Representative body of workers. If there is no trade union in the organization, is it necessary to form a representative body of workers? Who is the initiator and what is the procedure for formation and registration. Responsibility for making decisions without the participation of a representative body of workers.

Answer

1. Neither the organization nor the employees have the obligation to create a representative body of employees (Article 8 of the Labor Code of the Russian Federation)

In the absence of a representative body of employees, the employer independently approves these documents. Otherwise, the employer would be unreasonably limited in the right to adopt the necessary local acts (clause 3 of Rostrud Letter No. 2742-6-1 dated December 8, 2008).

2. If employees are not united in trade union organizations or none of them unites more than half of the employees, then at a general meeting of employees another representative or representative body from among the employees may be elected by secret ballot (Part 1 of Article 31 of the Labor Code of the Russian Federation).

The initiators are the employees themselves.

The procedure for forming and organizing the activities of a representative body is not directly regulated in the Labor Code of the Russian Federation. Therefore, employees must determine this themselves.

2. There are no sanctions for the absence of a trade union or other representative body in the organization.

The rationale for this position is given below in the materials of the “Personnel System” .

Situation: In what cases is an organization obliged to take into account the opinion of a representative body of employees that is not a trade union?

“The Labor Code of the Russian Federation directly indicates cases when an organization is obliged to take into account the opinions of employee representatives. Such representatives may be:

 trade union;

 other representative bodies (representatives).

This is stated in Part 1 of Article 29 of the Labor Code of the Russian Federation.

The existence of another representative body (not a trade union) is possible if:

 there is no trade union in the organization;

 none of the primary trade union organizations unites more than half of the employees and is not authorized to represent the interests of all employees.*

The presence in the organization of another representative body (representative) is not an obstacle to the exercise of their powers by primary trade union organizations.

Such rules are established by part 1 of article 31 of the Labor Code of the Russian Federation.

At the same time, the Labor Code of the Russian Federation distinguishes between cases when an organization:

 must make a decision taking into account the opinion of the trade union;

 must make a decision taking into account the opinion of the representative body of employees (Article 101, Part 3 of Article 103, Part 4 of Article 135, Part 2 of Article 136, Part 3 of Article 147, Part 2 of Article 153, Article 159, Article 190, Part 3, Article 196, Part 2, Article 221 of the Labor Code of the Russian Federation).

That is, in the first case, the organization must take into account the opinion of the trade union if it exists in the organization. Moreover, if the organization does not have a trade union, and the interests of employees are represented by another representative body (authorized representative), then it is not necessary to take into account its opinion.

In the second case, the organization is obliged to take into account the opinion of the representative body of employees. That is, for example, if there is no trade union in the organization, but there is another representative body (authorized representative), then it is necessary to take into account his opinion.*

The procedure for taking into account the opinion of the representative body of employees (representative) in some cases is directly prescribed in the Labor Code of the Russian Federation (part 3 of article 103, part 2 of article 136, part 3 of article 147, article 190, part 3 of article 196 Labor Code of the Russian Federation). For example, when drawing up shift schedules, the employer must take into account the opinion of the representative body in the manner prescribed by Article 372 of the Labor Code of the Russian Federation (i.e., in the manner prescribed for the adoption of local regulations) (Part 3 of Article 103 of the Labor Code of the Russian Federation).

Moreover, in some situations, the procedure for coordinating the decisions of the employer with the representative body is not established in the legislation (Article 101, Part 4 of Article 135, Part 2 of Article 153, Article 159, Part 2 of Article 221 of the Labor Code of the Russian Federation). In this case, the organization has the right to independently determine the procedure for taking into account the opinion of the representative body of employees and reflect it in a local regulatory document (for example, in a collective agreement). In this case, the employer has the right to use the approval procedure provided for taking into account the opinion of the trade union (depending on the decision that needs to be agreed upon).”

A representative body of workers is very important for large enterprises, which not only work to increase profits and economic growth of the company, but also take care of their subordinates. At the same time, the organization of such associations requires knowledge in the legislative field, because it is this body that must take part in the drafting of certain regulations of the enterprise.

Every enterprise is interested in the absence of regulatory authorities on its doorstep. Carrying out various types of inspections, ranging from fire safety to financial statements, involves the possible identification of intentional and unintentional inconsistencies with legal standards. Internal documents, which are developed by the enterprise independently, in some matters are required to take into account the opinions of employees represented by representative bodies. Provided that such a body exists in the company.

The essence of the representative body

A representative body is often called a trade union, in essence it can be a representative of the workforce or an association of representatives, perhaps from different departments or divisions.

At the legislative level, the activities of trade union organizations, their rights and obligations are regulated by the Federal Law “On Trade Unions, Their Rights and Guarantees of Operations”.

Sometimes the representative body and the trade union are identified, but this is not an entirely correct understanding. Trade unions represent the interests of all workers in the enterprise as a whole, and a representative body is created in the absence of the first or when the trade union does not represent the interests of all workers. In the latter case, the existence of two organs is possible.

At the same time, various articles of the Labor Code spell out norms that take into account the views of the trade union or the representative body, or a choice of both. But these workers' bodies are not interchangeable, despite the fact that trade unions have more powers.

Employees of the enterprise independently decide whether to create such an association or not. If a work collective exercises the right to create a trade union, a certain procedure must be followed.

The first stage is important, which involves organizing a general meeting, at which all employees or most of them must appear, which will be enough for a quorum. For large enterprises, the presence of a representative of branches or divisions at such a meeting will be sufficient. It is important that the elected employees attend the meeting in an amount of at least 2/3 of the elected representatives.

