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UDC 351.3 BBK (U) 65.2 / 4-6

K63 Official commentary to the Labor Code Russian Federation / Rev. ed. A.L. Safonov. – M.: MTsFER, 2006. – 1328 p. - (Library of the journal "Handbook of Personnel Officer", 19–2006).

ISBN 5-7709-0438-0

On June 30, 2006, the President of the Russian Federation signed Federal Law No. 90-FZ “On Amendments to the Labor Code of the Russian Federation, Recognition of Certain Regulatory Legal Acts of the USSR as Invalid on the Territory of the Russian Federation and Repealed Certain Legislative Acts (Provisions of Legislative Acts) of the Russian Federation.” This Law introduced significant changes to the current Labor Code of the Russian Federation.

AT This edition contains article-by-article comments on the new version of the Code, prepared by its developers and representatives of official bodies. The undoubted advantage of the comments is their applied nature, as well as a detailed consideration of the amendments made to the Code.

AT The book provides detailed guidance on the application of the provisions of the Code.

UDC 351.3 BBK (U) 65.2 / 4-6

Project leaders

M.Yu. Zurabov - Minister of Health and Social Development of the Russian Federation

A.K. Isaev - Chairman of the State Duma Committee on Labor and Social Policy

M.V. Shmakov - Chairman of the Federation of Independent Trade Unions of Russia

O.V. Eremeev - Chairman of the Coordinating Council of Russian Employers' Associations, Deputy Chairman of the State Duma Committee on Labor and Social Policy

Responsible editor

A.L. Safonov - Director of the Department of Labor Relations and the State Civil Service of the Ministry of Health and Social Development of Russia, Doctor of Economics, Professor

LIST OF ABBREVIATIONS

Arbitration Procedure Code of the Russian Federation

BC RF - Budget Code of the Russian Federation SAC RF - Supreme Arbitration Court of the Russian Federation Supreme Court of the Russian Federation CC RF - Civil Code of the Russian Federation

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

Goskomtrud of the USSR - the State Committee of the USSR on Labor and Social Affairs (until August 1976 - the State Committee of the Council of Ministers of the USSR on Labor and wages)

ETKS - Unified Tariff qualification guide jobs and occupations of workers

Law No. 79-FZ - Federal Law No. 79-FZ of July 27, 2004 “On the State Civil Service of the Russian Federation”

Law No. 90-FZ - Federal Law No. 90-FZ of June 30, 2006 “On Amendments to the Labor Code of the Russian Federation, Recognition of Certain Regulatory Legal Acts of the USSR as Invalid on the Territory of the Russian Federation and Repealed Certain Legislative Acts (Provisions of Legislative Acts) of the Russian Federation ”

Law No. 122-FZ - Federal Law No. 122-FZ dated August 22, 2004 "On Amendments to the Legislative Acts of the Russian Federation and the Repeal of Certain Legislative

List of abbreviations

acts of the Russian Federation in connection with the adoption of federal laws "On the introduction of amendments and additions to the Federal Law" On the general principles of the organization of legislative (representative) and executive bodies of state power of the constituent entities of the Russian Federation "and" On the general principles of the organization of local self-government in the Russian Federation ""

Labor Code of the Russian Federation - Land Code of the Russian Federation Labor Code of the Russian Federation - Code of Labor Laws of the Russian Federation

Code of Administrative Offenses of the Russian Federation - Code of the Russian Federation on Administrative Offenses

RF CC - Constitutional Court of the Russian Federation CCC - Commission on Labor Disputes ILO - International Labor Organization Minimum wage - Minimum wage

Tax Code of the Russian Federation - Tax Code of the Russian Federation PFR - Pension Fund of the Russian Federation

RTK - Russian Tripartite Commission for the Regulation of Social and Labor Relations

SZ (USSR, RF) - Collection of legislation of the USSR or the Russian Federation

RF IC - Family Code of the Russian Federation Labor Code of the Russian Federation, Code - Labor Code of the Russian Federation Criminal Code of the Russian Federation - Criminal Code of the Russian Federation

PART ONE

SECTION I. GENERAL PROVISIONS

Chapter 1. BASIC PRINCIPLES OF LABOR LEGISLATION

Article 1. Goals and objectives of labor legislation

The objectives of labor legislation are to establish state guarantees of labor rights and freedoms of citizens, create favorable working conditions, protect the rights and interests of workers and employers.

The main tasks of labor legislation are to create the necessary legal conditions for achieving optimal coordination of the interests of the parties to labor relations, the interests of the state, as well as the legal regulation of labor relations and other directly related relations in terms of:

labor organization and labor management; employment with this employer;

professional training, retraining and advanced training of employees directly from this employer;

social partnership, collective bargaining, conclusion of collective agreements and agreements;

the participation of employees and trade unions in the establishment of working conditions and the application of labor legislation in cases provided for by law;

liability of employers and employees in the labor sphere;

supervision and control (including trade union control) over compliance with labor laws (including

on labor protection) and other normative legal acts containing labor law norms;

resolution of labor disputes; compulsory social insurance in cases stipulated by

ny federal laws.

COMMENT

1. In the process of transition to a market economy, there are many difficulties associated with the legal regulation of social relations. The market cannot exist without the labor market, and the market economy cannot exist without the use of this labor. Everything else depends on the effectiveness of this application.

In turn, the relations arising in the sphere of labor require legal regulation. The level of development of society is largely determined by the effectiveness of the legal regulation of social relations. The human right to work is one of the basic human rights, and the state of legislation and the actual state of affairs in the field of the implementation of this right are not only an indicator of the civilized society, but also directly affect the efficiency of its economy.

Of course, it would be a big mistake to consider the issues of regulating relations in the sphere of labor in isolation from the general problems of macro- and microeconomics, from social problems. Any problems can and should be solved only in a complex. Nevertheless, each of the branches of legislation has its own specific methods of influencing the social relations it regulates. In this regard, labor law continues to play its specific role.

2. Labor legislation is essentially social legislation, and labor law is “social protection law”. The state recognizes that an employee is an economically weaker figure than an employer.

Citizens can exercise their right to work in various forms. The vast majority of the population in all countries of the world are employees. Unlike employers, they are not subjects of economic activity, within the framework of relations regulated by labor legislation, they are subject to the "master's power" of the employer, and that is why they need legal protection from the state.

At the same time, at the present stage of development of society and law, attention is focused on the need to take into account the interests of both

parties to labor relations and the interests of the state, which, in accordance with Art. 7 of the Constitution of the Russian Federation is social. This means that its policy is aimed at creating conditions that ensure a decent life and free development of a person.

3. The specificity of the legal regulation of labor lies, in particular, in the fact that it combines public law and private law principles.

In accordance with the commented article, the purpose of labor legislation is to establish state guarantees of labor rights

and freedoms of citizens, creation of favorable working conditions, protection of the rights and interests of workers and employers. Of course, we are talking about legitimate rights and interests.

Labor legislation is tasked with creating the necessary legal conditions to achieve a reasonable balance of interests of the parties to labor relations, the interests of the state, as well as the legal regulation of labor relations and other directly related relations.

4. The subject of any branch of law are social relations specific to this branch.

The subject of labor law does not include all labor-related relations, but only those social and labor relations that arise in connection with the direct activities of people in the labor process, with the performance of work. These relations are associated with the use of hired labor and arise between employees and employers (in some cases, representatives of employees and employers, as well as the state represented by its bodies, may take part in these relations).

Today, the circle of these relations is established at the legislative level. Practically Art. 1 of the Labor Code of the Russian Federation clearly defines the subject of labor law, referring to it, in addition to labor relations proper, other social relations closely related to them. Relations of this kind characterize various aspects of the use of hired labor, and in general form the basis public organization labor.

5. The complex of relations that make up the subject of labor law is based on individual labor relations (more precisely, labor relations, since in each individual case its parties are a specific employee - an individual and a specific employer - most often a legal entity).

An employment relationship is a relationship based on an agreement between an employee and an employer on the personal performance of work.

com for the payment of the labor function (work according to the position in accordance with staffing, professions, specialties indicating qualifications; specific type of work entrusted to the employee), subordination of the employee to the rules of internal work schedule when the employer provides the working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract (see Article 15 of the Labor Code of the Russian Federation and commentary thereto).

6. In addition to labor relations proper, labor legislation regulates other relations directly related to

With labor: property, managerial (organizational) and protective.

These relations may precede, accompany or replace precisely the labor relation. Without it, they cannot exist. These relationships have both common features and distinctive, characteristic only for them.

7. The regulation of relations on the organization of labor and its management is an obligatory companion of labor relations, since they largely determine the algorithm of interaction between the employer and the employee, between the employees themselves in the process of joint work.

8. Traditionally, the problems of employment and employment were included in the subject of labor law. Article 2 of the Labor Code of the Russian Federation names among the principles of legal regulation of labor relations and other directly related relations such a principle as protection against unemployment and assistance in finding employment.

At the present stage of development of society, a practically new branch of law is gradually being formed, which includes relations for employment and employment. Legislation and other regulatory legal acts regulating issues of employment and employment make up a significant volume, include as subjects not only the parties to labor relations, but also citizens who are looking for work or have lost it, state and non-state bodies and organizations dealing with these issues.

To a certain extent, the independence of these two industries is confirmed by the Classifier of legal acts, approved. Decree of the President of the Russian Federation of March 15, 2000 No. 511, as well as the commented article of the Code.

Therefore, the legislator left within the framework of labor legislation (and the subject of labor law) only those relations that

related to employment with a particular employer. Sometimes these relations precede labor relations (for example, during competitive selection of personnel), sometimes they accompany (search for another job for the employee during transfers or dismissal), they can replace them (when, for example, the employer sends the employee for training and then employs ).

