Organizing and conducting a strike. Strike

In accordance with Part 3 of Art. 409 of the Labor Code of the Russian Federation, the participation of workers in a strike is voluntary, no one can be forced to participate or refuse to participate in a strike. Persons who force workers to participate or refuse to participate in a strike shall bear disciplinary, administrative, and criminal liability in the manner prescribed by federal laws. Representatives of the employer are not entitled to organize a strike and participate in it. Violation of this prohibition is the basis for bringing them to disciplinary responsibility.

Bringing to disciplinary responsibility of persons forcing participation in a strike or refusal to participate in it is a right, and not an obligation, of authorized representatives of the employer. In accordance with Art. 5.40 of the Code of Administrative Offenses of the Russian Federation, coercion to participate or to refuse to participate in a strike by violence or threats of violence or using the dependent position of the coerced person shall entail the imposition of an administrative fine on citizens in the amount of 5 to 10 times the minimum wage, on officials of organizations, regardless from their organizational and legal forms and form of ownership - in the amount of 10 to 20 minimum wages. Bringing to this type of administrative responsibility in identifying the listed offenses is the responsibility of authorized persons of the state labor inspectorate, who draw up a protocol on an administrative offense and send it to the justice of the peace, and in his absence to the district (city) court. When committing criminally punishable acts, in particular, causing bodily harm to employees with the aim of forcing them to participate in a strike or to refuse to participate in a strike, the perpetrators may be held criminally liable under the relevant articles of the Criminal Code of the Russian Federation, which provide for liability for causing bodily harm. Thus, one of the legally significant circumstances to be verified when assessing the legality of a strike is the voluntary participation of employees in it.

In accordance with Part 3 of Art. 414 of the Labor Code of the Russian Federation for the duration of the strike, the employees participating in it retain their place of work and position. Recall that Art. 59 of the Labor Code of the Russian Federation allows the employer to conclude a fixed-term employment contract to replace a temporarily absent employee, who, in accordance with the law, retains his job. Therefore, the legislation does not prohibit the employer for the period of the strike to the workplaces of the workers participating in it, to accept other workers under a fixed-term employment contract, which must be terminated after the workers who took part in the strike leave. Having this opportunity reduces the potential for workers to use strike action as a legitimate way to meet collective demands. But at the same time, employees are not deprived of the opportunity to include in the subject of a collective labor dispute a demand that the employer refuses to conclude fixed-term employment contracts with employees who are hired by persons participating in the strike. The conclusion of such an agreement improves the position of employees in comparison with the legislation, which is allowed by Art. 9 of the Labor Code of the Russian Federation. The presence of such an agreement deprives the representatives of the employer of the opportunity to use other workers in the workplace participating in the strike. In this connection, the effectiveness of the strike increases.

Based on Part 4 of Art. 414 of the Labor Code of the Russian Federation, the employer has the right not to pay employees the average wage during their participation in the strike. An exception to this rule is employees who ensure the implementation of the mandatory minimum of work (services). However, a collective agreement, agreement or agreements reached in the course of resolving a collective labor dispute may provide for the retention of the average wage for employees during their participation in a strike. Therefore, one of the collective demands formed by workers may be the imposition on the employer of the obligation to maintain the average wage for workers participating in the strike. The conclusion of such an agreement with the employer also complies with applicable law.

After the conclusion of such an agreement, the workers who took part in the strike have the right to receive average earnings for the period of the strike. This right can be exercised by employees on an individual basis in writ or action proceedings.

Employees who do not participate in the strike, but in connection with the strike, are deprived of the opportunity to perform their work and have declared in writing the beginning of downtime, are entitled to payment for downtime in accordance with Art. 157 of the Labor Code of the Russian Federation in the amount of at least two thirds of their average earnings, since downtime in this case arises for reasons that depend on the employer, whose representatives, by concluding appropriate agreements, can terminate the collective labor dispute.

Based on part 6 of Art. 414 of the Labor Code of the Russian Federation, the employer may temporarily transfer to another job employees who do not take part in the strike. In accordance with Part 1 of Art. 74 of the Labor Code of the Russian Federation, a transfer is allowed to replace a temporarily absent employee participating in a strike. The duration of such a transfer should not exceed one month during a calendar year (from January 1 to December 31).

In part 7 of Art. 414 of the Labor Code of the Russian Federation states that a collective agreement, agreement or agreements reached in the course of settling a collective labor dispute may provide for a more preferential procedure for payments compared to the law to employees who did not take part in the strike. For example, maintaining the average work during downtime due to a strike, increased payment for work (services) performed in order to ensure the minimum required work (services) approved in accordance with the law. The conclusion of such an agreement also improves the position of employees in comparison with the legislation, which is in line with Art. 9 of the Labor Code of the Russian Federation. After the conclusion of such an employment contract, employees have the right to receive payments increased in comparison with the legislation with the corresponding obligation of the employer to make such payments. This right can also be exercised in writ or claim proceedings, as well as by contacting the CCC.