At the meeting, a candidate is nominated who will be acceptable to the workforce and will be able to defend their interests before the company’s management. Next, a secret vote takes place for one of the candidates. After the votes are counted, the candidate with the standard 50% + 1 vote wins. The voting process and its result must be recorded, for which a secretary is pre-elected.

From the history of trade unions

In England, at the end of the 18th century, the first trade unions began to appear. Their goal was to improve the working conditions of workers. This association gained momentum and gradually appeared in the USA, France, Germany and other European countries.

Entrepreneurs were unhappy with this movement. Basically, the demands of the trade unions concerned wages, which inevitably affected the fixed costs of entrepreneurs and a decrease in profits. In order to reduce the pressure of trade unions on management, employees who joined and supported this movement were often fired.

They tried to suppress the trade union movement in the USA and at the state level. The year 1890 was remembered for the appearance of a legislative act that equated this movement to a criminal conspiracy. Years later, trade unions were legalized, although for a long time they were not perceived as legal in enterprises, especially during strikes and boycotts of workers.

In Russia, the emergence of the first trade union was recorded in 1905 after the revolution. Simple associations of workers changed their format of action and form of activity. In the same year, the first legislative acts regulating such movements for enterprises in specific sectors of economic activity appeared. With the advent of the First World War, trade union bans were created in Russia; at its end, all bans were lifted.

Competence of the representative body

The Labor Code provides for the adoption of certain decisions and the approval of local regulations only in tandem with representatives of the team.

Local labor acts mean internal documents that are developed specifically for the enterprise in accordance with labor legislation. This includes various types of job descriptions, internal regulations, remuneration system, certification documents, etc.

The opinion of the representative body of employees is taken into account according to the procedure prescribed by law. When administrative personnel draw up a new internal document that requires listening to the opinion of the delegate of the workers' bodies, it is enough to provide a draft version of this document and its rationale to the trade union.

Having received the draft proposed document, the employee delegate has 5 days to process it and offer his own comments on this document. All comments or positive opinions that arise must be stated in writing, motivating your arguments. When the opinions of the employer and the trade union on a proposed project differ, within 3 days it is possible to discuss the points that the parties are not happy with, come to a compromise, and then approve the document.

If agreement between the parties is not reached, this must be recorded. After this, the employer can accept the developed regulatory document at the enterprise. In this case, employee representatives have the right to appeal the adopted document in court or to the labor inspectorate.

Employees of the enterprise who are directly involved in the trade union have the right to be released from work while maintaining their average earnings while fulfilling their trade union obligations. During this period, such an employee cannot be fired or transferred to another position.

Many large companies are often themselves interested in creating and supporting a trade union body. Such a workers' body creates a good reputation for the enterprise, since it automatically implies an attentive and loyal attitude towards staff. The trade union fulfills the need of personnel to communicate and protect their own rights before the administration of the company.

To protect their rights and interests, workers in various fields of activity are given the right by law to unite in trade unions. The presence of such a body is not only a certain guarantee of compliance with the provisions of the Labor Code by the employer, but also imposes many responsibilities on the latter. One of these is taking into account the opinion of the trade union in a particular procedure, for example, when adopting local regulations, dismissal due to staff reduction, etc. However, the Labor Code grants the right to defend the interests of workers not only to trade unions, but also to other representative bodies. In the article we will consider in what cases and in what order the opinion of a trade union or representative body should be taken into account.

Employee representatives in the establishment

In modern society, the activities of any organization are impossible without relationships between employees and employers. Accordingly, such relations must be orderly, that is, regulated by certain norms and regulations. The system of relationships between employees and employers, aimed at ensuring the coordination of their interests on issues of regulation of labor and other relations directly related to them, is defined by the Labor Code as a social partnership (Article 23). The parties to the social partnership are employees and employers represented by duly authorized representatives (Article 25 of the Labor Code of the Russian Federation).
The interests of the employer in social partnership are represented by the head of the organization or persons authorized by him.
Representatives of workers in social partnership are: trade unions and their associations, other trade union organizations provided for by the charters of all-Russian, interregional trade unions, or other representatives elected by workers in cases determined by the Labor Code.
The legal basis for the creation of trade unions, their rights and guarantees of activity, as well as the relations of trade unions with state authorities, local governments, employers, their associations (unions, associations), other public associations, legal entities and citizens are established by Federal Law of January 12, 1996 N 10-FZ “On trade unions, their rights and guarantees of activity” (hereinafter referred to as Law No. 10-FZ).
The interests of employees in a particular organization are represented by the primary trade union organization (hereinafter referred to as the trade union) or other representatives elected by the employees (Article 29 of the Labor Code of the Russian Federation).

Note! A trade union has the right to represent the interests of all employees of an organization if it unites more than half of the employees of this organization (Part 3 of Article 37 of the Labor Code of the Russian Federation).

