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Workers and their representatives Labor law. Section II. Social partnership in the sphere of labor

12.12.2019
Workers and their representatives Labor law. Section II. Social partnership in the sphere of labor

Representatives of employees in social partnership


Representatives of employees in social partnerships are: trade unions and their associations, other trade union organizations provided for by the charters of all-Russian trade unions, or other representatives elected by employees in cases provided for by the Labor Code.
Trade union organizations and trade unions operate through their bodies. In accordance with the Law on Trade Unions, these are bodies formed in accordance with the charter of a trade union, an association (association) of trade unions or a provision on a primary trade union organization. The body of a trade union may also be a trade union representative (trustee) - a trade union organizer, a trade union group organizer, a head of a trade union, an association (association) of trade unions, a trade union body and another person authorized to represent the charter of the trade union, the association (association) of trade unions, the regulation on the primary trade union organization or decision of the trade union.
The interests of the employees of the organization when conducting collective negotiations, concluding and amending the collective agreement, monitoring its implementation, as well as when exercising the right to participate in the management of the organization, considering labor disputes between employees and the employer, are represented by the primary trade union organization, or other representatives elected by employees. Other representatives are elected in the case when the primary trade union organization has not been created or does not unite the majority of workers (Article 31 of the Labor Code).
The interests of employees in collective negotiations on the conclusion and amendment of agreements, the resolution of collective labor disputes regarding the conclusion or amendment of agreements, the control of their implementation, as well as the formation and implementation of the activities of commissions for the regulation of social and labor relations are represented by the relevant trade unions, their territorial organizations , associations of trade unions and associations of territorial organizations of trade unions. Other employee representatives at these levels social partnership do not take part.

Representatives of non-union workers


Employees who are not members of a trade union have the right to authorize the bodies of the trade union organization to represent their interests in relations with the employer. In practice, powers are usually transferred by applying to the relevant trade union body with a statement on the provision of the interests of a particular employee.

The transfer of authority to representation is carried out only in the organization, at other levels it is impossible. Labor Code provides for the possibility of transferring authority to representation not only for collective bargaining, concluding or amending a collective agreement, but also for other forms of social partnership, for example, participation in the adoption of local regulations.
In the absence of a primary trade union organization in the organization, as well as in the presence of a trade union organization that unites less than half of the employees, general meeting(conferences), employees can entrust the representation of their interests to the specified trade union organization or another representative. The presence of another representative cannot be an obstacle to the exercise by a professional organization of its powers.
In such a situation, 4 options are possible:
- employees who are not members of this trade union transfer powers to it in the manner prescribed by Art. 30 TC;
- a general meeting (conference) of employees is convened and a decision is made to grant the current trade union organization the authority to represent the interests of all employees of the organization;
- the general meeting (conference) instructs the representative body acting in the organization to speak on behalf of the employees (for example, the council labor collective);
- the general meeting (conference) elects representative body(representative) for collective bargaining, participation in the management of the organization.
Within the meaning of Art. 31. Labor Code:
- representatives of workers who are not members of a trade union can take part in the social partnership system only if the organization does not have a primary trade union organization or it unites less than half of the workers;
- on behalf of employees in the absence of a primary organization (or its small number), both a representative body and specially elected employees - representatives can act. The solution of this issue, as well as questions on the composition of the representative body, its name, term of office, etc., is referred to the competence of the general meeting (conference).
The employer is obliged to create conditions that ensure the activities of employee representatives, in accordance with the Labor Code, laws, collective agreements, agreements. The obligation of the employer to create the necessary conditions for the representatives of employees is stipulated by the fact that trade unions and other representatives of employees carry out their activities in the premises (on the territory) of the organization (Articles 32, 377 of the Labor Code, Article 28 of the Law on Trade Unions). Specific obligations of the employer may be established in collective agreements and agreements.