9. The employer is interested in having qualified personnel work for him. In addition, in some cases, he is obliged to organize the training and retraining of his employees. Therefore, the issues of professional training, retraining and advanced training of employees are included in the circle of relations regulated by labor legislation.

10. The ideas of social partnership in the sphere of labor run like a “red thread” through all labor legislation, they permeate almost all institutions of labor law; II Labor Code of the Russian Federation (see comments to Ch. 3–9 of the Labor Code of the Russian Federation).

Closely related to the institution of social partnership are relations on the participation of workers and trade unions in the establishment of working conditions and the application of labor legislation. Moreover, ch. 8 of the Labor Code of the Russian Federation, which is specifically devoted to these issues, is included in the section on social partnership. It should be borne in mind that this participation is carried out in cases provided for by law.

11. Legal responsibility is an integral element of the legal system, part of the mechanism for the implementation of the rights and obligations of subjects of legal relations, one of the most important guarantees for the implementation of these rights and obligations. The equality of the parties to labor relations should also be reflected in their mutual responsibility.

Legal regulation of relations on the liability of the parties employment contract designed to protect their interests

in case of damage by the other party.

Liability is a specific type of legal liability, which differs significantly in the mechanism of action from its other types.

12. The effectiveness of legal norms is tested on the “touchstone of conflict”. Often, as long as there is no conflict, social relations can be regulated without applying the rules of law or with violations of these rules. But as soon as a conflict arises, as soon as it reaches a stage at which the intervention of special bodies with the authority to resolve this conflict is necessary, then the participants in public relations inevitably face

questions: “How effective is the mechanism of supervision and control by the state over the functioning of certain socially significant relations? How realistic are the rights and legitimate interests of the participants in these relations? Is the existing mechanism of such protection effective?”

These issues are regulated by labor legislation within the framework of relations for supervision and control over compliance with labor legislation (including labor protection legislation) and other regulatory legal acts containing labor law norms. The specificity of labor legislation is that control in this area is carried out not only by state bodies, but also by trade unions.

13. The solution of issues in the related field is facilitated by the legal regulation of relations to resolve labor disputes - individual and collective.

14. New edition of Art. 1 of the Labor Code of the Russian Federation clarified that the circle of relations directly related to labor includes relations on compulsory social insurance in cases provided for by federal laws.

In fact, there is nothing new here. These relations have always in fact been most closely connected with labor,

a Ensuring the right to compulsory social insurance of employees was initially included in the main principles of the legal regulation of labor relations and other relations directly related to them (Article 2 of the Labor Code of the Russian Federation).

Article 2. Basic principles of legal regulation of labor relations and other relations directly related to them

Based on the generally recognized principles and norms of international law and in accordance with the Constitution of the Russian Federation, the main principles of legal regulation of labor relations and other directly related relations are recognized:

freedom of labor, including the right to work, which everyone freely chooses or freely agrees to, the right to dispose of their abilities for work, to choose a profession and type of activity;

prohibition of forced labor and discrimination in the sphere of work; unemployment protection and employment assistance; Ensuring the right of every employee to fair conditions

labor, including working conditions that meet the requirements of safety

safety and hygiene, the right to rest, including the limitation of working hours, the provision of daily rest, days off and non-working holidays, paid annual leave;

equality of rights and opportunities for employees; ensuring the right of each employee to timely and in full

a nominal amount of payment of a fair wage, ensuring a worthy existence for a person for himself and his family,

and not lower than the established federal law the minimum wage;

ensuring equality of opportunities for employees without any discrimination for promotion at work, taking into account labor productivity, qualifications and work experience in the specialty, as well as for vocational training, retraining and advanced training;

ensuring the right of workers and employers to associate to protect their rights and interests, including the right of workers to form and join trade unions;

ensuring the right of employees to participate in the management of the organization in the forms provided for by law;

a combination of state and contractual regulation of labor relations and other relations directly related to them;

social partnership, including the right to participation of employees, employers, their associations in the contractual regulation of labor relations and other directly related relations;

obligatory compensation for harm caused to the employee in connection with the performance of his labor duties;

establishing state guarantees to ensure the rights of workers and employers, exercising state supervision

and control over their observance;

ensuring the right of everyone to protection by the state of his labor rights and freedoms, including judicial protection;

ensuring the right to resolve individual and collective labor disputes, as well as the right to strike in the manner prescribed by this Code and other federal laws;

the obligation of the parties to the employment contract to comply with the terms of the concluded contract, including the right of the employer to demand from employees the performance of their labor duties and careful attitude to the property of the employer and the right of employees to demand that the employer comply with his obligations in relation to employees, labor legislation and other acts containing labor law norms;

ensuring the right of representatives of trade unions to exercise trade union control over compliance with labor legislation and other acts containing labor law norms;

ensuring the right of employees to protect their dignity during the period of employment;

ensuring the right to compulsory social insurance of employees.

COMMENT

1. The principles of law are the most important legal category. They are traditionally understood as guidelines (ideas), starting points expressing the essence and social purpose of law. Principles permeate legal norms, are the core of the entire system of law.

2. General legal, sectoral, intersectoral, intra-industry principles (principles of institutions) have not only and not even so much theoretical significance. They are important primarily in practical terms, since they are an effective legal tool that allows solving a number of problems simultaneously.

The main goal of legal principles is to ensure the unity of legal regulation in a particular area of ​​social relations.

Principles of law in general and branches of law and legislation,

in in particular, they make it possible to systematically build a set of legal norms that make up both the legal system as a whole and its individual branches.

3. Being a more stable category than legal norms, principles are not subject to momentary market changes (which is often the case for both legal norms and legal acts in general).

Therefore, first of all, the practical significance of the principles is manifested at the stage of law-making. Comprehensive regulation of a group of social relations is impossible without observance of objectively formulated principles. A rule of law created artificially, without taking into account the existing principles in their interconnection, is doomed to inefficiency.

4. Principles play a crucial role at the enforcement stage. The Russian legal system gravitates toward a normative approach to regulating social relations, focused on finding a specific legal norm to solve a specific problem. However, it is not always possible to “regulate” all the nuances of social relations (law is not a frozen

“encyclopedia”, but living matter). And then there are gaps in the legal system or simply situations that need interpretation. These gaps (before their subsequent settlement by legal norms) can be successfully filled with the help of legal principles. This is especially important when considering specific legal disputes by jurisdictional bodies.

5. From a practical point of view, the approach in which the basic principles of law are reflected directly in legislation is especially valuable. That's how it should be treated

to Art. 2 of the Labor Code of the Russian Federation, which formulates the basic principles of legal regulation of labor relations and other directly related relations.

6. The commented article lists 19 principles. However, in practice, some other principles additional to those indicated in this article can be formulated.

Moreover, the principles can be formulated not only at the level of the branch of labor law. For example, sectoral principles can be legally expressed (see Article 24 of the Labor Code of the Russian Federation), or they can be substantiated doctrinally, through scientific analysis (for example, the principles of the “Labor Agreement” institute, the principles of the “Transfer to another job” sub-institution).

The Supreme Court of the Russian Federation also points to the need to take into account legal principles. So, in the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, the attention of the courts is drawn to the need to take into account the general legal principle of the inadmissibility of abuse of the right, including by the employees themselves; the constitutional principle of the equality of all before the law and the courts; such general principles of legal, and therefore disciplinary, responsibility as justice, equality, proportionality, legality, guilt, humanism (see paragraphs 27, 29, 53 of the resolution).

7. It is important that principles cannot be formed absolutely arbitrarily, the composition of principles at each level is determined by objective necessity (it is impossible to create “principles for the sake of principles”). In addition, the system of principles (as well as the system of legal norms that make up this or that branch) is largely hierarchical.

That is why the principles set forth in Art. 2 of the Labor Code of the Russian Federation, which formulated the foundations for the legal regulation of relations related to the use of hired labor. Some of these principles

principles are further specified in the articles of the Code (see, for example, articles 3, 4, 24 of the Labor Code of the Russian Federation), some serve as the basis for formulating the provisions of the Labor Code of the Russian Federation and other federal laws, laws of the constituent entities of the Russian Federation, other acts containing labor law norms.

8. The position fixed

in Art. 2 of the Labor Code of the Russian Federation: the principles of legal regulation of labor and other relations directly related to them are the main ones precisely because they are formulated on the basis of generally recognized principles and norms of international law and in accordance with the Constitution of the Russian Federation.

9. In accordance with paragraph 4 of Art. 15 of the Constitution of the Russian Federation, the generally recognized principles and norms of international law, as well as international treaties of the Russian Federation, are an integral part of its legal system.

When resolving labor disputes, the courts take into account, in particular, the clarifications given by the Decree of the Plenum of the Supreme Court of the Russian Federation dated October 10, 2003 No. 5 “On the application by courts of general jurisdiction of generally recognized principles and norms of international law and international treaties of the Russian Federation”.

Thus, it notes that the universally recognized principles of international law should be understood as the fundamental imperative norms of international law accepted and recognized by the international community of states as a whole, deviation from which is unacceptable (paragraph 1 of the resolution).

10. The universally recognized principles of international law, in particular, include the principle of universal respect for human rights and the principle of conscientious fulfillment of international obligations.

A generally recognized norm of international law should be understood as a rule of conduct accepted and recognized by the international community of states as a whole as legally binding.