In addition to the trade union, the interests of workers can be represented by other bodies, in particular a representative body. The representative body is elected at a general meeting of employees by secret ballot. Such a body can be created in two cases:
- when there is no trade union in the organization;
- when there is a trade union, but it does not unite more than half of the employees of a given employer and is not authorized to represent the interests of all employees of the organization (Article 31 of the Labor Code of the Russian Federation).
However, this does not exclude the possibility that both a trade union and a representative body will operate in the organization.
Unlike a representative body, the main function of which is to represent the interests of workers in social partnership, a trade union is endowed with such rights as the right to monitor compliance by employers and their representatives with labor legislation and other regulatory legal acts containing labor law standards, their compliance with the conditions of collective contracts, agreements (Article 370 of the Labor Code of the Russian Federation). At the same time, trade unions can interact with state bodies for supervision and control over compliance with labor legislation, that is, with state labor inspectorates (Article 19 of Law No. 10-FZ).
As for taking into account the opinion of the trade union when the employer makes decisions, it should be noted that the Labor Code in some cases establishes the obligation to take into account the opinion of the elected body of the primary trade union organization, in others - the representative body of employees, and in others - either one or the other. The legislator does not provide explanations on what to do if, for example, there is only a trade union or only a representative body in an organization, which in practice often creates difficulties. We are of the opinion that if there is a trade union, its opinion should also be taken into account in cases where the opinion of the representative body is taken into account. If the institution has only a representative body, then it cannot fulfill the powers established for the trade union.

when adopting local regulations

By virtue of Art. 371 of the Labor Code of the Russian Federation, the employer makes decisions taking into account the opinion of the relevant trade union body in cases provided for by the Labor Code. One such case is the adoption of local regulations.
According to Art. 8 of the Labor Code of the Russian Federation, a local regulatory act is a document containing labor law norms, which is adopted by the employer within its competence in accordance with laws and other regulatory legal acts, collective agreements, and agreements.
The employer may have quite a lot of such acts, these are various provisions, instructions, etc. All local regulations are approved by the employer, but the Labor Code establishes that some of them must be adopted taking into account the opinion of the trade union (representative body).
So, one of the main local acts that require approval is the internal labor regulations. This is a local regulatory act that regulates, in accordance with the Labor Code and other federal laws, the procedure for hiring and dismissing employees, the basic rights, duties and responsibilities of the parties to an employment contract, working hours, rest periods, incentives and penalties applied to employees, as well as other regulatory issues labor relations with this employer (Article 189 of the Labor Code of the Russian Federation).
According to Art. 190 of the Labor Code of the Russian Federation, internal labor regulations are approved by the employer, taking into account the opinion of the representative body of employees.
Also by virtue of Art. 135 of the Labor Code of the Russian Federation, taking into account the opinion of the representative body of workers, local regulations are adopted that establish wage systems (regulations on wages, bonuses, etc.).
In accordance with Art. 196 of the Labor Code of the Russian Federation, the employer is given the right to independently determine the need for training of employees (vocational education and vocational training) and additional vocational education for their own needs (unless such an obligation is established by law).
The forms of training and additional professional education of workers and the list of required professions and specialties in these cases are fixed in local regulations. Such acts are also adopted taking into account the opinion of the representative body of workers.
The employer's responsibilities include ensuring the development and approval of labor protection rules and instructions. The approval of instructions is carried out taking into account the opinion of the elected body of the primary trade union organization or another body authorized by employees (Article 212 of the Labor Code of the Russian Federation).
In work with harmful and (or) dangerous working conditions, as well as in work performed in special temperature conditions or associated with pollution, the employer is obliged to provide workers with personal protective equipment. The standards for the free issuance of PPE are established by regulatory legal acts.
At the same time, the employer, taking into account its financial and economic situation, has the right to establish standards for the free issuance of PPE that improve, compared to standard standards, the protection of workers from existing harmful and (or) dangerous factors. The local act establishing such norms, by virtue of Art. 221 of the Labor Code of the Russian Federation is also adopted taking into account the opinion of the elected body of the primary trade union organization or other representative body of workers.
According to Part 2 of Art. 81 of the Labor Code of the Russian Federation, taking into account the opinion of the representative body is necessary when establishing a certification procedure by local regulations.
The opinion of the representative body is also taken into account when adopting local regulations providing for the introduction, replacement and revision of labor standards (Article 162 of the Labor Code of the Russian Federation).

Taking into account the opinion of the trade union (representative body) when establishing working hours and rest times

In addition to the coordination of local regulations, the Labor Code provides for quite a lot of cases when the employer must take into account the opinion of the trade union (representative body), for example, when employees are given a working time schedule that differs from the normal one, including for certain categories of workers.
So, in accordance with Art. 74 of the Labor Code of the Russian Federation, if a change in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons) entails mass dismissal of workers, then the employer, in order to preserve jobs, has the right, taking into account the opinion of the trade union, to introduce a part-time working day (shift) and (or) part-time work week for up to six months.
Taking into account the opinion of the representative body, the employer may establish irregular working hours for individual employees. Accordingly, a local act providing for a list of positions for workers with irregular working hours is also adopted taking into account the opinion of the representative body (Article 101 of the Labor Code of the Russian Federation).
And by virtue of Art. 105 of the Labor Code of the Russian Federation, the opinion of the trade union is taken into account when adopting a local act establishing the division of the day into parts for those jobs where this is necessary due to the special nature of the work, as well as when performing work, the intensity of which is not the same during the working day (shift).
The opinion of the representative body of employees is taken into account when drawing up shift schedules by the employer (Part 3 of Article 103 of the Labor Code of the Russian Federation).
The trade union also participates in regulating the labor of workers working on a rotational basis. Thus, his opinion is taken into account when the employer establishes the procedure for applying the rotation method in the organization (Part 4 of Article 297 of the Labor Code of the Russian Federation), when increasing the duration of the shift from one month to three (Part 2 of Article 299 of the Labor Code of the Russian Federation), as well as when approving the schedule work on shift (part 1 of article 301 of the Labor Code of the Russian Federation).
As for rest time, the opinion of the trade union should be taken into account when employers establish additional vacations not provided for by the Labor Code and other federal laws (Part 2 of Article 116 of the Labor Code of the Russian Federation).
Taking into account the opinion of the trade union, employees may be involved in work on weekends and non-working holidays, if cases of such involvement are not established in Parts 2, 3 and 4 of Art. 113 of the Labor Code of the Russian Federation (Part 5 of Article 113 of the Labor Code of the Russian Federation).
And also the opinion of the trade union is required when approving such a mandatory document as a vacation schedule (Part 1 of Article 123 of the Labor Code of the Russian Federation).

