Labor Code of the Russian Federation)
In the absence of a representative body of employees, the employer independently approves these documents. Otherwise, the employer would be unreasonably limited in the right to adopt the necessary local acts (clause 3 of Rostrud Letter No. 2742-6-1 dated December 8, 2008).
2. If employees are not united in trade union organizations or none of them unites more than half of the employees, then at a general meeting of employees another representative or representative body from among the employees may be elected by secret ballot (Part 1 of Article 31 of the Labor Code of the Russian Federation).
The initiators are the employees themselves.
The procedure for forming and organizing the activities of a representative body is not directly regulated in the Labor Code of the Russian Federation. Therefore, employees must determine this themselves.
2. There are no sanctions for the absence of a trade union or other representative body in the organization.
The rationale for this position is given below in the materials of the “Personnel System” .
Situation: In what cases is an organization obliged to take into account the opinion of a representative body of employees that is not a trade union?
“The Labor Code of the Russian Federation directly indicates cases when an organization is obliged to take into account the opinions of employee representatives. Such representatives may be:
trade union;
other representative bodies (representatives).
This is stated in Part 1 of Article 29 of the Labor Code of the Russian Federation.
The existence of another representative body (not a trade union) is possible if:
there is no trade union in the organization;
none of the primary trade union organizations unites more than half of the employees and is not authorized to represent the interests of all employees.*
The presence in the organization of another representative body (representative) is not an obstacle to the exercise of their powers by primary trade union organizations.
Such rules are established by part 1 of article 31 of the Labor Code of the Russian Federation.
At the same time, the Labor Code of the Russian Federation distinguishes between cases when an organization:
must make a decision taking into account the opinion of the trade union;
must make a decision taking into account the opinion of the representative body of employees (Article 101, Part 3 of Article 103, Part 4 of Article 135, Part 2 of Article 136, Part 3 of Article 147, Part 2 of Article 153, Article 159, Article 190, Part 3, Article 196, Part 2, Article 221 of the Labor Code of the Russian Federation).
That is, in the first case, the organization must take into account the opinion of the trade union if it exists in the organization. Moreover, if the organization does not have a trade union, and the interests of employees are represented by another representative body (authorized representative), then it is not necessary to take into account its opinion.
In the second case, the organization is obliged to take into account the opinion of the representative body of employees. That is, for example, if there is no trade union in the organization, but there is another representative body (authorized representative), then it is necessary to take into account his opinion.*
The procedure for taking into account the opinion of the representative body of employees (representative) in some cases is directly prescribed in the Labor Code of the Russian Federation (part 3 of article 103, part 2 of article 136, part 3 of article 147, article 190, part 3 of article 196 Labor Code of the Russian Federation). For example, when drawing up shift schedules, the employer must take into account the opinion of the representative body in the manner prescribed by Article 372 of the Labor Code of the Russian Federation (i.e., in the manner prescribed for the adoption of local regulations) (Part 3 of Article 103 of the Labor Code of the Russian Federation).
Moreover, in some situations, the procedure for coordinating the decisions of the employer with the representative body is not established in the legislation (Article 101, Part 4 of Article 135, Part 2 of Article 153, Article 159, Part 2 of Article 221 of the Labor Code of the Russian Federation). In this case, the organization has the right to independently determine the procedure for taking into account the opinion of the representative body of employees and reflect it in a local regulatory document (for example, in a collective agreement). In this case, the employer has the right to use the approval procedure provided for taking into account the opinion of the trade union (depending on the decision that needs to be agreed upon).”
Hello, Ekaterina!
The regulations on the representative body of the labor collective cannot be approved by the director of the organization. At the same time, the approval of such a document by the director of the organization does not contradict labor legislation.
Legal basis for the answer:
The parties to social partnership in labor relations are employees and employers represented by duly authorized representatives (Article 25 of the Labor Code of the Russian Federation). In the situation you described, the authorized representative of the employer is the director of the organization, the authorized representative of the employees is the representative body of the labor collective.
If the regulation on the representative body of the labor collective is approved by the director of the organization, the principle of equality of the parties will be violated (Article 24 of the Labor Code of the Russian Federation), since the procedure for carrying out the activities of one party will be determined by the other party of the social partnership.