In Art. 415 of the Labor Code of the Russian Federation, a lockout is prohibited, that is, the dismissal of employees at the initiative of the employer in connection with their participation in a collective labor dispute or strike. Carrying out such a dismissal is a violation of labor legislation, for which authorized representatives of the employer may be held administratively liable. In part 2 of Art. 405 of the Labor Code of the Russian Federation, the rule is fixed that representatives of employees, their associations participating in the resolution of a collective labor dispute during the period of its resolution cannot be subjected to disciplinary action, transferred to another job or dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent. Thus, bringing the above persons to disciplinary responsibility, their transfer to another job, dismissal at the initiative of the employer can take place only with the prior consent of the trade union body or the general meeting (conference) of the organization or structural unit in which the collective labor dispute is being conducted, which authorized the said persons to representation under its jurisdiction. The absence of such consent is an unconditional basis for recognizing the order (instruction) on bringing to disciplinary liability, transfer, dismissal at the initiative of the administration of these persons as illegal by the state labor inspectorate or court. After that, the employee has the right to demand not only compensation for material losses, but also compensation for non-pecuniary damage.

In accordance with Part 1 of Art. 414 of the Labor Code of the Russian Federation, the participation of an employee in a strike cannot be considered as a violation of labor discipline, as well as grounds for terminating an employment contract. In part 2 of Art. 414 of the Labor Code of the Russian Federation, it is forbidden to apply disciplinary measures to workers participating in a strike. However, on the basis of Part 6 of Art. 413 of the Labor Code of the Russian Federation, after the entry into force of the court decision on recognizing the strike as illegal and handing over a copy of it to the body leading the strike, the employees have an obligation to start work the next day. Failure to comply with this obligation may be the basis for bringing employees to disciplinary liability. Thus, workers cannot be held liable for the period of the strike that has elapsed before the entry into force of a court decision declaring it illegal. That is, the basis for bringing to disciplinary responsibility is the non-execution of a court decision that has entered into legal force on recognizing the strike as illegal. The decision to recognize the strike as illegal may be made by the court of the relevant subject of the Russian Federation, it enters into force after the expiration of the ten-day period for cassation appeal or leaving it in force by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation after consideration of the cassation appeal. The decision that has entered into legal force must be handed over not only to the body leading the strike, but also be brought to the attention of the employee who is held accountable for its failure to comply. The absence of evidence confirming that the employee received a binding judgment on the basis of which he must start work does not allow him to prove his guilt in committing a disciplinary offence. In turn, the absence of a disciplinary offense does not allow applying measures of disciplinary liability to the employee. In connection with the foregoing, the following legally significant circumstances can be singled out, the proof of which makes it possible to bring an employee to disciplinary liability for participating in an illegal strike: 1) the existence of a decision that has entered into legal force on recognizing the strike as illegal; 2) bringing this decision to the attention of the body leading the strike; 3) bringing to the attention of the employee subject to disciplinary liability, information about the need to start work in connection with a court decision on the recognition of an illegal strike in which he takes part.

In accordance with Part 7 of Art. 413 of the Labor Code of the Russian Federation, the court has the right, in the presence of an immediate threat to the life and health of people, to postpone for a period of up to 30 calendar days a strike that has not begun, and to suspend a strike that has begun for the same period. A court ruling on postponing or suspending a strike may be issued when an authorized representative of the employer initiates a civil case on recognizing the strike as illegal and submits a petition to postpone or suspend the strike. This ruling as impeding the further advancement of a collective labor dispute can be appealed in cassation by filing a private complaint. Non-execution by employees of the ruling on postponing or suspending the strike that has entered into legal force is the basis for a decision to recognize it as illegal. The entry into force of this decision and its failure to comply may become the basis for bringing employees to disciplinary liability if the considered legally significant circumstances are proved. However, at the same time, the circumstances set forth in the ruling, which served as the basis for recognizing the strike as illegal, must follow from the content of substantive norms and be confirmed by a set of relevant, admissible, reliable and sufficient evidence.

In part 8 of Art. 413 of the Labor Code of the Russian Federation, the Government of the Russian Federation has been granted the right to suspend the strike until the issue of its legality is decided by the court for a period of up to ten days in cases of particular importance for ensuring the vital interests of the Russian Federation or its individual territories. Consequently, in the decision of the Government of the Russian Federation to suspend the strike, there should be a reference to the specific vital interests of the Russian Federation or its subjects that are affected by the strike that has begun. The absence of such a reference makes it possible to demand recognition of this decision as illegal in the Supreme Court of the Russian Federation. Failure to comply with the lawful decision of the Government of the Russian Federation to suspend the strike may also become a reason for its recognition as illegal in court. However, the only grounds for bringing workers participating in a strike to disciplinary liability may be a court decision that has entered into legal force declaring the strike illegal.

Thus, disciplinary liability of employees may occur after the continuation of an illegal strike recognized by a court decision that has entered into legal force.

Textbook "Labor Law of Russia" Mironov V.I.

labor law

Keywords:

1 -1

"Industry: accounting and taxation", 2008, N 6

The strike movement in Russia has not acquired a mass character, and strikes are not such a frequent occurrence in our industrial enterprises. But, unfortunately, the growth of wages does not keep pace with the rate of inflation, working conditions leave much to be desired - that's the time for a collective labor dispute.