Trade union and wages

As already mentioned, according to Art. 135 of the Labor Code of the Russian Federation, local regulations establishing remuneration systems are adopted by the employer taking into account the opinion of the representative body of employees.
Remuneration systems (including the size of tariff rates, salaries (official salaries), additional payments and allowances of a compensatory nature, including for work in conditions deviating from normal), systems of additional payments and incentive allowances and bonus systems are established by collective agreements, agreements, local regulatory acts in accordance with labor legislation and other regulatory legal acts containing labor law standards (Part 2 of Article 135 of the Labor Code of the Russian Federation).
Thus, by coordinating the local act establishing the remuneration system, salaries, bonuses and other payments to employees are simultaneously agreed upon. However, the Labor Code specifically states that when establishing what specific payments the opinion of the trade union (representative body) should be taken into account. This:
- the amount and procedure for paying remuneration to employees, with the exception of employees receiving a salary (official salary), for non-working holidays on which they were not involved in work (Part 3 of Article 112 of the Labor Code of the Russian Federation);
- specific amounts of increasing wages for workers employed in work with harmful and (or) dangerous working conditions (Part 3 of Article 147 of the Labor Code of the Russian Federation). At the same time, the minimum increase in wages for employees engaged in work with harmful and (or) dangerous working conditions is 4% of the tariff rate (salary) established for various types of work with normal working conditions (Part 2 of Article 147 of the Labor Code of the Russian Federation) .
By virtue of Art. 136 of the Labor Code of the Russian Federation, when paying wages, the employer is obliged to notify each employee in writing about the components of wages and other amounts accrued to the employee, as well as the amount of deductions and the total amount of money to be paid.
All information is indicated in a document such as a payslip. Each employer must develop a form of pay slip, and it is approved taking into account the opinion of the representative body of employees.

The procedure for taking into account the opinion of the trade union (representative body)

The procedure for taking into account the opinion of the elected body of the primary trade union organization both when adopting local regulations and when making decisions in the cases listed above is established by Art. 372 Labor Code of the Russian Federation. The opinion of the representative body of workers is also taken into account in the same manner.
According to this procedure, before making a decision, the employer sends a draft document (order, local regulatory act, etc.) and justification for it to the elected body of the primary trade union organization, representing the interests of all or the majority of employees (or a representative body of employees).
The trade union, no later than five working days from the date of receipt of the draft of the specified local regulatory act, sends the employer a reasoned opinion on the draft in writing.
If the motivated opinion of the trade union does not contain agreement with the draft local regulatory act or contains proposals for its improvement, the employer may agree with it or is obliged, within three days after receiving the reasoned opinion, to conduct additional consultations with the trade union in order to achieve a mutually acceptable solution.
If agreement is not reached, the disagreements that arise are documented in a protocol, after which the employer has the right to adopt a local normative act, which can be appealed by the trade union organization in the relevant state labor inspectorate or court. The trade union also has the right to initiate a collective labor dispute procedure in the manner established by the Labor Code of the Russian Federation.
Upon receipt of a complaint (application) from a trade union organization, the State Labor Inspectorate is obliged to conduct an inspection within one month and, if a violation is detected, issue the employer a mandatory order to cancel the specified local regulatory act.
If agreement is reached, the act is approved by the head of the organization or other authorized person.

Other cases of trade union participation in labor activities

We examined cases where the employer is obliged to take into account the opinion of the trade union (representative body) in relation to all employees of the organization. However, the legislation pays special attention to the members of trade unions themselves, who have some advantages over other workers. For example, the employer is obliged:
- take into account the reasoned opinion of the elected body of the primary trade union organization when terminating an employment contract with union members due to staff reduction, inadequacy of the position held or repeated failure to fulfill labor duties (clauses 2, 3, 5, part 1, article 81 of the Labor Code of the Russian Federation). In this case, the procedure for such approval is provided for in Art. 373 of the Labor Code of the Russian Federation (Part 2 of Article 82 of the Labor Code of the Russian Federation).