11. An international treaty is subject to application if the Russian Federation, represented by competent state authorities, has expressed its consent to be bound by an international treaty through one of the actions listed in Art. 6 of the Federal Law of July 15, 1995 No. 101-FZ “On International Treaties of the Russian Federation” (by signing an agreement; exchanging

the documents constituting the contract; ratification of the treaty; approval of the contract; acceptance of the contract; accession to the treaty; in any other way agreed upon by the contracting parties), as well as on the condition that the said agreement has entered into force for the Russian Federation.

12. In case of difficulties in interpreting the generally recognized principles and norms of international law, international treaties of the Russian Federation, recommend that the courts use the acts and decisions of international organizations, including UN bodies and its specialized agencies, and also contact the Legal Department of the Ministry of Foreign Affairs of the Russian Federation, the Ministry of Justice of the Russian Federation (for example, to clarify issues related to the duration of an international treaty, the composition of the states participating in the treaty, international practice its application) (clause 16 of the resolution of the Plenum of the RF Armed Forces dated 10.10.2003 No. 5).

13. Russia is a full-fledged member of the world community and, having assumed international obligations, it fulfills them. Therefore, the obligations enshrined in the most important international legal instruments adopted at various levels.

First of all, these are the fundamental acts of the UN devoted to human rights: the Universal Declaration of Human Rights (1948); International Covenant on Economic, Social and Cultural Rights (1966); International Covenant on Political and Civil Rights (1966).

When comparing these documents with the norms of Russian labor legislation, one can see that it does not contradict international legal norms, that these principles and specific norms are reflected in it.

14. Thus, the Universal Declaration of Human Rights enshrines the following rights related to wage labor (Articles 23, 24):

(a) Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection from unemployment;

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

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

d) everyone has the right to form trade unions and join trade unions to protect their interests;

e) everyone has the right to rest and leisure, including the right to a reasonable limitation of the working day and to paid holidays.

15. The most important directions international legal regulation of labor are specified and further developed

in activities of the ILO. Among the fundamental documents adopted by this organization are the Declaration on the Aims and Objectives of the International Labor Organization (1944) and the ILO Declaration on Fundamental Principles and Rights at Work (1998).

16. The principles listed in the commented article of the Code can be classified on various grounds.

So, one group can include principles that characterize the rights of an employee that are inherent in him as a person, a citizen:

a) freedom of work, including the right to work, which everyone freely chooses or freely agrees to, the right to dispose of their abilities for work, to choose a profession and type of activity;

b) the prohibition of forced labor and discrimination in the sphere of labor (see comments to articles 3 and 4 of the Labor Code of the Russian Federation);

c) unemployment protection and employment assistance.

17. Another group consists of principles that determine the status of an employee and an employer as participants in labor relations, as subjects of law who have entered into an employment contract:

a) ensuring the right of every employee to fair working conditions, including working conditions that meet the requirements of safety and hygiene, the right to rest, including the limitation of working hours, the provision of daily rest, days off and non-working holidays, paid annual leave;

b) equality of rights and opportunities for employees; c) ensuring the right of each employee to timely

and in full payment of a fair wage, ensuring a worthy existence for a person for himself and his family, and not lower than the minimum wage established by federal law;

d) ensuring equal opportunities for employees, without any discrimination, for advancement in work, taking into account labor productivity, qualifications and work experience in the specialty, as well as for professional training, retraining and advanced training;

e) the obligation to compensate for harm caused to the employee in connection with the performance of his labor duties;

f) the obligation of the parties to the employment contract to comply with the terms of the concluded contract, including the right of the employer to demand from employees the performance of their labor duties and careful attitude to the property of the employer and the right of employees to demand that the employer comply with his obligations in relation to employees, labor legislation and other acts containing labor standards rights (these principles permeate almost all aspects of concluding, amending and terminating an employment contract).

18. Principles related to the regulation of collective rights: a) ensuring the right of workers and employers to associate in order to protect their rights and interests, including the right of workers

create trade unions and join them; b) ensuring the right of employees to participate in the management of the organization

nization in the forms prescribed by law; c) social partnership, including the right to participate in work-

employees, employers, their associations in the contractual regulation of labor relations and other relations directly related to them (see Section II of the Labor Code of the Russian Federation and comments thereto);

19. Principles reflecting the specifics of state regulation in the field of wage labor:

a) a combination of state and contractual regulation of labor relations and other relations directly related to them;

b) the establishment of state guarantees to ensure the rights of workers and employers, the implementation of state supervision and control over their observance (see Chapters 56–57 of the Labor Code of the Russian Federation and comments thereto);

c) ensuring the right of everyone to state protection of his labor rights and freedoms, including judicial protection (see Chapter 60 of the Labor Code of the Russian Federation and comments thereto);

d) ensuring the right to resolve individual and collective labor disputes, as well as the right to strike in the manner prescribed by the Labor Code of the Russian Federation and other federal laws (see Chapters 60–61 of the Labor Code of the Russian Federation and comments thereto);

e) ensuring the right of representatives of trade unions to exercise trade union control over compliance with labor legislation and other acts containing labor law norms (see Chapter 58 of the Labor Code of the Russian Federation and comments thereto);

f) ensuring the right of employees to protect their dignity during the period of employment;

g) ensuring the right to compulsory social insurance of employees.

Everyone has equal opportunities to exercise their labor rights.

No one may be limited in labor rights and freedoms or receive any advantages, regardless of gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence, attitude to religion, political beliefs, belonging or not belonging to public associations, as well as from other circumstances not related to the business qualities of the employee.

Establishing differences, exceptions, preferences, as well as restriction of the rights of employees, which are determined by the requirements inherent in this type of labor established by federal law, or are due to the special concern of the state for persons in need of increased social and legal protection, is not discrimination.

Persons who believe that they have been discriminated against in the sphere of labor have the right to apply to the court for the restoration of violated rights, compensation for material damage and compensation for moral damage.

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S.N. Baburin, A.A. Gliskov, A.G. Gliskov, A.I. Zabeyvorota
Commentary on the Labor Code of the Russian Federation. Article by article. Scientific and practical. With clarifications from official bodies and article-by-article materials. Current edition 2017

© S.N. Baburin, 2017

© A.A. Gliskov, 2017

© A.G. Gliskov, 2017

© A.I. Zabeyvorota, 2017

© Book World, 2017

List of accepted abbreviations and designations

APK RF - Arbitration Procedure Code of the Russian Federation

AGPC RF - Agro-industrial complex of the Russian Federation

BVS RF (USSR, RSFSR)– Bulletin Supreme Court Russian Federation (USSR, RSFSR)

BMT - Bulletin of the Ministry of Labor and Social Development of the Russian Federation

BNA (USSR, RSFSR, RF)– Bulletin of normative legal acts (of ministries and departments; federal executive bodies)

Vedomosti SND and RF Armed Forces (RSFSR)– Gazette of the Congress of People's Deputies and the Supreme Soviet of the Russian Federation (RSFSR)

RF Armed Forces - Supreme Court of the Russian Federation

AUCCTU - All-Union Central Council of Trade Unions

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

GPC - Civil Procedure Code of the Russian Federation

CEN - Unified qualification directory of positions of managers, specialists and employees

ETKS - Unified Tariff and Qualification Directory of Works and Professions of Workers

Code of Administrative Offenses of the Russian Federation - Code of the Russian Federation on Administrative Offenses

CC RF - Constitutional Court of the Russian Federation

KTS - Commission on Labor Disputes

Ministry of Foreign Affairs of the Russian Federation - Ministry of Foreign Affairs of the Russian Federation

Ministry of Health and Social Development of Russia - Ministry of Health and Social Development of the Russian Federation

ILO - The International Labour Organization

minimum wage - The minimum wage set by federal law

Tax Code of the Russian Federation - Tax Code of the Russian Federation

OSPS ZR - All-Russian licensed monthly updated reference legal system "Legislation of Russia" of the publishing house "ELEX"

Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 - Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (as amended of September 28, 2010 No. 2)

Decree of the Plenum of the Armed Forces of the Russian Federation of November 16, 2006 No. 52 - Decree of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52 “On the application by the courts of legislation governing the liability of employees for damage caused to the employer” (as amended by the Decree of the Plenum of the Supreme Court of the Russian Federation of September 28, 2010 No. 22)

RISOT - Russian Information system labor protection

Rosstat - Federal State Statistics Service of the Russian Federation

Rostrud - Federal Service for Labor and Employment of the Russian Federation

RSPS - Russian Union of Industrialists and Entrepreneurs

NW RF - Collection of legislation of the Russian Federation

RF IC - Family Code of the Russian Federation

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

PEC RF - Criminal Executive Code of the Russian Federation

Criminal Code of the Russian Federation - Criminal Code of the Russian Federation

Code of Criminal Procedure - Code of Criminal Procedure of the Russian Federation

FGU - federal government agency

FSUE - Federal State Unitary Enterprise

FZ - the federal law

FKZ - federal constitutional law

FMS of Russia - The Federal Migration Service

FTS of Russia - The Federal Tax Service

FSS RF - Social Insurance Fund of the Russian Federation

Central Committee of the CPSU - Central Committee of the Communist Party of the Soviet Union

Foreword

With the development and improvement of market relations in the Russian Federation and the increasing role of the state in their legal regulation (improving the mechanism of market relations), there is a need to comprehend the new role of labor legislation not only in the system of Russian law in particular, but also in the system of new industrial relations in general.

The presented Scientific and Practical Commentary to the Labor Code of the Russian Federation is the most complete of all previously published.

The commentary was prepared by scientists and practicing lawyers.

The commentary is written in a simple, accessible language for all readers.