What is the procedure for resolving this dispute? In what cases can the refusal of employees to perform work duties be considered a strike? What kind of strike is legal? What guarantees and compensations are provided for by the Labor Code of the Russian Federation in the event of a strike? How are workers who are not on strike paid?

The concept of a collective labor dispute

The Constitution of the Russian Federation recognizes the right to individual and collective labor disputes using the methods of their resolution established by federal law, including the right to strike (part 4 of article 37 of the Constitution of the Russian Federation).

According to Art. 398 of the Labor Code of the Russian Federation, a collective labor dispute is an unresolved disagreement between employees (their representatives) and employers (representatives). The reasons for it may be the establishment and change of working conditions (including wages), the conclusion, amendment and implementation of collective agreements, agreements, as well as the refusal of the employer to take into account the opinion of the elected representative body of workers when adopting local regulations.

Disagreements between employees and employers will be considered a collective labor dispute if there are two signs at the same time - a collective nature (one side is the team) and the subject of disagreement specified in Art. 398 of the Labor Code of the Russian Federation.

It should be borne in mind that working conditions can be established by law, regulations and the employer himself. With regard to collective labor disputes, only those working conditions that are determined by the employer matter. For example, the Supreme Court of the Russian Federation in the Definition of 07.07.2006 N 82-G06-2 noted that the obligatory feature characterizing a collective labor dispute is its subject matter, in particular the working conditions that are established or can be established by the employer. In the case under consideration, the claims made by employees are regulated by laws and other regulatory legal acts. Therefore, the Court concluded that there was no collective labor dispute and, as a result, no strike.

The procedure for consideration and resolution of collective labor disputes

In the event of a conflict, both parties are required to comply with certain formalities specified in Ch. 61 "Consideration and resolution of collective labor disputes" of the Labor Code of the Russian Federation. To begin with, employees and their representatives at the relevant meeting (conference) put forward requirements that are set out in writing and sent to the employer (Article 399 of the Labor Code of the Russian Federation).

The employer is obliged to accept for consideration the requirements of the employees sent to him and inform the representative body of the employees of the organization in writing about his decision within three working days from the date of receipt of these requirements (Article 400 of the Labor Code of the Russian Federation). He either agrees with the demands of the workers, decides on their satisfaction - and, as they say, the conflict is settled, or rejects the demands of the workers. The day the employer's decision to reject all or part of the requirements is communicated, as well as the employer's failure to communicate its decision after a 3-day period is considered the day the collective labor dispute begins (Article 398 of the Labor Code of the Russian Federation).

The parties have an obligation to start conducting conciliation procedures, from participation in which none of the parties to the collective labor dispute has the right to evade.

Note. Evasion of the employer or his representative from receiving the demands of employees and participating in conciliation procedures, including failure to provide premises for holding a meeting (conference) of employees in order to put forward demands or creating obstacles to holding such a meeting (such a conference), shall entail the imposition of an administrative fine in the amount of 1000 up to 3000 rub. (Article 5.32 of the Code of Administrative Offenses of the Russian Federation).

The procedure for resolving a collective labor dispute consists of the following stages (Article 401 of the Labor Code of the Russian Federation):

consideration of a collective labor dispute by a conciliation commission;
consideration of a collective labor dispute with the participation of a mediator and (or) in labor arbitration.

Consideration of a collective labor dispute by a conciliation commission is a mandatory step. Its creation is formalized by the order of the employer and the decision of the representative of the employees. The conciliation commission is formed within up to three working days from the date of the start of a collective labor dispute from representatives of its parties on an equal basis (Article 402 of the Labor Code of the Russian Federation). The dispute must be considered by the conciliation commission within five working days from the date of issuance of the relevant acts on its creation. If necessary, this period may be extended by the parties to the dispute.

If no agreement is reached in the conciliation commission, the parties to the collective labor dispute begin negotiations on inviting a mediator and (or) establishing a labor arbitration (Article 402 of the Labor Code of the Russian Federation).

After the conciliation commission draws up a protocol of disagreements, the parties to a collective labor dispute may invite a mediator within three working days (Article 403 of the Labor Code of the Russian Federation). Consideration of a collective labor dispute with the participation of a mediator is carried out within up to seven working days from the date of his invitation (appointment) and ends with the adoption by the parties of the collective labor dispute of an agreed decision in writing or drawing up a protocol of disagreements.

Labor arbitration may be established in the following cases:

after consideration of a collective labor dispute by a conciliation commission, if the parties decide to continue conciliation procedures in labor arbitration (Article 402 of the Labor Code of the Russian Federation);
in case of failure to reach an agreement on the candidacy of the intermediary (Article 403 of the Labor Code of the Russian Federation);
after consideration of a collective labor dispute by an intermediary, if the parties decide to continue conciliation procedures in labor arbitration (Article 402 of the Labor Code of the Russian Federation);
when the employer evades the creation of a conciliation commission (Article 406 of the Labor Code of the Russian Federation);
when considering a collective labor dispute of workers for whom a strike is prohibited or restricted by law (Article 406 of the Labor Code of the Russian Federation).