At the same time, by sending the draft regulation on the representative body of the labor collective to the director of the organization for approval, employees comply with the principle of respect and consideration of the interests of the parties (Article 24 of the Labor Code of the Russian Federation).
According to Article 37 of the Labor Code of the Russian Federation, a single representative body of the labor collective can be created by two or more primary trade union organizations, uniting in total more than half of the employees of a given employer, by decision of their elected bodies, or, if the employees of a given employer are not united in any primary trade union organizations , the general meeting (conference) of employees by secret ballot may elect another representative (representative body) from among the employees and vest him with the appropriate powers.
The legislation does not provide for the procedure for the adoption and approval of regulations or other normative acts regulating the activities of the representative body of the labor collective, however, from this norm it follows that the regulations on the representative body of the labor collective can be approved by a trade union organization or a general meeting (conference) of workers.
I would also like to draw your attention to the fact that, by virtue of Article 52 of the Labor Code of the Russian Federation, the right of workers to participate in the management of the organization directly or through their representative bodies is regulated by the Labor Code of the Russian Federation, other federal laws, constituent documents of the organization, collective agreement, agreements, therefore, the procedure for implementation activities of the representative body of the labor collective can also be defined in the charter or other constituent document of the organization, in a collective agreement, and in the absence of a trade union organization - in an agreement between the employer and the labor collective.
What is a representative body of employees, in what cases and is the organization obliged to create one?
Answer
Answer to the question:
We assume that you are interested in a representative body of workers.
A workers' representative body is a body that has the power to represent the interests of workers. As a rule, such a body is a primary trade union organization.
If an organization has two or more primary trade union organizations, a single representative body is formed. If the organization has not created a primary trade union organization, the representative body of employees may be a representative (or representative body) elected from among the employees (Article 31 of the Labor Code of the Russian Federation).
The employee representative body is created and elected directly by the employees. The organization has no obligation to create such a representative body.
Meanwhile, if the employer and employees intend to conclude a collective agreement (conduct collective negotiations), the interests of the employees must be represented by a special body: a trade union or a specially elected representative body of employees.
Details in the materials of the Personnel System:
Situation: In what cases is an organization obliged to take into account the opinion of a representative body of employees that is not a trade union?
The Labor Code of the Russian Federation directly indicates cases when an organization is obliged to take into account the opinions of employee representatives. Such representatives may be:
- other representative bodies (representatives).
Moreover, in some situations, the procedure for coordinating decisions of the employer with the representative body is not established in the legislation (, Labor Code of the Russian Federation). In this case, the organization has the right to independently determine the procedure for taking into account the opinion of the representative body of employees and reflect it in a local regulatory document (for example, in a collective agreement). In this case, the employer has the right to use the approval procedure (depending on the decision that needs to be agreed upon).
M.G. Moshkovich, lawyer
Is it worth creating a representative body of workers on the initiative “from above”
All accountants are interested in ensuring that there are no complaints against them from various government agencies conducting inspections, for example, the labor inspectorate. And the latter often insists that when approving such internal documents as regulations on wages, bonuses, and so on, it is imperative to take into account the opinion of the representative body of the organization’s employees. Let's see if the inspectors are right.
What is a representative body
Attention
The workers' representative body is not necessarily a trade union.
This is a trade union or simply a representative (or several representatives) from among the workers themselves. The powers of the latter are confirmed by the minutes of the general meeting of the organization’s employees. However, the creation of such a body is the right of workers in Articles 29, 31 of the Labor Code of the Russian Federation. That is, there may not be a representative body of workers in the organization (or the entrepreneur).
Are the regulatory authorities right in putting forward such a requirement?
When approving many local regulations (hereinafter - LNA), the employer is indeed obliged to take into account the opinion of the representative body of employees, but only if there is one Art. 8 Labor Code of the Russian Federation.
CONCLUSION
If employees took the initiative and created their own body, then taking into account its opinion in the cases named in the Labor Code of the Russian Federation is mandatory. If there is no representative body, then there can be no claims related to its absence.
The courts today reason the same way when considering a variety of disputes.