The authors used not only extensive international and federal legislative bases, but also the legislative bases of the constituent entities of the Russian Federation and municipalities, as well as judicial practice; give concrete examples of the application of labor law norms, show ways to improve certain norms of the Labor Code of the Russian Federation.

At the end of the Commentary, there is a List (more than 800) of legislative, regulatory legal and judicial acts used in the preparation of the Commentary.

The authors comment on the norms of labor legislation in the system of modern Russian law in the realities of the new economic basis of the country, based on various types of property, including private property, equally recognized and protected by the state, in freedom economic activity(Article 8 of the Constitution of the Russian Federation) and freedom of labor (Article 37 of the Constitution of the Russian Federation).

At the same time, of paramount importance (ideally) in understanding the role and significance of modern labor law in Russia is the realization that the Russian Federation, as indicated in Art. 7 of the Constitution of the Russian Federation, is a social state, whose policy (including labor legislation as a method of regulating labor and related other legal relations) “is aimed at creating conditions that ensure a decent life and free development of a person.”

In this context, modern labor legislation does not always fulfill its regulatory role. In particular, its role is extremely low, not expressive in establishing a fair ratio of labor standards and its payment, distribution of natural rent, surplus value, profit, excessive in some cases exploitation of a person of hired labor, his vulnerability from an unscrupulous employer.

Long-term delays in the payment of wages, unjustified refusals to hire, illegal transfers, forced sending of workers on long holidays without pay, dismissal of workers without providing appropriate measures of material protection and providing other social guarantees and other violations of labor law.

The authors draw the readers' attention to the fact that the labor relations of some (rather large) groups of workers, in addition to the Labor Code, are regulated by the norms of other federal laws. For example, for state civil servants, the federal law “On the State Civil Service of the Russian Federation” is a kind of basic labor law (labor code), and for a significant category of employees of local governments, respectively, the Federal Law “On municipal service In Russian federation".

At the same time, the norms of these laws must, firstly, not be in conflict with the norms of the Labor Code, and, secondly, they must be applied in conjunction with the norms of labor legislation and other normative acts containing labor law norms.

It is important to understand that the development and adoption of the new Labor Code of the Russian Federation is due to the transition of the Russian Federation to market relations based on the widespread privatization of state-owned enterprises, institutions and organizations that received full economic independence after privatization.

The authors emphasize that in modern conditions it is necessary to increase the role of labor legislation, to improve it as a regulator of social relations in the sphere of labor, a mechanism to stimulate the creative activity of participants in labor relations, to ensure fair regulation of the correlation of interests of the owners of organizations (employers) and working people ( employees), worthy of adequate payment for the results of the work of employees, their social security.

Part one

Section I. General Provisions

Chapter 1. Basic principles of labor legislationArticle 1. Goals and objectives of labor legislation

The objectives of labor legislation are to establish state guarantees of labor rights and freedoms of citizens, create favorable working conditions, protect the rights and interests of workers and employers.

The main tasks of labor legislation are to create the necessary legal conditions for achieving optimal coordination of the interests of the parties to labor relations, the interests of the state, as well as the legal regulation of labor relations and other directly related relations in terms of:

labor organization and labor management;

employment with this employer;

training and additional professional education of employees directly from this employer;

social partnership, collective bargaining, conclusion of collective agreements and agreements;

the participation of employees and trade unions in the establishment of working conditions and the application of labor legislation in cases provided for by law;

liability of employers and employees in the labor sphere;

state control (supervision), trade union control over compliance with labor legislation (including labor protection legislation) and other regulatory legal acts containing labor law norms;

resolution of labor disputes;

compulsory social insurance in cases stipulated by federal laws.

COMMENT

1. Labor law is one of the most important, leading and at the same time the most complex and voluminous branches of Russian law, regulating labor and other legal relations directly related to them.

Labor law rules govern the labor activity of any community of people who have realized the need for joint or individual activities within the framework of the norms of behavior established by them (or their elected representatives), concerning both the organization of the labor process itself and the distribution of remuneration for its results.

In our state, the goals and objectives of labor legislation are predetermined by the provisions of Art. 18 of the Constitution of the Russian Federation, according to which the rights and freedoms of man and citizen are directly applicable, they determine the meaning, content and application of laws, the activities of the legislative and executive authorities, local self-government and are provided with justice. Therefore, the establishment and implementation of state guarantees of the labor rights of citizens (workers), ensuring favorable working conditions, determining a fair balance of interests of workers, employers and the state, protecting the rights of these subjects of labor relations is the goal of labor legislation.

2. The commented article formulates two main tasks of labor legislation.

Firstly, this is the creation of such legal conditions under which optimal coordination is possible, both of the interests of the parties to labor relations and the interests of the state.

Secondly, it is the provision of legal regulation not only of labor relations, but also of other relations directly related to them.

In part 2 of the commented article, the legislator identifies 9 groups of such relations.

Relations on the organization of labor and labor management are formed between the employer (its administration) and the team on the following issues:

● preparation and conclusion of a collective agreement and (or) agreements;

● setting production standards and wage conditions;

● providing privileges and benefits;

● vocational training, retraining, advanced training and training in other professions;

● improvement of social services for employees;

● other issues relating to both collective and individual interests of employees of this organization, individual entrepreneur.

Since relations in the organization of labor and labor management basically relate to the team of workers, it would be advisable to introduce into the Labor Code of the Russian Federation the concepts of the labor collective, the definition of its functions and powers.

These organizational and managerial relations play a subordinate subordinate role in relation to labor relations. They are essentially recognized to organize labor relations and manage them within a specific team of workers.

Employment relationship with this employer may arise when citizens directly apply to employers on employment issues or to local employment agencies that are part of the Federal Service for Labor and Employment. In the first case, the employee independently negotiates in personnel service organizations or directly with the employer on the conditions for concluding an employment contract. When a citizen applies to the employment authorities, these local authorities perform intermediary functions between organizations that need personnel for workers of certain specialties, and citizens who want to get a job in certain specialties, professions and positions. Employment issues are regulated by the Law of the Russian Federation of April 19, 1991 No. 1032-1 "On Employment in the Russian Federation" (as amended of December 22, 2014 No. 425-FZ).

According to Art. 12 of this Law, citizens of the Russian Federation are guaranteed:

● freedom to choose the type of activity, profession (specialty), type and nature of work;

● unemployment protection;

● free assistance in the selection of a suitable job and employment through the mediation of the employment service;

● informing about the situation on the labor market.

With the mediation of employment service agencies for employment, three types of relations arise:

● between a citizen and the local employment agency on the issue of assistance in finding an appropriate job;

● between the local employment authority and the organization (employer) on the issue of sending a citizen to work.

● between an organization (employer) and a citizen who has a referral from the local employment agency on the issue of concluding an employment contract.

This type of relationship provides an opportunity for a citizen, based on information about the situation in the labor market, by free choice to most quickly and rationally enter into labor relations.

According to the Federal State Statistics Service, the need of organizations for employees, declared to the state employment service as of January 1, 2008, amounted to 1,126,295 people.

Thus, employment relations with a particular employer, as it were, precede labor relations, ensure their occurrence. At the same time, certain employment benefits are established for certain citizens (disabled people, minors), for which specific organizations (employers) are assigned appropriate quotas (reservation rates) for hiring and vocational training. In the context of the transition to market relations, this practice ensures the legal protection of these categories of citizens in the exercise of the right to work. Thus, the Law of the City of Moscow dated December 22, 2004 No. 90 “On job quotas” establishes a quota of 4 percent of the average number of employees operating in the city of Moscow, whose average number of employees is more than 100 people. The following persons are eligible for a quota for employment:

● disabled persons recognized as such by federal institutions of medical and social expertise;

● minors aged 14 to 18;

● persons from among orphans and children left without parental care, under the age of 23:

● Citizens aged 18 to 20 from among graduates of primary and secondary vocational education institutions looking for a job for the first time (OSPS ZR. 2008. March).

Similar laws have been adopted in other subjects of the Russian Federation.

Relations on vocational training, retraining and advanced training of employees directly with this employer arise in connection with professional training, retraining and advanced training of employees, training them in second professions directly in the organization. This can be done by concluding a student agreement and training a citizen at the workplace, through brigade or course training. Such forms of training of citizens, as a rule, are carried out before the start of their independent work, therefore, these relations are of a preliminary, preparatory nature in relation to labor relations. At the same time, the training of an employee of another profession may be carried out during the period of his initial work, stipulated by the employment contract. In this case, relations regarding the acquisition of a second profession will be in relation to labor relations in the nature of auxiliary, concomitant.

In addition, the employer, if necessary, may carry out retraining of employees in educational institutions of primary, secondary, higher professional and additional education on the terms stipulated by the collective agreement or agreements. Then these relations, depending on the form of full-time or part-time retraining of employees, will be either preliminary (with full-time education) or auxiliary, accompanying (with part-time education).

Relations on social partnership, collective bargaining, conclusion of collective agreements and agreements designed to promote the development of normal relations between employers and employees.

Social partnership relations are built at the federal, regional (interregional), sectoral, territorial levels and at the level of an organization, an individual entrepreneur (local level).

At the federal level, such social partnership relations are fixed in the General Agreement between all-Russian associations of trade unions, all-Russian associations of employers and the Government of the Russian Federation for 2014-2016, which, in particular, states that the parties set among the priority goals of the Agreement the creation of conditions that contribute to the formation of a structurally developed providing the needs of the country and the population, a competitive economy based on jobs that allow the use of material and human resources efficiently from the point of view of the interests of all economic entities; ensuring a new, higher standard of living for citizens of the Russian Federation, primarily through a radical increase in the efficiency of public administration and social responsibility of all economic entities, the introduction of decent work principles based on the approaches of the International Labor Organization.