Note! When making a decision to reduce the number or staff of an organization’s employees and the possible termination of employment contracts with employees, the employer is obliged to notify the elected body of the primary trade union organization about this in writing no later than two months before the start of the relevant activities, and if the decision to reduce the number or staff of employees can lead to mass dismissal of workers - no later than three months before the start of the relevant activities (Part 1 of Article 82 of the Labor Code of the Russian Federation);

Obtain the consent of the relevant higher elected trade union body when dismissing according to paragraphs 2, 3, 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation of managers (their deputies) of elected collegial bodies of primary trade union organizations, elected collegial bodies of trade union organizations of structural divisions of organizations (not lower than workshops and equivalent to them), not exempt from their main work. In the absence of a higher elected trade union body, the dismissal of these workers is carried out in the manner established by Art. 373 of the Labor Code of the Russian Federation (Article 374 of the Labor Code of the Russian Federation);
- provide the previous job (position) to an employee released from work in the organization in connection with his election to an elective position in the elective body of the primary trade union organization, after the end of the term of these powers. And in the absence of it, with the written consent of the employee, provide another equivalent job (position) (Article 375 of the Labor Code of the Russian Federation);
- comply with the procedure established by Art. 374 of the Labor Code of the Russian Federation, upon termination of an employment contract on the grounds provided for in clauses 2, 3, 5, part 1, art. 81 of the Labor Code of the Russian Federation, with the head of the elected body of the primary trade union organization and his deputies for two years after the end of their term of office.
Please note that the specified procedure for the dismissal of trade union members applies to employees who are members of the trade union of the organization in which they are employed (Appeal ruling of the court of the Yamalo-Nenets Autonomous District dated September 27, 2012 N 33-2266).
And another form of participation of trade unions in labor activities is the participation of trade union members in various commissions. So, in accordance with Art. 82 of the Labor Code of the Russian Federation, a representative of the elected body of the primary trade union organization is required to be included in the certification commission created to conduct certification, which may serve as a basis for the dismissal of workers by virtue of clause 3, part 1, art. 81 of the Labor Code of the Russian Federation for the inadequacy of an employee for the position held or the work performed due to insufficient qualifications confirmed by certification results.
A representative of a trade union or other representative body must also be included in the accident investigation commission (Part 1 of Article 229 of the Labor Code of the Russian Federation).

We examined the main responsibilities of the employer that arise when there is a trade union or representative body in the organization. In this regard, the question may arise: should employees notify the employer about the creation of such bodies? This obligation is not established by law. However, paragraph 27 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” states that it is unacceptable for an employee to conceal the fact that he is a member of a trade union or the head (his deputy) of an elected collegial body of a primary trade union organization or its structural unit, not relieved from the main job, when the decision on dismissal must be made in compliance with the procedure for taking into account the reasoned opinion of the elected body of the primary trade union organization or, accordingly, with the prior consent of a higher elected trade union body. Otherwise, the principle of inadmissibility of abuse of rights by employees will be violated.

M.G. Moshkovich, lawyer

Is it worth creating a representative body of workers on the initiative “from above”

All accountants are interested in ensuring that there are no complaints against them from various government agencies conducting inspections, for example, the labor inspectorate. And the latter often insists that when approving such internal documents as regulations on wages, bonuses, and so on, it is imperative to take into account the opinion of the representative body of the organization’s employees. Let's see if the inspectors are right.

What is a representative body

Attention

The workers' representative body is not necessarily a trade union.

This is a trade union or simply a representative (or several representatives) from among the workers themselves. The powers of the latter are confirmed by the minutes of the general meeting of the organization’s employees. However, the creation of such a body is the right of workers in Articles 29, 31 of the Labor Code of the Russian Federation. That is, there may not be a representative body of workers in the organization (or the entrepreneur).

Are the regulatory authorities right in putting forward such a requirement?

When approving many local regulations (hereinafter - LNA), the employer is indeed obliged to take into account the opinion of the representative body of employees, but only if there is one Art. 8 Labor Code of the Russian Federation.

CONCLUSION

If employees took the initiative and created their own body, then taking into account its opinion in the cases named in the Labor Code of the Russian Federation is mandatory. If there is no representative body, then there can be no claims related to its absence.

The courts today reason the same way when considering a variety of disputes.

For example, Rostransnadzor referred to the organization's violation of licensing requirements, in particular, due to the fact that the organization approved the work schedules of drivers without taking into account the opinion of the representative body of workers. But the court rejected this argument, since this body was not elected in society. Resolution 17 AAS dated August 14, 2009 No. 17AP-6400/2009-AK.

In another case, the tax inspectorate tried to prove the illegality of accounting in expenses the amounts of bonuses paid on the basis of the regulations on the conditions of remuneration, approved only by the general director without taking into account the opinion of the representative body of employees. But also unsuccessfully, since there was no such body in the organization. Resolution 9 AAS dated 08.08.2011 No. 09AP-17511/2011-AK, 09AP-17512/2011-AK.

The court also rejected the employee who considered the provision on bonuses, adopted without “taking into account opinions”, illegal: the employer’s representative body had not been created. Based on this provision, the employee was paid a bonus in a smaller amount than he expected. Cassation ruling of the St. Petersburg City Court dated October 20, 2011 No. 33-15808/2011.

Is it easier to create than to argue?

Nevertheless, some zealous inspectors (from the labor inspectorate, tax and other regulatory authorities) still insist that the approval of the LNA without taking into account the opinion of the representative body is a violation. Show them the Labor Code standards if they are not familiar with them!

But, unfortunately, the administration (including the accountants and personnel officers themselves) sometimes follows the controllers’ lead. As a result, a decision was made to quickly create a representative body. After all, it seems that this is easier than proving your case in the courts.

If your management has decided to take this path, then here is an approximate course of action.

Organize a general meeting of employees (at least half of all employees must be present for a quorum). Do this during business hours to ensure attendance. If you have a large organization with an extensive branch network and it is difficult to gather everyone in one place and at the same time, then you can hold a conference of delegates pre-elected by the organization’s divisions. At least 2/3 of the elected delegates must be present. Art. 31, part 3 art. 399 Labor Code of the Russian Federation.