For example, Rostransnadzor referred to the organization's violation of licensing requirements, in particular, due to the fact that the organization approved the work schedules of drivers without taking into account the opinion of the representative body of workers. But the court rejected this argument, since this body was not elected in society. Resolution 17 AAS dated August 14, 2009 No. 17AP-6400/2009-AK.
In another case, the tax inspectorate tried to prove the illegality of accounting in expenses the amounts of bonuses paid on the basis of the regulations on the conditions of remuneration, approved only by the general director without taking into account the opinion of the representative body of employees. But also unsuccessfully, since there was no such body in the organization. Resolution 9 AAS dated 08.08.2011 No. 09AP-17511/2011-AK, 09AP-17512/2011-AK.
The court also rejected the employee who considered the provision on bonuses, adopted without “taking into account opinions”, illegal: the employer’s representative body had not been created. Based on this provision, the employee was paid a bonus in a smaller amount than he expected. Cassation ruling of the St. Petersburg City Court dated October 20, 2011 No. 33-15808/2011.
Is it easier to create than to argue?
Nevertheless, some zealous inspectors (from the labor inspectorate, tax and other regulatory authorities) still insist that the approval of the LNA without taking into account the opinion of the representative body is a violation. Show them the Labor Code standards if they are not familiar with them!
But, unfortunately, the administration (including the accountants and personnel officers themselves) sometimes follows the controllers’ lead. As a result, a decision was made to quickly create a representative body. After all, it seems that this is easier than proving your case in the courts.
If your management has decided to take this path, then here is an approximate course of action.
Organize a general meeting of employees (at least half of all employees must be present for a quorum). Do this during business hours to ensure attendance. If you have a large organization with an extensive branch network and it is difficult to gather everyone in one place and at the same time, then you can hold a conference of delegates pre-elected by the organization’s divisions. At least 2/3 of the elected delegates must be present. Art. 31, part 3 art. 399 Labor Code of the Russian Federation.
The representative (if we are talking about an “appointee”, then there is no need for a collegial body) must be elected by secret ballot and a simple majority of votes from the total number of those present (50% + 1 employee) Part 3 Art. 399 Labor Code of the Russian Federation. Compliance with this procedure is confirmed by the minutes of the general meeting, therefore employees must elect a secretary of the meeting to conduct it.
What is important to remember when having a representative body
So, a representative body has been elected. Let's see what kind of burden the organization takes on itself in this case.
When to take into account the opinion of a representative body
WE WARN THE MANAGER
If a representative body is created, That for approving the LNA without taking into account his opinion a fine is provided Art. 2.4, part 1 art. 5.27 Code of Administrative Offenses of the Russian Federation; Decision of the Ryazan Regional Court dated June 15, 2010:
- 30,000-50,000 rub. - for the organization;
- 1000-5000 rub. - for its leader (entrepreneur).
The answer is in all cases when the relevant norm of the Labor Code of the Russian Federation directly states this, and there are many such norms. For example, when establishing a remuneration system Art. 135 Labor Code of the Russian Federation(in particular, the size of tariff rates, official salaries, additional payments and allowances of a compensatory and incentive nature, bonus systems), when approving the regulations on certification and Art. 81 Labor Code of the Russian Federation, list of positions of workers with irregular working hours m Art. 101 Labor Code of the Russian Federation, shift schedules and Art. 103 Labor Code of the Russian Federation etc.
Forgetfulness of the administration in this matter can lead to various unpleasant consequences. Here's just one example. The order to reduce remuneration for length of service was declared illegal, since, according to the organization’s regulations, a reduction in the amount of such remuneration was possible only in agreement with the representative body of employees. The magistrate recovered the lost amounts in favor of the workers Resolution of the Presidium of the St. Petersburg City Court dated July 1, 2009 No. 44g-110/09.
How to take into account the opinion of a representative body
In some situations, when approving the LNA, the opinion of the representative body of workers must be taken into account, observing a certain procedure established by the Labor Code of the Russian Federation.
Attention
In the event of a dispute, the norms of the LNA, adopted in violation of the procedure for “taking into account opinions” established by the Labor Code, will not be applied Articles 8, 372 of the Labor Code of the Russian Federation.