Labor arbitration is a temporary body for the consideration of a collective labor dispute, which is created if the parties to this dispute have entered into a written agreement on the mandatory implementation of its decisions. The term for consideration of the dispute by labor arbitration, the basic rights of labor arbitration and representatives of the parties are provided for in Art. 404 of the Labor Code of the Russian Federation.

Strike as a way to resolve a collective labor dispute

If the conciliation procedures did not lead to the resolution of the collective labor dispute, or the employer (his representatives) evades participation in conciliation procedures, does not comply with the agreement reached in the course of resolving the collective labor dispute, or does not comply with the decision of the labor arbitration, which is binding on the parties, then the employees or their representatives have the right to start organizing a strike.

Note. A strike is a temporary voluntary refusal of employees to perform their labor duties (in whole or in part) in order to resolve a collective labor dispute (Article 398 of the Labor Code of the Russian Federation).

The decision to declare a strike is made by a meeting (conference) of employees of the organization at the suggestion of a representative body of employees previously authorized by them to resolve a collective labor dispute (part 1 of article 410 of the Labor Code of the Russian Federation).

It should be borne in mind that the slightest deviation from the formalities regarding the procedures for holding a strike, set out in the Labor Code of the Russian Federation, may lead to the fact that the strike will be declared illegal. So, in the Definition of the Armed Forces of the Russian Federation of 20.04.2007 N 33-Г07-10 it says the following.

The literal interpretation of the words and expressions contained in this norm (part 1 of article 410 of the Labor Code of the Russian Federation) allows us to conclude that the legislator provided for the general, joint presence of employees at the meeting (or their representatives at the conference) to resolve the issue of declaring strikes, which excludes the phased (shift) adoption of such a decision<1>.

<1>The requirements of the workers were approved at the shift meetings, and not at the general meeting (conference) of the workers.

This conclusion is confirmed by the only exception to the said general rule contained in the same Art. 410 of the Labor Code of the Russian Federation, when, if it is impossible to hold a meeting (convening a conference) of workers, the representative body of workers has the right to approve its decision by collecting the signatures of more than half of the workers in support of the strike.

Thus, it should be recognized as justified the judgment of the court that the decision to declare a strike was made with violations, entailing by virtue of Art. 413 of the Labor Code of the Russian Federation, recognizing it as illegal.

The employer must be warned in writing about the start of the upcoming strike no later than ten calendar days in advance (Article 410 of the Labor Code of the Russian Federation).

Please note: for organizations whose activities are related to the safety of people, ensuring their health and the vital interests of society, Art. 412 of the Labor Code of the Russian Federation provides for the implementation of a minimum of necessary work (services) during the strike. If these works are not provided, the strike may be declared illegal.

Let us turn to the Definition of the Armed Forces of the Russian Federation of March 21, 2008 N 78-G08-5, the essence of which is as follows. During the trial, the employer's argument was confirmed that the employees refused to perform work and thereby violated the requirements of Art. 412 of the Labor Code of the Russian Federation on ensuring the minimum necessary work (services) performed during the strike. The court justifiably held that the strike was illegal.

The procedure for developing and approving a list of the minimum required work (services) is determined by the Government of the Russian Federation (see Decree of the Government of the Russian Federation N 901<2>), pursuant to which the sectoral lists were approved (see table).

<2>Decree of the Government of the Russian Federation of December 17, 2002 N 901 "On the procedure for developing and approving the List of the minimum necessary work (services) in the industry (sub-sector) of the economy provided during strikes in organizations, branches and representative offices."

Lists of the minimum necessary work (services) in the industry (sub-sector) of the economy, provided during the period of strikes in organizations, branches and representative offices

Industry (sub-sector)	Document approved
Rocket and space industry	Order of the Federal Space agencies dated 12/17/2007 N 124
Forestry, woodworking and pulp and paper industry	Energy of the Russian Federation dated March 27, 2006 N 57
Metallurgical industry	Order of the Ministry of Industry and Energy of the Russian Federation dated 12.12.2005 N 341
Chemical and petrochemical industry	March 2, 2004 No. 63
Medical and biotech industry	Order of the Ministry of Industry and Science of Russia dated March 2, 2004 No. 62
Engineering industry	Order of the Ministry of Industry and Science of Russia dated December 25, 2003 No. 280
Light industry	Order of the Ministry of Industry and Science of Russia dated December 25, 2003 No. 279
Peat branch of the economy	Order of the Ministry of Energy of Russia dated 09/02/2003 N 365
Gas distribution organizations	Order of the Ministry of Energy of Russia dated 08/11/2003 N 351
Power industry	Order of the Ministry of Energy of Russia dated 08/11/2003 N 350
Oil and gas industry, oil refining industry economy and oil products supply	Order of the Ministry of Energy of Russia dated 07/09/2003 N 306
Coal industry	Order of the Ministry of Energy of Russia dated May 20, 2003 No. 193

An agreement between the parties to a collective labor dispute, together with the local government, on the basis of these lists, determines the minimum necessary work (services) performed during the period of the strike by workers. This minimum is established within 5 days from the date of the decision to declare a strike and cannot contain works (services) that are not included in the relevant lists of the minimum required works (services).