The representative (if we are talking about an “appointee”, then there is no need for a collegial body) must be elected by secret ballot and a simple majority of votes from the total number of those present (50% + 1 employee) Part 3 Art. 399 Labor Code of the Russian Federation. Compliance with this procedure is confirmed by the minutes of the general meeting, therefore employees must elect a secretary of the meeting to conduct it.

What is important to remember when having a representative body

So, a representative body has been elected. Let's see what kind of burden the organization takes on itself in this case.

When to take into account the opinion of a representative body

WE WARN THE MANAGER

If a representative body is created, That for approving the LNA without taking into account his opinion a fine is provided Art. 2.4, part 1 art. 5.27 Code of Administrative Offenses of the Russian Federation; Decision of the Ryazan Regional Court dated June 15, 2010:

• 30,000-50,000 rub. - for the organization;
• 1000-5000 rub. - for its leader (entrepreneur).

The answer is in all cases when the relevant norm of the Labor Code of the Russian Federation directly states this, and there are many such norms. For example, when establishing a remuneration system Art. 135 Labor Code of the Russian Federation(in particular, the size of tariff rates, official salaries, additional payments and allowances of a compensatory and incentive nature, bonus systems), when approving the regulations on certification and Art. 81 Labor Code of the Russian Federation, list of positions of workers with irregular working hours m Art. 101 Labor Code of the Russian Federation, shift schedules and Art. 103 Labor Code of the Russian Federation etc.

Forgetfulness of the administration in this matter can lead to various unpleasant consequences. Here's just one example. The order to reduce remuneration for length of service was declared illegal, since, according to the organization’s regulations, a reduction in the amount of such remuneration was possible only in agreement with the representative body of employees. The magistrate recovered the lost amounts in favor of the workers Resolution of the Presidium of the St. Petersburg City Court dated July 1, 2009 No. 44g-110/09.

How to take into account the opinion of a representative body

In some situations, when approving the LNA, the opinion of the representative body of workers must be taken into account, observing a certain procedure established by the Labor Code of the Russian Federation.

Attention

In the event of a dispute, the norms of the LNA, adopted in violation of the procedure for “taking into account opinions” established by the Labor Code, will not be applied Articles 8, 372 of the Labor Code of the Russian Federation.

This is a statement:

• shift schedule and Art. 103 Labor Code of the Russian Federation;
• payslip forms Art. 136 Labor Code of the Russian Federation;
• the size of the increase in wages for workers engaged in heavy work, work with harmful and (or) dangerous and other special working conditions Art. 147 Labor Code of the Russian Federation;
• internal labor regulations Art. 190 Labor Code of the Russian Federation;
• forms of professional training, retraining and advanced training of workers, lists of required professions and specialties Art. 196 Labor Code of the Russian Federation;
• rules and instructions on labor protection for workers in Art. 212 Labor Code of the Russian Federation.

Let us show the procedure for “taking into account opinions” in the form of a diagram.

1Part 4 Art. 372 Labor Code of the Russian Federation; 2Art. 398 Labor Code of the Russian Federation

When approving other LNAs, the employer may take into account the opinion of the non-union representative body in some other manner, the main thing is that this opinion is reflected on paper. The above procedure is always mandatory for the trade union.

Regardless of which procedure is applied, the obligation to ask the representative body's opinion does not mean that you must agree with it. However, ignoring his position can lead to trouble. This danger may seem far-fetched - after all, the representative is then “appointed” to express his consent without expressing objections. But, as they say, you need to hope for the best and assume the worst. When creating a workers' representative body, keep in mind that things can get out of control.

Firstly, workers may in principle be unaware of the possibility of protecting their labor rights through a representative body. And with the advent of this body, it is possible that some of them will want to take advantage of the new opportunities.

Secondly, employees have the right to re-elect an “appointee”, expand the composition of the representative body, join a trade union, demand that the employer conclude a collective agreement, etc.

What benefits do employee representatives have?

Employee representatives have the right to be released from work while maintaining their average earnings for the duration of collective negotiations or the resolution of a collective labor dispute (but not more than 3 months). During these same periods, there are restrictions on their dismissal at the initiative of the employer, transfer to another job and the imposition of disciplinary sanctions. Articles 39, 405 of the Labor Code of the Russian Federation. In the event of a collective labor dispute, the administration will also have to provide premises for holding a meeting (conference) to put forward demands Art. 399 Labor Code of the Russian Federation. Representatives have the right to insist on other assistance from the employer in ensuring their activities and Art. 32 Labor Code of the Russian Federation.

Sometimes the administration itself is interested in developing social partnership with employees, especially in large organizations. The presence of an active representative body of employees gives the company a reputation as a good employer, since it implies attentive attention to the needs of employees. This attracts qualified personnel and improves the moral climate.

If the director strives for such a reputation, he can easily push employees to take initiative, explaining to them the possible advantages. But if he has not yet matured to such views, then there is no need to create unnecessary problems for himself. And you can complain about the illegal decisions of the labor inspector to his supervisor, the chief state labor inspector of the Russian Federation and (or) to court Art. 361 Labor Code of the Russian Federation.

If the organization has a trade union, then when resolving certain issues it is obliged to take into account its opinion (Article 371 of the Labor Code of the Russian Federation). The primary trade union organization represents the interests of the organization’s employees through its elected body (Articles 372, 373 of the Labor Code of the Russian Federation). In practice, such a body is the trade union committee (trade union committee).