This is a statement:
- shift schedule and Art. 103 Labor Code of the Russian Federation;
- payslip forms Art. 136 Labor Code of the Russian Federation;
- the size of the increase in wages for workers engaged in heavy work, work with harmful and (or) dangerous and other special working conditions Art. 147 Labor Code of the Russian Federation;
- internal labor regulations Art. 190 Labor Code of the Russian Federation;
- forms of professional training, retraining and advanced training of workers, lists of required professions and specialties Art. 196 Labor Code of the Russian Federation;
- rules and instructions on labor protection for workers in Art. 212 Labor Code of the Russian Federation.
Let us show the procedure for “taking into account opinions” in the form of a diagram.
1Part 4 Art. 372 Labor Code of the Russian Federation; 2Art. 398 Labor Code of the Russian Federation
When approving other LNAs, the employer may take into account the opinion of the non-union representative body in some other manner, the main thing is that this opinion is reflected on paper. The above procedure is always mandatory for the trade union.
Regardless of which procedure is applied, the obligation to ask the representative body's opinion does not mean that you must agree with it. However, ignoring his position can lead to trouble. This danger may seem far-fetched - after all, the representative is then “appointed” to express his consent without expressing objections. But, as they say, you need to hope for the best and assume the worst. When creating a workers' representative body, keep in mind that things can get out of control.
Firstly, workers may in principle be unaware of the possibility of protecting their labor rights through a representative body. And with the advent of this body, it is possible that some of them will want to take advantage of the new opportunities.
Secondly, employees have the right to re-elect an “appointee”, expand the composition of the representative body, join a trade union, demand that the employer conclude a collective agreement, etc.
What benefits do employee representatives have?
Employee representatives have the right to be released from work while maintaining their average earnings for the duration of collective negotiations or the resolution of a collective labor dispute (but not more than 3 months). During these same periods, there are restrictions on their dismissal at the initiative of the employer, transfer to another job and the imposition of disciplinary sanctions. Articles 39, 405 of the Labor Code of the Russian Federation. In the event of a collective labor dispute, the administration will also have to provide premises for holding a meeting (conference) to put forward demands Art. 399 Labor Code of the Russian Federation. Representatives have the right to insist on other assistance from the employer in ensuring their activities and Art. 32 Labor Code of the Russian Federation.
Sometimes the administration itself is interested in developing social partnership with employees, especially in large organizations. The presence of an active representative body of employees gives the company a reputation as a good employer, since it implies attentive attention to the needs of employees. This attracts qualified personnel and improves the moral climate.
If the director strives for such a reputation, he can easily push employees to take initiative, explaining to them the possible advantages. But if he has not yet matured to such views, then there is no need to create unnecessary problems for himself. And you can complain about the illegal decisions of the labor inspector to his supervisor, the chief state labor inspector of the Russian Federation and (or) to court Art. 361 Labor Code of the Russian Federation.
Perhaps every employer knows how to “communicate” with a trade union. And if the Labor Code of the Russian Federation does not have all the answers to questions on this topic, then a special Federal Law will help - “On trade unions, their rights and guarantees of activity.” But employers often forget that a trade union is only one of the possible representatives of employees. But there is not much information in the Code about these same “other representatives”. We decided to fill this “gap” and talk about in what situations an employer may encounter non-union employee representatives.
Why do employees need representatives at all? Of course, to establish a dialogue between workers and employers. Imagine a modern organization: a large team, relationships on the verge of conflict. The employer cannot inform employees in a timely and competent manner; employees do not provide “feedback”. Trade union representation is often perceived not as mediation and competent representation of the interests of workers, but as a negative phenomenon. In this vein, not only the workers themselves, but also employers may be interested in the presence of non-union representatives, because they have the opportunity to convey to workers, through an elected and respected representative, information about the difficult conditions of doing business, and the influence of the “laws” of the market that is often not obvious to the employee. on the financial position of the enterprise.
For an employer, the presence of a representative body of employees is essential if labor legislation imposes an obligation on it to take into account the opinions of such a representative body.
In accordance with Part 2 of Art. 8 of the Labor Code of the Russian Federation, in cases provided for by labor legislation, a collective agreement, an employer, when adopting local regulations, takes into account the opinion of the employee’s representative body (if there is one).