The Labor Code provides for the possibility of holding a warning strike. A feature of such a strike is that it is declared once and its duration should not exceed one hour. A warning strike is announced after five calendar days of work of the conciliation commission. In this case, the employer must be notified in writing no later than three working days. The body leading the warning strike is obliged to ensure the minimum necessary work.

With regard to the timing of the warning of the employer, one should carefully consider the calculation of "three working days", otherwise the error may lead to the recognition of the strike as illegal.

For example, in the Definition of the Armed Forces of the Russian Federation dated 31.08.2007 N 6-G07-7, the following is said. In the course of the trial, it was established that by the decision of the conference of employees of the enterprise of May 15, 2007, a warning strike was announced for May 21, 2007 from 9 to 10 am. The warning was sent and handed over to the employer on May 16, 2007. Considering that the working days were May 17 and 18, and the following days, May 19 and 20, were days off, the court made a reasoned decision to miss the deadline for warning the employer about declaring an hour-long warning strike.

In doing so, it should be assumed that Art. 14 of the Labor Code of the Russian Federation, the procedure for calculating the terms is made dependent on the emergence or termination of labor rights and obligations, which, by virtue of Art. 16 of the Labor Code of the Russian Federation arise between the employee and the employer on the basis of an employment contract. In other cases, it is necessary to be guided by the general rule for calculating the period, the course of which begins on the next day after the calendar date that determines its beginning.

illegal strike

Cases of recognition of a strike as illegal are defined in Art. 413 of the Labor Code of the Russian Federation. The decision to recognize a strike as illegal is made by the supreme courts of the republics, regional, regional courts, courts of cities of federal significance, courts of the autonomous region and autonomous districts at the request of the employer or the prosecutor (Article 413 of the Labor Code of the Russian Federation).

Based on the provisions of h. 3 Article. 17, part 3 of Art. 55 of the Constitution of the Russian Federation, as well as part 3 of Art. 413 of the Labor Code of the Russian Federation, a strike, the right to which is guaranteed by the Constitution of the Russian Federation, may be declared illegal if the following is established during the trial (paragraph 59 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

Firstly, the strike was carried out in violation of Part 1 of Art. 413 of the Labor Code of the Russian Federation, which provides for cases when a strike is not allowed:

a) during periods of introduction of martial law or a state of emergency or special measures in accordance with the legislation on a state of emergency;

b) in organizations directly related to ensuring the life of the population (air, rail and water transport), in the event that strikes pose a threat to the defense of the country and the security of the state, life and health of people.

When deciding on the illegality of a strike, the courts should bear in mind that the restriction of the right to strike in the above cases is permissible only for those categories of workers in respect of which, taking into account the nature of their activities and the possible consequences of stopping them, the need for a ban on a strike directly follows of the aforementioned provisions of the Constitution. Restriction of the right to strike a larger circle of workers than is necessary to achieve the goals named in Part 3 of Art. 17 and part 3 of Art. 55 of the Constitution of the Russian Federation, is illegal (see paragraph 12 of the Decree of the Plenum of the Supreme Court of the Russian Federation of October 31, 1995 N 8).

Secondly, the strike was announced in violation of the terms, procedures and requirements established by the Labor Code of the Russian Federation:

conciliation procedures were not carried out before the strike was announced (Articles 401-404 of the Labor Code of the Russian Federation). So, in the Ruling of the Supreme Court of the Russian Federation of August 26, 2005 N 93-G05-14, it is indicated that non-compliance with the requirements for conducting conciliation procedures is the basis for recognizing the strike as illegal in accordance with Part 3 of Art. 413 of the Labor Code of the Russian Federation. A similar opinion was expressed in Ruling of the Supreme Court of the Russian Federation No. 5-G07-113 of January 25, 2008: the announcement of a strike was made without observing the procedure for resolving a collective labor dispute, which is contrary to the requirements of the Labor Code, since in accordance with Art. 409 of the Labor Code of the Russian Federation, the right to strike is recognized as the last stage in resolving a collective labor dispute;
the decision to hold a strike was made in the absence of the required quorum (part 3 of article 410 of the Labor Code of the Russian Federation), or less than half of the employees present at the meeting (conference) voted for this decision (part 5 of article 410 of the Labor Code of the Russian Federation);
the minimum necessary work (services) performed during the strike by employees of organizations whose activities are related to the safety of people, ensuring their health and the vital interests of society (parts 3 - 8 of article 412 of the Labor Code of the Russian Federation) was not provided;
the employer was not warned in writing no later than ten calendar days about the start of the upcoming strike (part 8 of article 410 of the Labor Code of the Russian Federation).

In accordance with Part 6 of Art. 413 of the Labor Code of the Russian Federation, a court decision on recognizing a strike as illegal, which has entered into legal force, is subject to immediate execution. Workers are required to start work no later than the day following the delivery of a copy of the court decision to the body leading the strike. Otherwise, the participation of an employee in a strike may be considered as a violation of labor discipline and serve as a basis for terminating the employment contract.