Situation: Is an organization obliged to create a trade union??

No, I don't have to.

A trade union is considered a voluntary public association of citizens bound by common production and professional interests based on the type of their activity. A representative body (trade union) is created in order to protect the social and labor rights and interests of the organization’s employees. This is stated in Article 2 of the Law of January 12, 1996 No. 10-FZ. At the same time, trade unions are independent in their activities from the organization (organization management) (Article 5 of the Law of January 12, 1996 No. 10-FZ). When resolving certain issues, the organization is obliged to take into account the opinion of the trade union (Article 371 of the Labor Code of the Russian Federation). In particular, this must be done when adopting local regulations (Article 372 of the Labor Code of the Russian Federation). However, this condition must be met only if there is a trade union body in the organization (Article 8 of the Labor Code of the Russian Federation).

Thus, the management of the organization does not have the right to oblige employees to create a representative body (trade union). In turn, employees of an organization cannot have an obligation to unite in a trade union.

When it is necessary to take into account the opinion of the trade union

The organization is obliged to take into account the opinion of the trade union:

• in other cases provided for by law .

Accounting procedure

Procedure for taking into account the opinion of the trade union when adopting local regulations includes several stages.

First, the organization sends to the trade union committee:

• draft local regulatory act (for example, Regulations on remuneration, collective agreement);

• justification for the project (explanation of why it is being adopted and how the interests of employees are taken into account) (Part 1 of Article 372 of the Labor Code of the Russian Federation). The justification can be presented, for example, in the form cover letter .

This is stated in Part 1 of Article 372 of the Labor Code of the Russian Federation.

The trade union committee must review the draft local regulatory act and develop a reasoned opinion on it in writing. Depending on the decision made, the document may contain:

• agreement with the proposed draft local regulatory act;

• proposals for its improvement;

• negative opinion on the draft document.

The trade union must send a reasoned opinion to the employer no later than five working days from the date of receipt of the draft.

This is stated in Part 2 of Article 372 of the Labor Code of the Russian Federation.

Advice: In order to meet deadlines and resolve possible disagreements, please register covering letter, motivated opinion in the journals of incoming and outgoing correspondence.

Positive opinion

If the reasoned opinion of the trade union committee contains agreement with the draft local act, then the document is considered accepted taking into account the opinion of the trade union body. At the same time, it must contain a mention that the opinion of the trade union has been taken into account.

An example of drawing up a local regulatory act of an organization, taking into account the opinion of the trade union. The motivated opinion of the trade union committee contains agreement with the provided draft document

A trade union has been created in the organization. In January, she developed a draft Regulation on remuneration. On January 18, the draft document and its accompanying letter were sent to the trade union committee for approval. On January 22, the trade union committee sent a reasoned opinion to the organization regarding its agreement with the draft local regulatory act. The 25th of January Regulations on remuneration was accepted and approved by the head of the organization, taking into account the opinion of the trade union body.

Negative opinion

If motivated opinion trade union committee is negative or contains proposals for improving the local act, then in the specified document the trade union must justify its position and give an opinion on the presented draft document. In this case, the employer may agree or disagree with the motivated opinion of the trade union.

If the organization agrees with the reasoned opinion, the manager approves the local normative act in the wording proposed by the trade union committee.

If the employer does not agree with the position of the trade union committee, then he must conduct additional consultations with the trade union in order to achieve the optimal solution. This must be done within three days after receiving a reasoned opinion. If as a result of consultations disagreements are not eliminated, then a protocol of disagreements .

An employer may adopt a local regulation even if the parties do not reach an agreement. In this case, the trade union committee has the right to protect the rights of employees and appeal the adopted document to the labor inspectorate or court.

This is stated in parts 3 and 4 of Article 372 of the Labor Code of the Russian Federation.

Appealing a local act

An appeal against a local act to the labor inspectorate occurs in the following order. The labor inspectorate, having received a complaint from the trade union body, conducts an inspection within one month from the date of its receipt, based on the results of which it makes a decision. If violations of labor legislation are detected, the inspection will issue the employer with a mandatory order to cancel the specified local act.

This is stated in Part 5 of Article 372 of the Labor Code of the Russian Federation.

In addition, the trade union may begin the procedure for a collective labor dispute in the manner prescribed by Chapter 61 of the Labor Code of the Russian Federation.

An example of taking into account the opinion of a trade union when an organization adopts a local regulatory act. The motivated opinion of the trade union contains disagreement with the provided draft document

A trade union has been created in the organization. In January, she developed a draft Regulation on remuneration. January 18 draft document and covering letter were sent to him to the trade union committee for approval. On January 22, the trade union committee sent to the organization motivated opinion about disagreement with the draft local regulatory act. On January 25, the employer held additional consultations with representatives of the trade union, as a result of which a protocol of disagreements . Due to the fact that the parties did not reach an agreement, the organization approved a local regulatory act without taking into account the opinion of the trade union. The trade union decided to appeal the adopted document to the labor inspectorate.

In addition, in the manner prescribed for the adoption of local regulations, the organization must take into account the opinion of the trade union in some other cases established by law (Article 371 of the Labor Code of the Russian Federation).