A collective agreement or agreements may provide for the adoption of local regulations in agreement with the representative body of workers.
At the beginning of this year, at the general meeting of the founders of our company, it was decided to terminate the employment contract with the previous director and appoint another. On the instructions of the new director, I must prepare an analytical report on the local regulations governing labor relations in force in our organization. Moreover, it is necessary not only to list them, but to divide them into groups depending on the approval procedure. On what basis should this division be made?
Differences in the procedures for adopting local regulations are most often associated precisely with the need for employee representatives to participate in this process.
Depending on the subjects involved in the creation of local regulations, the following are distinguished:
- acts adopted by the employer alone;
- acts adopted by the employer taking into account the opinion of the representative body of employees (if there is one in the organization);
- acts adopted by the employer in agreement with the representative body of employees according to the rules established by the collective agreement (if the collective agreement has been adopted by the organization and contains such rules).
In this case, it is necessary to distinguish between the procedures for taking into account the opinion of the representative body of workers and coordination with the representative body.
If it is necessary to take into account the opinion of representatives, the employer carries out a procedure for taking into account the opinion, and then there are options for making a decision.
Option 1. The local normative act is approved in a version that suits both parties.
Option 2. The local regulatory act is approved in the wording prepared by the employer, even if the employee representatives do not agree with this wording.
In a situation where a local regulatory act is adopted in agreement with the representative body of workers, the lack of its consent means that the document cannot be adopted.
Local regulations adopted by the employer taking into account the opinion of the representative body of employees include, for example:
- local regulatory act establishing the procedure for certification (Part 2 of Article 81 of the Labor Code of the Russian Federation);
- local regulatory act establishing a list of positions for workers with irregular working hours (Article 101 of the Labor Code of the Russian Federation);
- shift schedules (Article 103 of the Labor Code of the Russian Federation);
- local regulatory act establishing remuneration systems (part 4 of article 135 of the Labor Code of the Russian Federation);
- a local regulatory act establishing specific amounts of payment for work on a day off or a non-working holiday (Part 2 of Article 153 of the Labor Code of the Russian Federation);
- a local regulatory act establishing specific amounts of increased wages for work at night (Part 3 of Article 154 of the Labor Code of the Russian Federation);
- local regulatory act defining the application of labor standardization systems (Part 1 of Article 159 of the Labor Code of the Russian Federation);
- local regulatory act providing for the introduction, replacement and revision of labor standards (Part 1 of Article 162 of the Labor Code of the Russian Federation);
- internal labor regulations (part 1 of article 190 of the Labor Code of the Russian Federation);
- and etc.
Moreover, in some cases, the law specifies that not just any representative body, but the elected body of the primary trade union organization can represent the interests of workers.
In those jobs where this is necessary due to the special nature of the work, as well as when performing work the intensity of which is not the same throughout the working day (shift), the working day can be divided into parts so that the total duration of working time does not exceed the established duration of daily work . This division is carried out by the employer on the basis of a local regulatory act adopted taking into account the opinion of the elected body of the primary trade union organization (Article 105 of the Labor Code of the Russian Federation).
In some situations, there is no such clarification in the law.
So, in accordance with Art. 101 of the Labor Code of the Russian Federation The list of positions of employees with irregular working hours is established by a collective agreement, agreements or local regulations adopted taking into account the opinion of the representative body of employees.
The possibility of the existence of non-union employee representatives is provided for by law only at the local level of social partnership. Employees independently decide which representative will participate in the organization on their behalf. When electing their representatives, employees have the right to assign appropriate powers to a specific person or form a representative body. However, it is worth noting that the election of a representative body is the right and not the responsibility of employees, and if they have not taken the initiative to create a representative body, then it should be borne in mind that in accordance with the provisions of the Labor Code of the Russian Federation, the employer takes into account the opinion of the representative body of employees only if it exists .
When conducting an inspection in our organization, where there is no representative body of workers, the State Labor Inspectorate inspector insisted that our local regulations, for which labor legislation established the procedure for their adoption taking into account the opinion of the representative body of workers (for example, PVTR), were adopted in violation of current legislation about labor, since the opinion of the representative body of workers was not taken into account. Is the inspector right?