Guarantees provided to employees in connection with the strike

According to Art. 414 of the Labor Code of the Russian Federation, the participation of an employee in a strike cannot be considered as a violation of labor discipline and grounds for terminating an employment contract. In this regard, it is prohibited to apply disciplinary measures to workers participating in a strike (with the exception of cases of failure to fulfill the obligation to stop the strike in accordance with part 6 of article 413 of the Labor Code of the Russian Federation). For the duration of the strike, the employees participating in it retain their place of work and position. In addition, a lockout is prohibited - the dismissal of employees at the initiative of the employer in connection with their participation in a collective labor dispute or strike (Article 415 of the Labor Code of the Russian Federation).

Guarantees for members of the conciliation commission and labor arbitrators are provided for in Art. 405 of the Labor Code of the Russian Federation. For the period of participation in the resolution of a collective labor dispute, they are released from their main job with the preservation of their average earnings for a period not exceeding three months within one year.

During a strike, workers are divided into participating and non-participating in it. The employer has the right not to pay wages to employees participating in a strike for the period of their participation in the strike (with the exception of employees engaged in the performance of the mandatory minimum of work (services)). At the same time, a collective agreement, agreement or agreements reached in the course of resolving a collective labor dispute may provide for compensation payments to workers participating in a strike.

If the employees did not participate in the strike, but due to it they were unable to perform their work, they are obliged to declare in writing the start of downtime in connection with this. The employer has the right to transfer employees who are not participating in the strike to another job in compliance with the rules of Art. 74 of the Labor Code of the Russian Federation. In the event that the transfer is not possible, the downtime of an employee who does not want to participate in a strike is paid at least 2/3 of the tariff rate (official salary) of the employee (Article 157 of the Labor Code of the Russian Federation). A collective agreement, agreement or agreements reached in the course of resolving a collective labor dispute may provide for a more preferential procedure for making payments to employees who do not participate in a strike, for example, payment for downtime in the amount of average monthly earnings.

Example. From May 26 to May 30, 2008, a strike was held at the machine-building plant. Welder Semyonov S.A. decided not to participate in the strike and, being unable to do his job, announced in writing that the downtime had begun. The employment contract with the employee states that downtime is paid in accordance with the provisions of the Labor Code of the Russian Federation based on the salary established in accordance with the staffing table. Salary Semenov S.A. equal to 12,000 rubles.

By virtue of Art. 157 of the Labor Code of the Russian Federation, downtime for reasons beyond the control of the employee is paid in the amount of at least 2/3 of the tariff rate (salary). Therefore, downtime days must be paid in the amount of 2000 rubles. (12,000 rubles / 20 days x 2/3 x 5 days). The amount of wages for the days worked will be 9000 rubles. (12,000 rubles / 20 days x 15 days). Total for May accrued 11,000 rubles.

In tax accounting, compensation payments provided for in Art. 414 of the Labor Code of the Russian Federation (payment for downtime to employees who do not participate in the strike, but who, in connection with it, were unable to perform their work), relate to labor costs (Article 255 of the Tax Code of the Russian Federation). This idea was expressed by the Ministry of Finance in Letter No. 03-03-06/1/208 dated 03.04.2007.

At the same time, the Presidium of the Supreme Arbitration Court, in Resolution No. 13591/04 of April 19, 2005, considered it possible to take into account the costs of paying for downtime as non-operating on the basis of paragraph 2 of Art. 265 of the Tax Code of the Russian Federation. Since there are two points of view on this matter, we believe that the enterprise has the right to independently on the basis of paragraph 4 of Art. 252 of the Tax Code of the Russian Federation, choose any of them.

Downtime payment is subject to UST in accordance with the generally established procedure. In addition, according to paragraph 2 of Art. 10 Federal Law N 167-FZ<3>the amount of the accrued wages of the employee and the amount of downtime payment are subject to taxation of insurance premiums for compulsory pension insurance.

<3>Federal Law No. 167-FZ of December 15, 2001 "On Compulsory Pension Insurance in the Russian Federation".

The amount of payment for downtime during the strike period is subject to contributions for compulsory social insurance against accidents at work and occupational diseases (clauses 3, 4 of the Rules<4>). Suppose that, in relation to our example, insurance premiums for compulsory social insurance are accrued at the insurance rate established for the XII class of occupational risk in the amount of 1.3% (Federal Law N 186-FZ<5>).

<4>Rules for the calculation, accounting and spending of funds for the implementation of compulsory social insurance against accidents at work and occupational diseases, approved. Decree of the Government of the Russian Federation of March 2, 2000 N 184.
<5>Federal Law No. 186-FZ of July 21, 2007 "On Insurance Tariffs for Compulsory Social Insurance Against Occupational Accidents and Occupational Diseases for 2008 and the Planning Period of 2009 and 2010".