An example of social partnership relations at the sectoral level is the Sectoral Agreement on Forestry of the Russian Federation for 2013–2015” (approved by Rosleskhoz, the Trade Union of Forestry Workers of Russia on 04.12.2012).

This Agreement is concluded between employees of forestry organizations (leshozes, forestries, specialized organizations for aviation protection of forests from fires, for protecting forests from pests and diseases of the forest, for forest seed production, forest management, scientific, design and survey and other organizations, a society of foresters, workers Rosprirodnadzor, state natural reserves, national parks) represented by their representative - the Trade Union of Forestry Workers of the Russian Federation (Roslesprofsoyuz) and employers represented by their representatives - the Federal Forestry Agency (Rosleskhoz), the Federal Service for Supervision of Nature Management (Rosprirodnadzor) of the Ministry of Natural resources of the Russian Federation.

The agreement is a legal act that establishes the general principles for regulating social and labor relations and related economic relations, concluded between the authorized representatives of employers and employees of forestry organizations.

The provisions of the Agreement are mandatory for guidance and application when concluding collective, labor agreements, resolving labor disputes (conflicts) and disputes over compensation for harm caused to employees by work injury and other damage to health in forestry organizations of Russia in the performance of labor duties.

In the absence of a collective agreement in the organization, this Agreement has direct effect.

Social partnership relations between the employer and the labor collective are regulated by the norms of the Labor Code of the Russian Federation. This is essentially a new type of relationship in the subject of labor law is used by the parties of social partnership relations (employers and employees) for the contractual regulation of their social and labor relations and for the coordination of their socio-economic interests.

An entire section of the Labor Code of the Russian Federation (article 33) is devoted to social partnership in the sphere of labor, which emphasizes the importance of these relations in the system of relations between employees (employee representatives) and employers (employer representatives), and, if necessary, with state executive authorities or local governments .

Relations on the participation of workers and trade unions in the establishment of working conditions and the application of labor legislation in cases stipulated by law follows from the right of employees and their representatives (including the bodies of trade unions of employees) to participate in the management of organizations in the forms provided for by the norms of labor legislation, other federal laws, agreements and collective agreements.

Such forms of participation of workers and trade unions in the establishment of working conditions and the application of labor legislation can be: collective bargaining for the preparation of draft collective agreements and agreements; mutual (employees and employers) consultations on these issues; supervision of trade union bodies over the observance by employers and their representatives of labor legislation; adoption by employers in the cases provided for by the Labor Codes of the Russian Federation of local regulations containing labor law norms, taking into account the opinion of the elected trade union body, etc.

One of the most characteristic examples of the participation of employees in the establishment of working conditions and the application of labor legislation is the participation of employees in general meetings labor collective to discuss the draft collective agreement.

At the same time, the legislator emphasizes that it is not allowed to negotiate and conclude collective agreements and agreements on behalf of employees by organizations or bodies created or funded by employers, executive authorities or local governments, political parties.

Relationships on the liability of employers and employees in the field of labor may arise both in the event of injury to the employee associated with a labor injury, occupational disease or other violation of his labor rights, and in the event that the employee causes damage to the property of the employer.

The liability of an employee, as a party to an employment relationship, is usually limited. Full material liability of an employee can occur only in cases strictly specified in the Labor Code of the Russian Federation (see commentary to Article 243 of the Labor Code of the Russian Federation).

It should be noted that the relationship between the employer and the employee (members of the employee's family in the event of his death) on liability for harm caused to the employee by an industrial injury associated with an accident at work is twofold. On the one hand, these relations are directly related to labor relations and are the subject of labor law, because in these cases the employer pays the employee on disability certificates (sick leave certificates), compensates moral damage, and also makes some other payments.

On the other hand, with the adoption of the Federal Law of July 24, 1998 No. 125-FZ “On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases” (as amended on December 1, 2014, as amended on September 30, 2015), compensation material damage the employee (members of his family) in the main part in these cases is assigned to the Social Insurance Fund of the Russian Federation, and the employer only makes insurance payments to this Fund. Therefore, the relations on the liability of the employer for the harm caused to the employee by an industrial injury are redistributed between the subject of labor law and the subject of social security law.

Relations on supervision and control (including trade union control) over compliance with labor laws(including legislation on labor protection) and other regulatory legal acts containing labor law norms can be characterized as protective and security. They ensure compliance with labor legislation, including rules and regulations on labor protection, other regulatory legal acts containing labor law norms, ensuring the priority of preserving the health and life of employees.

These relations are formed in the process of supervisory activities of the relevant state bodies for compliance with labor laws, ensuring safe conditions and labor protection in organizations.

Such bodies are currently the bodies of the federal labor inspectorate (the Federal Service for Labor and Employment and its territorial bodies - state labor inspectorates in the constituent entities of the Russian Federation), exercising their powers on the basis of the norms of the Labor Code of the Russian Federation (Articles 354-365), Regulations on the Federal service for labor and employment, approved. Decree of the Government of the Russian Federation of June 30, 2004 No. 324 (as amended on April 11, 2015 No. 347), as well as regulations on state labor inspectorates in the constituent entities of the Russian Federation, approved. the relevant orders of Rostrud dated March 24, 2005 No. 139-227 (OSPS ZR. 2008. March).

The right to control compliance by employers and their representatives with labor legislation has also been granted to trade union bodies. Trade unions can exercise such control functions both through their bodies (committees, associations, associations) and through specialized trade union bodies - trade union labor inspectorates and authorized (trusted) persons for labor protection.

In various industries, control and supervision functions for labor protection are carried out by specialized state organizations. These are:

● The Federal Service for Ecological, Technological and Nuclear Supervision (Rostekhnadzor), which is directly managed by the Government of the Russian Federation and performs, among other things, control and supervision functions: for the safe conduct of work related to the use of subsoil; to ensure industrial safety, safety in use atomic energy, electrical and thermal installations and networks, etc.;

● The Federal Service for Supervision of Consumer Rights Protection and Human Welfare within the Ministry of Health and Social Development of the Russian Federation, which, among other things, performs the functions of sanitary and epidemiological surveillance in organizations.

State supervision over the precise and uniform application of labor legislation and other regulatory legal acts containing labor law norms is also carried out by the bodies of the Prosecutor's Office of the Russian Federation in accordance with the powers vested in them by the Law of the Russian Federation of January 17, 1992 No. 2202-1 "On the Prosecutor's Office in the Russian Federation" (as amended on July 13, 2015 No. 269-FZ).

In the course of exercising their control and supervision powers over labor protection and compliance with labor legislation, these bodies enter into legal relations with organizations, officials of their administrations, employers and employees.

Often these relationships can arise even before the start-up stage of the organization. For example, supervision over compliance with labor protection standards at the design stage of an enterprise, at the stage of its construction or reconstruction, etc. In these cases, control and supervisory relations arise before labor relations, and they can be characterized as preventive.

Relationships for the resolution of labor disputes are formed between the bodies for the consideration of labor disputes relating to various aspects of the application of labor legislation, between employers and employees. These relations may concern both the protection of the rights of workers and the protection of the rights of employers.

The protection of labor and labor-related socio-economic rights of employees can be carried out in the following ways:

● state bodies and officials of these bodies exercising state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms (federal labor inspectorate, federal services of executive authorities for supervision in the established field of activity, the Prosecutor's Office of the Russian Federation; labor of subjects of the Russian Federation);

● bodies of trade unions (committees, unions, associations; labor inspectorates, authorized (trusted) persons for labor protection);

● bodies for the consideration of individual labor disputes in organizations - commissions for the consideration of labor disputes (CLC);

● in courts;

● through self-protection of labor rights by employees;

● through the consideration of collective labor disputes (conciliation commissions, with the participation of an intermediary, in labor arbitration), including the use of the right to strike.

In general, these relations can be characterized as procedural-protective and procedural-preventive, since the activities of the bodies for the protection of the rights of workers and employers are aimed not only at protecting the rights of these subjects of labor relations and other relations directly related to them, but also at a preventive nature to prevent such violations. henceforth.

Relations on compulsory social insurance carried out only in cases provided for by federal laws.

One of the principles of labor law is “ensuring the right to compulsory social insurance of employees”.

Therefore, the legislator in Art. 22 of the Labor Code of the Russian Federation included among the main obligations of the employer the implementation of compulsory social insurance of employees in the manner prescribed by federal laws.

Such social insurance is carried out by employers on the basis of the Federal Law “On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases”.

According to this Law, insurance compensation for harm to victims is carried out by an insurer, which is the Social Insurance Fund of the Russian Federation. Employers are also required to make payments for social insurance against industrial accidents and occupational diseases.

Commentary on the Labor Code of the Russian Federation (at the choice of the reader). Commentary on the Civil Procedure Code of the Russian Federation (at the choice of the reader).

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It should be borne in mind that some works were written and published on the basis of outdated legislation (including before the entry into force of the Labor Code).

Gusov K.N.,

Medvedev O.M.

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*(1) See: Zhigastova T.M. Analysis of violations by employers of labor legislation on the issues of concluding, fulfilling and terminating an employment contract // Personnel Management. 2006. No. 16. S. 28-29.

*(2) See, for example: Andreeva L.A., Medvedev O.M. Illegal dismissal // Directory of personnel officer. 2007. No. 7.

*(3) By virtue of Art. 382 of the Labor Code of the Russian Federation, individual labor disputes are considered by labor dispute commissions and courts. But the first of them cannot resolve issues of the legality of terminating an employment contract.