Termination of an employment contract

The opinion of the trade union must be taken into account if the organization, on its own initiative, dismisses employees who are its members. The employer is obliged to seek the opinion of the trade union upon dismissal in connection with:

• reduction in number or staff (clause 2, part 1, article 81 of the Labor Code of the Russian Federation);

• inadequacy of the employee for the position held due to insufficient qualifications (confirmed by the results of certification) (clause 3, part 1, article 81 of the Labor Code of the Russian Federation);

• repeated failure by an employee to fulfill job duties (clause 5, part 1, article 81 of the Labor Code of the Russian Federation);

• dismissal of employees elected to labor dispute commissions (Part 3 of Article 171 of the Labor Code of the Russian Federation).

The procedure for taking into account the opinion of the trade union is as follows.

The organization sends to the trade union committee a draft order of dismissal and copies of documents that are the basis for making this decision (for example, a copy of the protocol of the certification commission - in case of dismissal due to the employee’s inadequacy for the position held) (Part 1 of Article 373 of the Labor Code of the Russian Federation).

Based on the results of reviewing the documents, the trade union committee, within seven working days, draws up a reasoned opinion in writing and sends it to the employer (Part 2 of Article 373 of the Labor Code of the Russian Federation).

If the trade union agrees with the draft dismissal order, then the organization has the right to dismiss the employee no later than one month from the date of receipt of a positive reasoned opinion (Part 5 of Article 373 of the Labor Code of the Russian Federation).

If the trade union does not agree with the organization’s decision, then it holds additional consultations with representatives of the organization within three working days. Based on the results of the consultations, a protocol is drawn up. If general agreement is not reached, the head of the organization may approve it within 10 working days from the date of sending the order without taking into account the opinion of the trade union. In this case, the trade union has the right to file a complaint against the employer’s actions with the labor inspectorate and the court. In addition, the employee can independently appeal the decision to dismiss in court.

The labor inspectorate, within 10 days from the date of receipt of the complaint, considers the issue of dismissal and, if it is declared illegal, issues a binding order to the employer to reinstate the employee at work with payment for forced absence. The organization has the right to appeal such an order in court.

This is stated in parts 3 and 4 of Article 373 of the Labor Code of the Russian Federation.

Situation: How can an organization take into account the opinion of the trade union if the procedure for such approval is not established by law (for example, when involving employees in overtime work)?

The Labor Code of the Russian Federation provides for cases when the employer is obliged to make decisions taking into account the opinion of the trade union. However, the procedure for such approval is established only for the following cases:

In addition, the Labor Code of the Russian Federation mentions other cases when an organization must take into account the opinion of the trade union body. For example, when inviting employees to work overtime (Part 2, 4 of Article 99 of the Labor Code of the Russian Federation). A complete list of such cases is given in table.

However, the procedure for coordinating the employer’s decision with the trade union in such situations has not been established.

In this case, the organization has the right to independently determine the procedure for taking into account the opinion of the trade union body and reflect it in a local regulatory document (for example, in a collective agreement). In this case, the employer has the right to use the approval procedure provided for in Articles 372 or 373 of the Labor Code of the Russian Federation (depending on the decision that needs to be agreed upon with the trade union).

Situation: In what cases is an organization obliged to take into account the opinion of a representative body of employees that is not a trade union?

The Labor Code of the Russian Federation directly indicates cases when an organization is obliged to take into account the opinions of employee representatives. Such representatives may be:

• trade union;

• other representative bodies (representatives).

This is stated in Part 1 of Article 29 of the Labor Code of the Russian Federation.

The existence of another representative body (not a trade union) is possible if:

• there is no trade union in the organization;

• none of the primary trade union organizations unites more than half of the employees and is not authorized to represent the interests of all employees.

The presence in the organization of another representative body (representative) is not an obstacle to the exercise of their powers by primary trade union organizations.

Such rules are established by part 1 of article 31 of the Labor Code of the Russian Federation.

At the same time, the Labor Code of the Russian Federation distinguishes between cases when an organization:

• must make a decision taking into account the opinion of the trade union;

• must make a decision taking into account the opinion of the representative body of employees (Article 101, Part 3 of Article 103, Part 4 of Article 135, Part 2 of Article 136, Part 3 of Article 147, Part 2 of Article 153, Art. 159, Article 190, Part 3, Article 196, Part 2, Article 221 of the Labor Code of the Russian Federation).

That is, in the first case, the organization must take into account the opinion of the trade union if it exists in the organization. Moreover, if the organization does not have a trade union, and the interests of employees are represented by another representative body (authorized representative), then it is not necessary to take into account its opinion.

In the second case, the organization is obliged to take into account the opinion of the representative body of employees. That is, for example, if there is no trade union in the organization, but there is another representative body (authorized representative), then it is necessary to take into account its opinion.

The procedure for taking into account the opinion of the representative body of employees (representative) in some cases is directly prescribed in the Labor Code of the Russian Federation (part 3 of article 103, part 2 of article 136, part 3 of article 147, article 190, part 3 of article 196 Labor Code of the Russian Federation). For example, when drawing up shift schedules, the employer must take into account the opinion of the representative body in the manner prescribed by Article 372 of the Labor Code of the Russian Federation ( ) (Part 3 of Article 103 of the Labor Code of the Russian Federation).

Moreover, in some situations, the procedure for coordinating the decisions of the employer with the representative body is not established in the legislation (Article 101, Part 4 of Article 135, Part 2 of Article 153, Article 159, Part 2 of Article 221 of the Labor Code of the Russian Federation). In this case, the organization has the right to independently determine the procedure for taking into account the opinion of the representative body of employees and reflect it in a local regulatory document (for example, in collective agreement ). In this case, the employer has the right to use (depending on the solution that needs to be agreed upon).