The following entries will be made in the accounting records of the organization:

Contents of operation	Debit	Credit	Sum, rub.
Salary accrued	20	70	11 000
Personal income tax withheld (11,000 rubles x 13%)	70	68	1 430
federal budget (11,000 rubles x 20%)	20	69-2-1	2 200
UST accrued in the part paid to the Fund social insurance (11,000 rubles x 2.9%)	20	69-1-1	319
Accrued UST in the part paid in Federal fund of obligatory medical insurance (11,000 rubles x 1.1%)	20	69-4	121
Accrued UST in the part paid in territorial fund of obligatory medical insurance (11,000 rubles x 2%)	20	69-3	220
Accrued insurance premiums for mandatory social insurance from NS and PZ (11,000 rubles x 1.3%)	20	69-1-2	143
Issued on hand (11 000 - 1430) rubles.	70	50	9 570

L.D. Mironova

Journal Expert

"Industry:

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According to official statistics, strikes in Russia are rare. In 2017, Rosstat recorded only one, in 2013-2016 - from two to five per year. Any employer with such statistics will not worry much about the risk of a strike in the enterprise. And the smaller the enterprise, the less such risk. Nevertheless, it is important not only to correctly assess the risk of a strike by employees, but also to have at least a general idea of the possible actions of the employer in such a situation, as well as the goals and means of solving the problem that has arisen with the team.

What is a strike

The right to strike is exercised in accordance with the procedure established by Chapter 61 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation).

The impact of the strike should not be underestimated. In fact, any strike is a disruption of plans, tasks, production volumes. All this in any case has extremely negative consequences for the employer.

But not every strike is legal.

What kind of strike can be recognized as legal

The court recognizes the strike as legal if the workers properly organized it. Let us consider in more detail the stages of preparing and declaring a strike.

Stage 1 Conciliation procedures (Article 401 of the Labor Code of the Russian Federation). This is a required step.

Stage 2 Development of requirements and their approval at the appropriate meeting (conference) of employees (part 2 of article 399 of the Labor Code of the Russian Federation).

The right to put forward claims (part 1 of article 399 of the Labor Code of the Russian Federation) is vested in employees and their representatives, determined in accordance with art. 29-31 and part 5 of Art. 40 of the Labor Code of the Russian Federation.

It is obligatory to have a quorum at the meeting at which the requirements are approved - more than half of the employees, for the conference - at least two-thirds of the elected delegates.

If the required quorum is not present, the meeting is invalid!

If it is impossible to hold a meeting (convene a conference) of employees, the representative body of employees has the right to approve its decision by collecting the signatures of more than half of the employees in support of the requirements put forward by them (part 3 of article 399 of the Labor Code of the Russian Federation).

Stage 3 Statement of requirements in writing.

The decision to declare a strike must specify:

The list of disagreements between the parties to the collective labor dispute, which are the basis for declaring and holding a strike;

Date and time of the start of the strike;

Estimated number of participants;

The name of the body leading the strike;

The composition of representatives of employees authorized to participate in conciliation procedures;

Proposals on the minimum necessary work (services) performed during the strike by employees of an organization (branch, representative office or other separate structural unit), an individual entrepreneur.

Stage 4 Submission of requirements to the employer.

This right has a representative body of employees (part 1 of article 410 of the Labor Code of the Russian Federation), previously authorized by employees to resolve a collective labor dispute.

If the labor collective missed any of the specified stages of approving the requirements and notifying the upcoming strike, the employer will be able to challenge it in court.

HOW TO RECOGNIZE A STRIKE ILLEGAL

Most often, the first thing that comes to the mind of an employer who has received notice of an upcoming strike is: is there any way to stop the strike? Yes, there is such a possibility: if the court recognizes the strike as illegal.

Based on Art. 413 of the Labor Code of the Russian Federation

In accordance with Art. 55 of the Constitution of the Russian Federation it is illegal to hold a strike:

In all organizations in special conditions (martial law or state of emergency);

In bodies and organizations of the Armed Forces of the Russian Federation, other military, paramilitary and other formations, law enforcement agencies;

Organizations (branches, representative offices or other separate structural subdivisions), directly:

Those in charge of ensuring the country's defense, state security, rescue, search and rescue, firefighting, prevention or elimination of natural disasters and emergencies;

Serving especially dangerous types of production or equipment, at ambulance and emergency medical aid stations;

Associated with ensuring the life of the population (energy supply, heating and heat supply, water supply, gas supply, aviation, rail and water transport, communications, hospitals), in the event that strikes pose a threat to the defense of the country and the security of the state, life and health of people.

05.03.2007

How to go on strike...

The trade union of the Russian branch of "Ford" and the management of the enterprise signed a new version of the collective agreement. Trade union leaders, under the threat of an indefinite strike, were able to achieve noticeable concessions from the management. But everyone who wants to take advantage of the experience of the Vsevolozhtsy should remember that a strike is a legal, but difficult-to-use tool for protecting their rights.So be well prepared.

When to go on strike

A strike is a legal way to “reach understanding” with management that ignores the wishes of employees. By Labor Code(TK) the cause of a labor dispute may be non-payment of wages, a requirement to perform work not agreed in advance, irregular working hours, etc.

The right to strike as a way to resolve a collective labor dispute is enshrined in Article 37 of the Constitution of the Russian Federation. Lockout, or dismissal of workers involved in a collective labor dispute or strike, is illegal (). On the contrary, the leadership is obliged to provide premises where the strikers could hold meetings, and has no right to refuse to negotiate with them.