In this situation, the claims of the labor inspectorate are unfounded, since there is no representative body of workers in the organization, and it is impossible to carry out the procedure for taking into account opinions.
The courts interpret such situations clearly in favor of the employer. Thus, the cassation ruling of the St. Petersburg City Court dated October 20, 2011 No. 33-15808/2011 states the following: “The argument of the cassation appeal is that the court did not assess the legality of the Regulations on bonuses with reference to the fact that, in accordance with Art. . 135 of the Labor Code of the Russian Federation, local regulations establishing wage systems are adopted by the employer taking into account the opinion of the representative body of workers, but the defendant does not have a representative body of workers, and his opinion could not be taken into account; it has no legal significance, since if the employer does not have a representative body workers, the norms of the Labor Code of the Russian Federation on taking into account the opinions of the representative body of workers do not apply.”
Note! If the authorized representative body of employees sent a proposal to conclude a collective agreement, then the employer has no right to refuse such a proposal
In addition to the adoption and approval of local regulations, the employer, in accordance with the requirements of the law, is obliged to interact with the representative body of employees in other cases provided for by law.
In accordance with Part 1 of Art. 195 of the Labor Code of the Russian Federation, the employer is obliged to consider the application of the representative body of workers about the violation by the head of the organization, the head of the structural unit of the organization, their deputies of labor legislation and other acts containing labor law, the terms of the collective agreement, agreement and report the results of its consideration to the representative body of workers.
The employer interacts with employee representatives both during collective bargaining and in the process of adopting a collective agreement.
FORMS OF NON-UNION WORKER REPRESENTATIVES
Who, besides trade union organizations, can represent the interests of workers?
In the provisions of the Labor Code of the Russian Federation there are various formulations: “workers, represented by their representatives”, “other representatives elected by employees”, “representative body of employees”, “other representatives of employees”.
Part 1 art. 29 of the Labor Code of the Russian Federation provides that representatives of workers in social partnership are: trade unions and their associations, other trade union organizations provided for by the charters of all-Russian, interregional trade unions, or other representatives elected by employees in cases provided for by the Labor Code of the Russian Federation.
In cases where the employees of a given employer are not united in any primary trade union organizations or none of the existing primary trade union organizations unites more than half of the employees of a given employer and is not authorized to represent the interests of all workers in social partnership at the local level, at a general meeting (conference) employees, to exercise these powers, another representative (representative body) may be elected from among the employees by secret ballot (Article 31 of the Labor Code of the Russian Federation).
The legislation does not specify the forms of non-union representation. By virtue of the literal interpretation of Art. 402 of the Labor Code of the Russian Federation, persons included in the representative bodies determined in accordance with Art. 29-31 of the Labor Code of the Russian Federation, and other persons, including those who are not in an employment relationship with a specific employer.
Non-trade union representative bodies of workers can be created on the basis of the Federal Law of May 19, 1995 No. 82-FZ “On Public Associations” (hereinafter referred to as the Law on Public Associations), which gives employees of organizations the right to create public amateur bodies.
In practice, other representative bodies of workers arise in the form of women's councils, initiative groups, youth councils, and labor collective councils. Workers have the right to entrust the protection of their labor rights and interests to various human rights and other public organizations and individuals who can act as representatives. In this case, proper formalization of the powers of the representative office becomes key. At the same time, labor legislation does not contain rules establishing a universal form reflecting the transfer of authority for representation.
In joint-stock companies, the representative body in labor relations on behalf of the workforce can be the management body - the supervisory board of the company, the quantitative composition of which is determined by the company's charter or a decision of the general meeting of shareholders. The competence of the company's supervisory board, among other issues, includes resolving issues of general management of the activities of a legal entity, approving internal documents of the company, including documents on structure and personnel management. The supervisory board may also include employees.
Separately, it is worth identifying representatives of the debtor’s employees. Federal Law No. 127-FZ of October 26, 2002 “On Insolvency (Bankruptcy)” provides for the labor legal participation of employees in the management of an insolvent enterprise with the help of a representative of the debtor in meetings of creditors. In practice, bankruptcy proceedings in relation to crisis enterprises, the economic recovery of which is still possible, may be effective if the workforce is involved in it.