However, there is Part 2 of Art. 383 of the Labor Code of the Russian Federation, according to which the specifics of the consideration of these disputes of certain categories of employees are established by the Labor Code of the Russian Federation and other federal laws. Moreover, some of these acts define other bodies (in addition to those listed in Article 382 of the Labor Code of the Russian Federation), which may recognize the dismissals of the relevant categories of workers as illegal. See, for example, paragraph 4 of Art. 40 and paragraph 3 of Art. 40.1 of the Law of the Russian Federation of January 17, 1992 N 2202-1 "On the Prosecutor's Office of the Russian Federation" (as amended by the Federal Law of November 17, 1995 N 168-FZ) // SZ of the Russian Federation. 1995. N 47. Art. 4472 (with subsequent changes and additions).

But there are few such regulatory legal acts (as well as bodies, and the categories of workers themselves with an employment contract), and the competence of these other jurisdictional bodies in the "field of illegal dismissals" is somewhat narrower than that of the courts. As can be seen, for example, from the content of Art. 394 of the Labor Code of the Russian Federation. See also Chap. IV of this work.

*(4) This implies the very legal act of termination of the employment contract. Which is obvious, otherwise there can be no dismissal itself (although in practice a lot is possible).

*(5) The concept of the conditions for the legitimacy of dismissal on a specific basis is given in the preface to Ch. II of this work.

*(6) The concepts of the procedure for dismissal and guarantees are given in the preface to Ch. III work. In principle, these are two different categories in labor law. But the procedure for dismissal and the corresponding guarantees upon dismissal are sometimes not so easy to distinguish. This is a very multifaceted issue that requires special study. The very procedure for dismissal essentially consists of certain guarantees upon dismissal. But there are also guarantees that do not fit into the very procedure for dismissal on a specific basis (that is, general ones). In the framework of this work, guarantees upon dismissal are considered accordingly in different ways and this must be taken into account.

*(7) There are features of this dismissal for certain categories of workers. They are provided for in other articles of the Labor Code of the Russian Federation (for example, articles 71, 292, 296), other regulations and are not considered here.

*(8) These norms do not provide for special rules for terminating an employment contract (i.e., the procedure for dismissal is not regulated).

*(9) See, for example: Kostyan I.A. Termination of an employment contract. M.: MTsFER, 2004. S. 25-28. At the same time, the author believes that the agreement of the parties in relation to the dismissal under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation is a bilateral written document containing the conditions for terminating an employment relationship. In its absence, dismissal by agreement of the parties will be unlawful, since there is no basis for termination of the employment contract.

*(10) For details, see: Zhigastova T.M. Decree. Job. pp. 29, 31.

*(11) See: E.V. Vorobieva. How to properly fire and quit. M.: Eksmo, 2007. S. 269.

* (12) See: Frantsuzova L.V. We dismiss without problems and consequences. M.: Index-Media, 2007. S. 25.

* (13) See: Kostyan I.A. Decree. Job. S. 12, 19-21, etc.

* (14) See, for example: Geykhman V.L., Dmitrieva I.K. Labor law: a textbook for universities. M.: RPA MJ RF, 2002. S. 130.

* (15) See, for example: Labor law: textbook / ed. O.V. Smirnova. M.: LLC "TK Velby", 2003. S. 223.

* (16) Moreover, the wording of the article is such that it, in fact, obliges the parties to do this.

* (17) See, for example: Andreeva L.A., Medvedev O.M. Employment contract in Russia: textbook. M.: MIIR, 2004. S. 133-134.

* (18) See: Commentary on the Labor Code of the Russian Federation / ed. Yu.P. Orlovsky. M.: INFRA-M, 2007. S. 265.

* (19) See: Egorov V.I., Kharitonova Yu.V. Employment contract: study guide. M.: KNORUS, 2007. S. 306, 307.

* (20) For more details about this, see: Egorov V.I., Kharitonova Yu.V. Decree. Job. pp. 307-422.

* (21) About concepts and a parity of an order of dismissal and guarantees at the same time see § 1 gl. I and preface to ch. III of this work.

* (22) About legality and the oral form see also § 1 gl. I work.

* (23) In more detail conditions of legitimacy on the considered basis are stated in § 1 gl. I of this work.

*(24) It is advisable to familiarize yourself with some commentary on the first part of the Civil Code of the Russian Federation (there are quite a lot of them).

* (25) About concept and other moments of internal employment see also § 1 gl. III of this work.

* (26) In a concise form, the main aspects (but not all) concerning the legitimacy of this termination of the employment contract (conditions, procedure, as well as the burden of proof) are given in § 1 gl. I of this work. Here, some of these issues are considered more broadly, while others are not touched upon in this paragraph.

* (27) See, for example: Bulletin of the Supreme Court of the RSFSR. 1987. N 4. S. 1.

* (28) SZ RF. 1997. N 2. Art. 198 (with subsequent changes and additions).

* (29) SZ RF. 2002. N 30. Art. 3030 (with subsequent changes and additions).

* (30) About disciplinary dismissals and conditions of legitimacy of the termination of the employment contract in more detail see § 5 of the present chapter.

* (31) Bulletin of normative acts of federal executive authorities. 2003. No. 4.

* (32) SZ RF. 1996. N 25. Art. 2954 (with subsequent revisions and additions).

* (33) See: Commentary on labor legislation / under the general. ed. IN AND. Terebilova. M.: Legal literature, 1986. S. 69.

* (34) See also the relevant material in Ch. IV of this work.

* (36) See: Decree of the Government of the Russian Federation of December 16, 2004 N 805 "On the order of organization and activities of federal state institutions of medical and social expertise" // SZ RF. 2004. N 52 (part 2). Art. 5478 (with subsequent changes and additions).

* (37) It is also useful to look at the comments to the first part of the Civil Code of the Russian Federation and to the Code of Civil Procedure of the Russian Federation.

* (38) Characteristics of the given type of internal employment are resulted in sec. 6 h. 1 tbsp. 76 of the Labor Code of the Russian Federation.

* (39) SZ RF. 1997. N 41. Art. 4673.

* (40) SZ RF. 1997. N 43. Art. 4987.

* (42) And it is argued in the literature on the labor right by separate authors. See, for example: Andreeva L.A., Medvedev O.M. Labor contract in Russia. pp. 60-66; Geikhman V.L., Medvedev O.M. Employment contract (modern problems): scientific and practical guide. M.: RPA MJ RF, 2003. S. 57-61.

* (43) For more details about this, see, for example: Kostyan I.A. Termination of an employment contract. M.: MTsFER, 2007. S. 106-113 and others; Nikonov D.A., Stremoukhov A.V. Labor law: a course of lectures. M.: Norma, 2007. S. 292-294.

* (44) See about it also: the preface, § 1 and 2 gl. III of this work.

* (45) About concept of the employer - the individual businessman see h. 5 Art. 20 of the Labor Code of the Russian Federation.

* (46) In this regard, it is advisable to look at the comments to the first part of the Civil Code of the Russian Federation.

* (47) For more details about this, see also § 1 Ch. III of this work.

* (48) See: Labor law: textbook / ed. O.V. Smirnova. S. 232.

* (49) See: Gusov K.N., Tolkunova V.N. Labor law in Russia: textbook. M.: Yurist, 2005. S. 231.

* (50) See: Geykhman V.L., Dmitrieva I.K. Decree. Job. pp. 137, 138.

* (51) See: Review on some issues of judicial practice in civil cases // Bulletin of the Supreme Court of the RSFSR. 1984. N 11. S. 9 (now there are other names of these institutions).

* (52) See about it also § 1 and 2 gl. III of this work.

* (53) About action and removal of disciplinary punishment see Art. 194 Labor Code of the Russian Federation

* (54) See, for example: Geykhman VL, Dmitrieva I.K. Decree. Job. S. 145.

* (55) Probably, the legislator in subp. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation and had in mind the presence of an employee at the place of performance of labor duties in a state of alcoholic, narcotic or other toxic intoxication precisely during working hours. This is, in general, the logic, and from this we proceed when characterizing this foundation. Otherwise, there is a contradiction and the Labor Code must be applied.

* (56) In the framework of this work, we do not have the opportunity to dwell on these issues. As for the relevant legislative and other acts, it is advisable to look at one of the comments to the Labor Code and parts one and four of the Civil Code of the Russian Federation. Usually, they not only list the relevant acts, but also, if possible, give a brief description of them.

* (57) See, for example: Kostyan I.A. Decree. Job. 2007, p. 136.

* (58) Bulletin of the labor and social legislation. 2006. N 6.

* (59) See: Geykhman V.L., Dmitrieva I.K. Decree. Job. S. 147.

* (60) See: Bulletin of the Supreme Court of the RSFSR. 1982. No. 8. S. 10, 11; Commentary on the Labor Code of the Russian Federation / ed. K.N. Gusov. M.: ITD-Grachev S.M., 2008. S. 62.

* (61) Bulletin of the Supreme Court of the USSR. 1986. No. 1.

* (63) Branches and representations appear also in item 10 h. 1 and h. 4 Art. 81 of the Labor Code of the Russian Federation (the latter has already been discussed in this paragraph). At the same time, it is advisable to look at one of the comments to the first part of the Civil Code of the Russian Federation.

* (64) Bulletin of normative acts of federal executive authorities. 2005. No. 23.

* (65) For more details about this, see, for example: Kostyan I.A. Decree. Job. 2007. S. 158-164.

* (66) This has already been mentioned in the work. See, for example, § 2 Ch. I, as well as this paragraph (subgroup II).

* (67) As well as normative legal acts about work books, named in § 3 Ch. III.