But the right to strike does not always work. If its implementation poses a threat to the life and health of people, the defense of the country and the security of the state, then the strike is illegal (). True, it is unlikely that the stoppage of the production of "Focuses" threatens the lives of motorists. Ford workers have the right to strike in full.

How to organize a strike

More than one chapter is devoted to strikes in the Labor Code. Its main steps are:

Make demands on the employer.
Wait for his answer. In case of refusal to satisfy the requirements, a labor dispute arises.
Organize a conciliation commission (representatives of the employer and employees).
If it was not possible to reach an agreement, the dispute is resolved with the participation of a mediator and (or) in labor arbitration (labor arbitration is created by the parties to a collective labor dispute and the Service for the Settlement of Collective Labor Disputes).
If the result is still unsatisfactory, the workers may go on strike. The decision to declare a strike is taken at the general meeting. The employer is informed about the strike 10 calendar days in advance.

An “advanced” striker, organizing a strike, takes into account the terms, procedures and requirements provided for in Article 413 of the Labor Code, otherwise the strike risks being outlawed. For example, a decision to strike can be made only if at least half of the employees present at the meeting voted for it (or if there are signatures of more than half of the employees in support of the strike). By the way, the court declared the strike at the Ford illegal, because the decision was made by the workers not at a general meeting, but by voting in shifts. Workers say management did not provide them with a venue for the meeting.

But Ford's "illegal" strike took place. According to Elena Gerasimova, the workers had 10 days, required by law, during which the court decision could (and was) challenged in the Supreme Court of Russia, and the strike cannot be considered illegal until there is a decision of the Supreme Court. (An illegal striker can, by law, be fired.)

How to "pay off" a strike

In the spring of 2006, Ford workers went on strike "in Italian" (worked strictly "according to the norm" stipulated by the labor contract, ignoring overtime work). The administration of the plant tried to prevent a reduction in production by hiring 200 freelancers. Thus the prudent leadership "put out" the strike. Aleksey Etmonov, in an interview with the Russian Courier newspaper, noted that in Brazil, “despite unemployment”, “freelance workers do not harm the strikers, because their solidarity is not an empty phrase.”

Elena Gerasimova, director of the Center for Social and Labor Rights: “Russian legislation does not prohibit the use of agency workers during a strike. But such a ban exists in the norms of international law that are in force in the Russian Federation. In accordance with them, during the strike, the use of the labor of strikebreakers is not allowed. On this occasion, representatives of the Ford plant remain silent.

And now let's cool our ardor. Before you fight, you need to try to get your way in peace negotiations. War can lead to a stalemate, like at the Ford, where the strike situation has become chronic.

If negotiations are not an option for you, read the work of Pavel Taletsky, who organized 7 successful strikes in the Novosibirsk region: “

2008-12-23

1. The most important thing is to get rid of the complex of the victim, which has been developed for centuries among the Workers by those in power. A slave ceases to be a slave at the moment when he ceases to look at himself through the eyes of a slave owner, ceases to perceive the opinion of the authorities about himself as his own.
2. The only therapy that cures the complexes of the victim is offensive, frightening those in power protest, economic and political blackmail of the Capitalist system in their class interests.
3. The strike should be unexpected for the owners of the enterprise, the authorities. In no case should you notify your superiors in advance or threaten them with a strike (strike). Otherwise, you won't achieve anything.
4. It is best to start a strike at the most inconvenient and unsuitable moment for the bosses and owners of the enterprise (to disrupt an important order or that work, the termination of which entails stopping neighboring sections, workshops, enterprises). Fulfilling the demands of the strikers will be more profitable for the owners of the enterprise than paying penalties to customers and losing profits or getting instability in the region.
5. The more Workers (section, workshop, enterprise) involved in the strike, the greater the likelihood of success, the greater the results can be achieved.
6. Those who prepare the strike in advance, during its preparation, should not attract the attention of the authorities. In the beginning was the word. Talk to work colleagues.
7. If things go well, you need to hold a General Meeting, at which it will be necessary to decide what requirements will be put forward, and write them down.
8. Bosses should not be present during the discussion of the progress of the strike, the conditions put forward. Bosses are invited to negotiations when the position has already been agreed and accepted by the employees.
9. All negotiations with superiors are carried out only by the General Meeting of Employees at the workplace. No negotiations in the offices of the authorities! When workers are together, they are strength.
10. If the bosses will refer to the law on strikes, threaten, you do not need to pay attention to this. The laws are written by the bourgeoisie, and the deputies bought by the bourgeoisie accept them. Anyone who plays by the rules of those in power has already lost.
11. Bosses and masters will ask to "enter into their position", "understand their problems". They rob - cheat and cheat, fire and humiliate, and never enter into the position of workers. Why, then, enter into the position of superiors and masters? Who enters into the position of his enemy?
12. For greater efficiency, political demands are put forward: "Government resign", "Down with the government", or block the nearest major road, highway.
13. You need to invite the media to tell them about your demands so that your strike gets more resonance in society.
14. The more workers will take part in the strike, the greater will be the fear of those in power, the sooner your demands are met. Those in power and bosses understand only one language - the language of force.

RESISTANCE - SELF-ORGANIZATION - SELF-GOVERNMENT - FREEDOM

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