Part 1 art. 35 of the said Federal Law establishes that a representative of the debtor’s employees participates in the bankruptcy arbitration process, whose powers are confirmed by documents submitted to the court certifying his status. When filing a bankruptcy petition with the court, the debtor is obliged to attach to it the minutes of the meeting of its employees, at which a representative of the workers was elected to participate in the arbitration process in the bankruptcy case. The ruling of the Supreme Arbitration Court of the Russian Federation dated February 27, 2008 No. 1742/08 sets out the position according to which a representative of the debtor’s employees is elected at a general meeting of employees.
SECURING THE POWERS OF EMPLOYEE REPRESENTATIVES
Note! The powers of the employee representative are limited to the sphere of interaction between employees and the employer within the framework of social partnership relations
The public initiative body is formed at a general meeting (conference) and represents the interests of all employees. As world practice shows, these bodies are formed to exercise the right of workers to participate in the management of the organization or collective bargaining regulation of labor relations. In both cases, such bodies, upon their creation, are endowed with the appropriate powers enshrined in the minutes of the meeting or in the charter of the body. The law does not regulate the procedure for holding a general meeting, the procedure for voting and counting votes. The only requirement that is presented to another representative body (representative) is that it must be formed (elected) from among the organization’s employees.
A collective agreement is a document, the text of which is agreed upon and accepted only by persons specifically authorized to do so. Conducting collective negotiations and concluding a collective agreement is always carried out through intermediaries who conduct negotiations, work out the terms of the agreement, and reconcile disagreements. The employee has the right to choose his trusted representatives for collective bargaining. If one of the other persons does not agree with the text of the collective agreement, then he can submit his proposal for consideration by the authorized body representing the interests of employees. The workforce is introduced to the text of the finished document after its adoption in the prescribed manner.
The corresponding representative (representative body) is elected at a general meeting (conference) of employees by secret ballot. It is important to monitor the situation in practice: only employees employed by a given employer can be elected to the representative body or as a sole representative. The procedure and procedure for their election is determined by the employees themselves.
As for confirming the legitimacy of this kind of representatives, the general approaches enshrined in the Labor Code of the Russian Federation should be applied.
By the way
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The most economically developed countries of Western Europe have found the answer to the question of how to establish a dialogue between employers and employees by creating a new institution of collective labor law - works councils - a body of employee representation, the essence of which is cooperation with employers. At the national level, the most extensive and significant is the scope of powers that the German legislator has vested in works councils. At least once a month, the employer and the works council must meet to discuss issues of interest to them, with the goal of reaching agreement and resolving any differences of opinion. The parties must refrain from actions that could harm the production process. According to the German law of September 25, 2001 “On representative bodies of workers in enterprises,” the general tasks performed by works councils include:
The works council is vested with a number of rights in the field of personnel planning:
In enterprises with more than 20 employees, the employer is obliged to inform the works council about the proposed hiring of new employees, their transfers and movements. All these actions require the consent of the works council, which it may refuse. Issues on which works councils have joint decision-making rights include:
The Law on Representative Bodies of Workers in the Enterprise regulates intra-production participation, along with the participation of workers at a higher organizational level of the enterprise. While intra-industry participation is primarily aimed at protecting the worker in his or her workplace, enterprise-level participation provides a social component to the development and implementation of enterprise policies. The participation of employees in the management of business entities is limited and depends on the number of employees and the scope of the enterprise. Thus, the Federal Republic of Germany Law of 1976 “On the participation of employees in the management of an enterprise” is applied in business companies with more than 2000 employees. In this case, the supervisory board of the business company consists half of representatives of employees and half of representatives of the company’s shareholders. The number of members of the supervisory board depends on the total number of employees and can be 12, 16 or 20 representatives. At enterprises in the mining, steel and ferrous metallurgy industries, the provisions of the Federal Republic of Germany Law of May 21, 1951 “On participation in the management of an enterprise in the mining and metallurgical industry” apply. Provided that the number of employees is at least 1000, the supervisory board consists, as a rule, of five employee representatives and five shareholder representatives. They must select one representative who, if possible, should be impartial. At enterprises with a number of employees of at least 500, but not more than 2000, the provisions of the German Law of May 18, 2004 “On a supervisory board consisting of one-third representatives of employees” apply. The provisions of the law mainly concern business companies with more than 500 employees. Companies with less than 500 employees are covered by this law if they were registered before 08/10/1994 and are not family joint-stock companies. The provisions of this law provide that the supervisory board must consist of one-third employee representatives elected from among all employees. Recently, interest in non-union representation of workers has increased, including due to drawing attention to foreign experience. The creation of a new system of employee representation may well become a reality in the near future, given that a significant part of Eastern European countries have already adopted the experience of non-union employee representation bodies created in Germany at the beginning of the 20th century. |
Thus, a meeting is considered valid if more than half of the employees are present. The conference is considered valid if at least two thirds of the elected delegates are present (Article 399 of the Labor Code of the Russian Federation).