* (68) Bulletin of the Constitutional Court of the Russian Federation. 2005. N 3.

* (69) In red. Federal Law of January 13, 1996 N 12-FZ // SZ RF. 1996. N 3. Art. 150 (with subsequent changes and additions).

* (70) See: Art. 26 of the Federal Law of December 4, 2007 N 329-FZ "On Physical Culture and Sports in the Russian Federation" // "Rossiyskaya Gazeta". 2007. 8 Dec.

* (71) See, for example, § 2 gl. I of the work and this paragraph (material for dismissal under clause 13, part 1, article 81 of the Labor Code of the Russian Federation).

* (72) In this case the legislator, as a matter of fact, obliges to make it. This is the wording of Art. 312 of the Labor Code of the Russian Federation.

* (73) See: Labor and collective agreements, labor agreements / ed. A.V. Sutyagin. Moscow: GrossMedia: ROSBUKH. 2008, p. 64.

* (74) For in § 1 gl. We included guarantees in the very procedure for terminating an employment contract on a specific basis (albeit with certain reservations) with a general description of illegal dismissals. See also: preface to ch. III of this work.

* (75) See about it also § 4 of the present chapter. Some aspects are closely intertwined with such a category as "invalidity of the employment contract", which is briefly discussed in the same paragraph with reference to the relevant literature on labor law.

* (76) It is approved by the order of the Government of the Russian Federation from August, 25th, 1992 N 621//SAPP. 1992. N 9. Art. 608 (with subsequent changes and additions).

* (77) It is approved by the order of the Government of the Russian Federation of July 10, 1998 N 744//СЗ the Russian Federation. 1998. N 29. Art. 3557.

* (78) See part 5 of Art. 84.1 and part 5 of Art. 394 of the Labor Code of the Russian Federation, as well as part 8 of the latter.

* (79) For more details about this, as well as the prospects for the development of internal employment, see, for example: Andreeva L.A., Medvedev O.M. Labor contract in Russia. pp. 8-17, 24-26 and others; Dzhioev S.Kh. Legal problems of employment promotion: Monograph. M.: TK Velby, Prospekt Publishing House, 2006. S. 133-145 and others; Orlovsky Yu. Employment in the new conditions of economic management // "Socialist labor". 1988. N 1. S. 55, 56.

* (80) Cases of necessity of internal employment are listed in gl. II of this work, when characterizing certain grounds for terminating an employment contract and the conditions for the legitimacy of dismissal on them, as well as in § 2 of this chapter.

* (81) For more details about this, see: Bulletin of the Supreme Court of the Russian Federation. 2007. N 12. S. 3, 4.

* (82) The Plenum of the Supreme Court of the Russian Federation explained that the opinion of the trade union body may also not be taken into account by the employer if, although it is submitted on time, it is not motivated (i.e. the position on the issue of dismissal of this employee is not justified) (subparagraph "in "Clause 23 of the Resolution of March 17, 2004 N 2).

* (83) It must be borne in mind that in case of disciplinary dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation in part 3 of Art. 193 of the Labor Code of the Russian Federation sets a stricter deadline for terminating an employment contract. And this must be taken into account.

* (84) For more details about this, see § 5 gl. II of this work (in particular, the material to clause 13, part 1, article 81 of the Labor Code of the Russian Federation, as well as in the second subgroup of grounds for terminating an employment contract). In the same place (in § 5, Chapter II), some aspects of disciplinary responsibility and disciplinary dismissals, the conditions for the legality of terminating an employment contract on certain grounds, and in some cases, the procedure for dismissal itself are considered.

* (85) According to part 2 of Art. 82 of the Labor Code of the Russian Federation - an elected trade union body.

* (86) For dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

* (87) Some charters and positions about discipline solve these questions a little differently. See, for example, part 1, clause 26 of the Regulations on the discipline of railway workers dated August 25, 1992 - the specified period also does not include the time the employee spent on the route in passenger or freight trains and the time the employee used the summed rest days.

* (88) Only for organizations (part 2 of article 180 of the Labor Code of the Russian Federation).

* (89) In addition to the payments provided for by Part 1 and 2 of Art. 178 of the Labor Code of the Russian Federation. See about this § 4 of this chapter.

* (90) Bulletin of the Supreme Court of the Russian Federation. 1993. N 3 (with subsequent changes and additions).

* (91) "Tverskaya, 13". 2008. N 3.

* (92) See also § 1 of the present chapter.

* (93) SZ RF. 2002. N 7. Art. 745.

* (94) See, for example: Geykhman VL, Dmitrieva I.K. Decree. Job. pp. 285, 286; Commentary on the Labor Code of the Russian Federation / ed. ed. Yu.P. Orlovsky. M.: Law Firm "Kontrakt", "INFRA-M", 2007. P. 1133-1139.

* (95) It must be remembered that the termination of the employment contract under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation is a disciplinary dismissal. For him, in part 3 of Art. 193 of the Labor Code of the Russian Federation set more stringent deadlines.

* (96) See about it also § 1 gl. II of this work (material for the termination of the employment contract under clause 6, part 1, article 77 of the Labor Code of the Russian Federation).

* (97) See about it also § 1 of the present chapter.

*(98) The specified forms are coordinated with the Ministry of Finance of Russia, the Ministry of Economic Development of Russia, the Ministry of Labor of Russia. - Bulletin of the Ministry of Labor of Russia. 2004. No. 5.

* (99) SZ RF. 2003. N 16. Art. 1539 (with subsequent changes and additions).

* (100) Bulletin of the Ministry of Labor of Russia. 2003. N 11. Art. eighteen.

* (101) See also Ch. IV of this work.

* (102) See, for example: the Commentary to the Labor Code of the Russian Federation. S. 91.

* (103) The part from them was already mentioned at a statement of the corresponding material in gl. II of this work.

* (104) SZ RF. 2007. N 41. Art. 4849.

* (105) See about it § 3 gl. III of this work.

* (106) See also § 1 gl. I of this work.

* (107) SZ RF. 2007. N 53. Art. 6618.

* (108) Bulletin of the Supreme Court of the Russian Federation. 2004. N 2.

* (109) See Art. 396 of the Labor Code of the Russian Federation.

* (110) This production on the appeal of decisions and definitions of justices of the peace, but consideration of disputes on recognition of dismissal illegal in that value of this category which is basically used in this work does not enter into the competence of the last. See, for example, part 5, paragraph 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2. Although much depends on the very interpretation of illegal dismissal.

* (111) Bulletin of the Supreme Court of the Russian Federation. 1995. N 3 (with subsequent changes and additions).

* (112) Now the situation has changed (and this is discussed further).

* (113) See about it § 1 gl. I of this work.

* (114) It is expedient to use one of the comments to part one and part two of the Civil Code of the Russian Federation.

* (115) See more about this one of the comments to the Labor Code of the Russian Federation and part one of the Civil Code of the Russian Federation.

* (116) See, for example: Kostyan I.A. Labor disputes: Judicial procedure for consideration of labor cases. M.: MTsFER, 2006; Krapivin O.M., Vlasov V.I. Labor contract. Conclusion. Change. Termination. Protection of personal data of employees. M.: Os-89, 2006 (ch. 7); Fadeev Yu.L. Judicial procedure for consideration of labor disputes. Moscow: Eksmo, 2007.

COMMENT

TO THE LABOR CODE OF THE RUSSIAN FEDERATION

The material was prepared using legal acts

Edited by

Honored Lawyer of the Russian Federation,

Acting State Counselor

Russian Federation 3rd class

Z.O. Alexandrova - Honored Lawyer of the Russian Federation, State Councilor of the Russian Federation 1st class - sections III (Art. 56 - 84), IV, V, VIII, IX (co-authored with S.A. Panin).

A.M. Kurennoy - Dr. jurid. Sciences, Professor, Dean of the Faculty of Public Administration of the Academy of National Economy under the Government of the Russian Federation - Sections II, XIII (Art. 398 - 418).

A.N. Lugovoy is a State Councilor of the Russian Federation of the 3rd class, a laureate of the USSR State Prize in the field of science and technology - sections III (Articles 85 - 90), XIII (Articles 352 - 380, 419).

A.F. Nurtdinova - Doctor of Law. sciences - sections I, XIII (art. 381 - 397).

S.A. Panin - Honored Lawyer of the Russian Federation, Acting State Counselor of the Russian Federation of the 3rd class - sections VI, VII, IX (with Z.O. Alexandrova), XI, XII.

A.P. Solovyov - head. Department of Analysis and Modeling in Occupational Safety and Health at the Academy of Occupational Safety and Health of MGSU, Ph.D. economy Sciences, Professor, State Counselor of the Russian Federation, 3rd class - section X (co-authored with Yu.G. Sorokin).

SOUTH. Sorokin - head. Department of Management and Law in the Field of Occupational Safety and Health at the Academy of Occupational Safety and Health of MGSU, Ph.D. tech. Sci., Professor, Acting State Counselor of the Russian Federation, 3rd class - section X (co-authored with A.P. Solovyov).

LABOR CODE OF THE RUSSIAN FEDERATION

State Duma

Federation Council

PART ONE

Section I. GENERAL PROVISIONS

Chapter 1. BASIC PRINCIPLES OF LABOR LEGISLATION

Article 1. Goals and objectives of labor legislation

The objectives of labor legislation are to establish state guarantees of labor rights and freedoms of citizens, create favorable working conditions, protect the rights and interests of workers and employers.

The main tasks of labor legislation are to create the necessary legal conditions for achieving optimal coordination of the interests of the parties to labor relations, the interests of the state, as well as the legal regulation of labor relations and other directly related relations in terms of:

labor organization and labor management;

employment with this employer;

professional training, retraining and advanced training of employees directly from this employer;

social partnership, collective bargaining, conclusion of collective agreements and agreements;

the participation of employees and trade unions in the establishment of working conditions and the application of labor legislation in cases provided for by law;

liability of employers and employees in the labor sphere;

supervision and control (including trade union control) over compliance with labor legislation (including labor protection legislation);

resolution of labor disputes.

Commentary on Article 1

1. This article defines the social purpose of labor legislation. First of all, this is the implementation of a protective function - the creation of a system of state guarantees of the labor rights of workers. The Labor Code of the Russian Federation establishes the statutory rights of workers in the sphere of labor, the mechanism for the implementation and protection of these rights. The social orientation of the legal regulation of labor relations and other relations directly related to them is specially emphasized, it is manifested in the orientation towards the creation of favorable working conditions.

Along with the labor rights of employees - persons who are in labor relations, labor legislation proclaims and protects human rights and freedoms in the sphere of labor, such as freedom of labor, protection from discrimination in employment.

The protection of the labor rights of workers and the freedoms established for citizens in the sphere of labor are proclaimed as a state task.

The second public function of labor legislation is traditionally recognized as production - aimed at protecting the interests of the employer in labor relations. The norms of labor law should create conditions for the fulfillment of production tasks, the effective functioning of business entities.

2. The task of labor legislation is to achieve a reasonable balance between protecting the rights and interests of employees and ensuring the normal activities of organizations and individuals using someone else's labor. The legal regulation of labor and other public relations included in the subject of labor law is designed to create a basis for reconciling the interests of employees and employers, on the one hand, and the subjects of labor relations and the state, on the other.

Thus, workers must be protected from over-exploitation in the course of their work: a system is created for them to protect life and health at work, fair working conditions are established, state (including judicial) and public (trade union control over compliance with the law) are provided protection of labor rights, the right to self-defense is guaranteed.

Employees are provided with the possibility of collective protection of their interests and labor rights, including the right to association, collective bargaining, participation in the management of the organization, collective labor disputes.

Employers are protected from dishonest performance of labor duties by employees, damage to property and violation of property rights in the course of labor activity.

Employers are guaranteed the possibility of free formation of the organization's personnel (personnel), the right to organize labor, establish internal labor regulations, and adopt local regulations containing labor law norms.

In order to protect their rights, employers can bring employees to disciplinary and material liability.

The interests of the state in the sphere of labor are associated with ensuring social stability and economic development, reducing unemployment, improving the quality of life, and creating conditions for the free development of the individual.

In this regard, labor legislation creates the basis for social partnership, establishes procedures for the rapid and effective resolution of collective labor disputes, and mitigation of the confrontation between labor and capital.

As the main principle of determining wages, accounting for its quantity and quality is established, which creates conditions for maintaining a balance between the growth of labor productivity and its payment, the formation of a stable effective demand of the population - important factors of economic growth.

A system of social guarantees of protection against unemployment and assistance in finding employment is being created, and the goal is to provide everyone with a decent wage.

It is especially necessary to emphasize the role of labor legislation in creating conditions for the realization of human rights and freedoms in the sphere of labor, ensuring social justice in hiring, establishing working conditions, promotion at work, termination of labor relations.

3. Part two of this article defines the range of social relations regulated by the norms of labor law. These are labor relations (see comments to Articles 15-19 of the Code) and other relations directly related to them.

Labor legislation regulates relations in the organization of labor and labor management. Traditionally, these relations were considered as relations accompanying the labor relationship. They arise regarding the implementation of the managerial and law enforcement activities of the employer, as well as the adoption of local regulations.

The employment relationship with a given employer precedes the employment relationship. They arise between a person sent by the state employment service agency and the employer, who is obliged to consider the issue of concluding an employment contract and inform the unemployed person (person in need of employment) and the relevant employment service agency of his decision.

The legislator emphasizes that not all employment relations are subject to regulation by labor legislation. In particular, the relationship between the body of the state employment service and the citizen who applied for employment is regulated by administrative legislation.

Relationships for vocational training, retraining and advanced training may precede or accompany an employment relationship. The parties to these relations are the employer and the employee who has entered into a student agreement or aimed at advanced training. Such relations may also arise between an employer and a person wishing to acquire a profession (specialty) (see comments to Articles 196-208 of the Code).

Social partnership relations, or (in the terminology of the International Labor Organization) collective labor relations, include relations between the employer (employers, representatives of employers) and representative organizations (bodies) of employees for collective bargaining and the conclusion of collective agreements, agreements, for the participation of employee representatives in management of the organization, consultations, formation and activities of social partnership bodies (commissions, committees, etc.), management of social non-budgetary funds, etc. (See comments to Articles 23 - 53 of the Code). Such relationships can arise at various levels - local, sectoral, regional, etc. They are associated with labor relations.

Relations on the participation of workers and trade unions in the establishment of working conditions and the application of labor legislation, strictly speaking, also belong to the group of relations on social partnership. They characterize the cooperation of the employer (employers) and trade unions in the field of establishing and applying labor law norms. However, the legislator considered it necessary to highlight them, thereby emphasizing the special importance of the interaction of the parties in this area.

These include relations on the development and adoption of local regulations, taking into account the opinion (or as agreed) of trade unions (see comments to Articles 8, 53, 135, 190, 372 of the Code), relations between the employer and the elected trade union body of the organization for taking into account the opinion of the trade union when dismissing employees, obtaining consent to dismissal and in other cases (see comments to Articles 39, 82, 371, 373, 374, 375, 376, 405 of the Code). These relationships are associated with labor relations.

The relationship between the employer and the employee in terms of material liability in the sphere of labor (for compensation for damage caused) (see comments to Articles 232 - 249 of the Code) is for the first time singled out as an independent group of social relations that are part of the subject of labor law. Traditionally, they were considered as an element of the labor relationship.

Relations on supervision and control over compliance with labor legislation arise between supervisory and control bodies (including trade unions) and employers in the process of carrying out supervisory and control activities of the competent state and public bodies (see comments to Articles 353 - 370 of the Code) . They may precede labor relations in the event of preventive supervision of compliance with labor protection requirements in the design, construction (reconstruction) and construction of machines, mechanisms and other equipment, in the course of developing technological processes (see commentary to Article 211 of the Code), accompany them in case of verification of compliance with the legislation and rules on labor protection in relation to persons who are in an employment relationship, follow the employment relationship (follow from them), if the legality of the dismissal of an employee is checked.

Relations on the resolution of labor disputes arise between the parties to the dispute and the bodies for their consideration. It should be noted that these relations are not homogeneous and are divided into two groups: a) relations for the resolution of an individual labor dispute, the participants of which may be an employee, an employer, a commission on labor disputes, a court (magistrate), a higher body (in cases established by law ) (see comments to Articles 381 - 397 of the Code); b) relations for the resolution of collective labor disputes, in which the employer (employers, representatives of employers), representatives of employees, the service for the settlement of collective labor disputes, conciliation bodies created by the parties (see comments to Articles 398 - 418 of the Code) participate.

The relationship to resolve an individual labor dispute may precede, accompany or follow the labor relationship, depending on the issue on which the disagreement arose. Relations on the resolution of a collective labor dispute can only accompany labor relations.

Article 2. Basic principles of legal regulation of labor relations and other relations directly related to them

Based on the generally recognized principles and norms of international law and in accordance with the Constitution of the Russian Federation, the main principles of legal regulation of labor relations and other directly related relations are recognized:

freedom of labor, including the right to work, which everyone freely chooses or freely agrees to, the right to dispose of their abilities for work, to choose a profession and type of activity;

prohibition of forced labor and discrimination in the sphere of work;

unemployment protection and employment assistance;

ensuring the right of every employee to fair working conditions, including working conditions that meet the requirements of safety and hygiene, the right to rest, including the limitation of working hours, the provision of daily rest, days off and non-working holidays, paid annual leave;

equality of rights and opportunities for employees;

ensuring the right of each employee to timely and in full payment of a fair wage that ensures a worthy existence for him and his family, and not lower than the minimum wage established by federal law;

ensuring equal opportunities for employees, without any discrimination, for promotion at work, taking into account labor productivity, qualifications and work experience in the specialty, as well as for vocational training, retraining and advanced training;

ensuring the right of workers and employers to associate to protect their rights and interests, including the right of workers to form and join trade unions;

ensuring the right of employees to participate in the management of the organization in the forms provided for by law;

a combination of state and contractual regulation of labor relations and other relations directly related to them;

social partnership, including the right to participation of employees, employers, their associations in the contractual regulation of labor relations and other directly related relations;

obligatory compensation for harm caused to the employee in connection with the performance of his labor duties;

the establishment of state guarantees to ensure the rights of workers and employers, the implementation of state supervision and control over their observance;

ensuring the right of everyone to protection by the state of his labor rights and freedoms, including in court;

ensuring the right to resolve individual and collective labor disputes, as well as the right to strike in the manner prescribed by this Code and other federal laws;

the obligation of the parties to the employment contract to comply with the terms of the concluded contract, including the right of the employer to demand from employees the performance of their labor duties and careful attitude to the property of the employer and the right of employees to demand that the employer comply with his obligations in relation to employees, labor legislation and other acts containing labor law norms;

ensuring the right of representatives of trade unions to exercise trade union control over compliance with labor legislation and other acts containing labor law norms;

ensuring the right of employees to protect their dignity during the period of employment;

ensuring the right to compulsory social insurance of employees.

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