Accordingly, authority must be confirmed by the minutes of a meeting or conference of employees.
Sometimes the employer himself is interested in developing social partnership, since the presence of an active representative body of employees creates a positive reputation for the company and attracts qualified personnel.
POWERS OF THE REPRESENTATIVE BODY OF WORKERS
Based on the meaning of the provisions of the Labor Code of the Russian Federation on social partnership, which establish the main forms of participation of workers in the management of the organization, the following powers of representative bodies of workers can be identified:
- taking into account the opinion of the representative body of employees;
- holding consultations with the employer;
- obtaining information from the employer on issues directly affecting the interests of employees;
- discussing with the employer issues about the organization’s work and making proposals for its improvement;
- participation in the development and adoption of collective agreements;
- the right to receive information from the employer on issues of reorganization and liquidation of the organization, technological changes entailing changes in the working conditions of employees, professional training, retraining and advanced training of employees, making proposals on the above issues to the management bodies of the organization;
- participation in meetings of the organization’s management bodies when considering these issues. Employee representatives take part in various forms in resolving collective disputes. On an equal basis, they are members of the conciliation commission (a temporary body for the consideration of a collective labor dispute), which is created from representatives of the parties to a collective labor dispute on an equal basis within three working days from the moment it begins.
RESPONSIBILITY OF WORKER REPRESENTATIVES
For the employer, the issue of liability of employee representatives is of particular importance, which is very limited.
Articles 54-55 of the Labor Code of the Russian Federation provide for the liability of representatives of the parties for evading participation in collective negotiations, failure to provide information necessary for conducting collective negotiations and monitoring compliance with the collective agreement, as well as for violation or non-fulfillment of the collective agreement.
Article 417 of the Labor Code of the Russian Federation provides for a special case of liability of a representative body of workers for illegal strikes, namely: a representative body of workers that declared and did not stop a strike after it was declared illegal is obliged to compensate for losses caused to the employer by the illegal strike at its own expense in the amount determined by the court.
It should be borne in mind that other representatives of workers operating in the role of collective entities, not related to trade unions, according to the current norms of the Code of Administrative Offenses of the Russian Federation cannot be subjects of administrative liability due to their lack of the status of legal entities.
If the representative body of workers does not have the rights of a legal entity, the obligation to compensate for losses caused to the employer by an illegal strike may be assigned to its managers.
The literal wording of Art. 417 of the Labor Code of the Russian Federation indicates the intention of the legislator to establish the possibility of holding the representative body of workers as a whole, and not its individual members, accountable. Regarding this norm, there is an opinion that only a trade union organization that declared and did not stop an illegal strike can be brought to such liability if it has the right of a legal entity, and other representatives of workers, not having the rights of a legal entity, cannot bear property liability.
However, there is also an opinion that in such cases it is possible for subjects of property liability to be recognized not only by representative bodies of workers, but also by individual members of strike committees. This is due to the fact that, in accordance with Art. 41 of the Law on Public Organizations, in the event of a violation of the legislation of the Russian Federation by public associations that do not have the rights of a legal entity, persons who are members of the governing bodies of these associations bear responsibility for these violations.
An effective type of liability for employee representatives in the event of failure or improper performance of their representative functions can be a mechanism for recalling or replacing employee representatives.
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Magazine: Personnel Directory, As of: 12/10/2012, Year: 2013, Number: No. 1
- HR records management