Representatives of employers in social partnership


The representatives of the employer during collective bargaining, conclusion or amendment of the collective agreement are the head of the organization or persons authorized by him in accordance with Art. Art. 33 and 34 of the Labor Code, laws, other regulatory legal acts, founding documents organizations and local regulations(Article 20 of the Labor Code).
As a representative of the employer, as a rule, the head of the organization acts (Article 20 of the Labor Code) or, in other words, the sole executive body of the legal entity.
In the event that the organization simultaneously operates the sole and collective executive bodies, one should rely on the provisions of the charter that determine the competence of the governing bodies. If references to representation in collective labor relations No, the representative of the employer is the person exercising the function of the sole executive body.
It is necessary to take into account the possibility of transferring the powers of the executive body of the company to a managing organization or manager (Article 69 of the JSC Law, Article 42 of the LLC Law). Managing organization or the manager (individual entrepreneur) will act on behalf of the company, incl. and in the implementation of social partnership, unless otherwise provided by the charter.
If the organization is declared bankrupt and bankruptcy proceedings are opened or external management the head of the organization - the debtor is removed from office; the powers of other management bodies of the organization are also terminated. The management of the debtor's affairs is entrusted to an external manager or bankruptcy trustee (Articles 69, 74, 98, 101 of the Bankruptcy Law). Accordingly, the external manager or bankruptcy manager represents the interests of the employer when concluding or changing a collective agreement, exercising the right of employees to participate in the management of the organization.
When concluding a collective agreement in a branch, representative office, other structural unit, the employer's interests may be represented by a power of attorney (in accordance with the order or charter of the organization) by the head of the structural unit.
The head of the organization on behalf of the employer has the right to make decisions, sign a collective agreement. This does not exclude the possibility of delegating part of the powers to other persons, attracting specialists, managers to participate in collective negotiations structural divisions and so on. Delegation of authority or assignment of individual actions must be properly documented. In this case, it is advisable to issue an order or instruction with an exact indication of the transferred rights or entrusted actions.
When participating in the mechanism of social partnership at the federal, regional, territorial and sectoral levels, employers are represented by the relevant associations. The association of employers is recognized non-profit organization, which combines voluntary basis employers to represent the interests and protect the rights of their members in relations with trade unions, state authorities and local self-government. This is an organization that does not have profit as the main goal of its activities and does not distribute the profits received among the participants. It is membership based. The main task of an association of employers is to represent and protect the interests of its members in collective labor relations.
When conducting collective bargaining, concluding or amending agreements, resolving collective labor disputes regarding their conclusion or amendment, as well as in the formation and implementation of the activities of commissions for the regulation of social and labor relations, the interests of employers are represented by the relevant associations of employers.
Features of the legal status of an association of employers are established by the federal law "On Associations of Employers".
Being a non-profit organization, the association of employers is not responsible for the obligations of its members. It cannot guarantee the fulfillment by the employer of the obligations assumed. The association performs only representative functions - legal implications his actions come for the members of the association. This principle is also confirmed by the rules for determining the scope of agreements (Articles 35, 48, 398-408 of the Labor Code). The executive body formed by it acts on behalf of the association of employers.
Employers - state and municipal enterprises, as well as organizations financed from the relevant budgets, can be represented by executive authorities, local governments authorized to represent by law or by employers.
Employers acting in the interests of the state or municipality, may not create associations and authorize the bodies indicated above to represent their interests: executive authorities or local self-government. In practice, such a representative is most often the state body of sectoral management or department.
Executive authorities and local self-government bodies may be authorized to represent by legislation, for example, by a law that determines the features of managing in a particular area, or by a special decision of employers.
In practice, executive authorities are empowered to participate in the social partnership system by sending letters with the appropriate content by the employer.
All representatives of employers in the system of social partnership have equal rights to participate in collective negotiations, conclude agreements on behalf of those represented, however, only associations of employers participate in the formation of permanent tripartite commissions (Article 35 of the Labor Code).

Last news:

The draft law proposes to give the state labor inspector the authority to take measures to force the employer to fulfill the obligation to pay accrued but not paid to the employee wages and (or) other payments made within the framework of labor relations. The decision of the state labor inspector on this issue issued in the form of an executive document.

The adoption of the draft law is intended to increase the level of safety of information about labor activity, to simplify the employment procedure for employees in terms of interaction with personnel service employer, as well as reduce the costs of the employer and employee associated with employment.

The bill proposes an introduction to the Labor Code Russian Federation provisions on legally significant messages, the rules for which are currently available in Art. 165.1 Civil Code Russian Federation. There is no such norm in the labor legislation, however, legally significant messages in labor relations are of great importance both at the stage of conclusion employment contract as well as during its duration.

Employers and employees can also exercise their rights in the field of social partnership. However, in practice there is usually a need for representatives to act on behalf of large groups of workers and employers.

Employee representatives in social partnership can act:

  • trade unions and their associations, other trade union organizations provided for by the charters of all-Russian, interregional trade unions;
  • other representatives elected by employees.

The legal basis for the activities of trade unions, their right to representation are established in the Federal Law of January 12, 1996 N 10-FZ "On trade unions, their rights and guarantees of activity."

Trade union (trade union) is a voluntary public association of citizens connected by common production, professional interests by the nature of their activity, created for the purpose of representing and protecting their social and labor rights and interests. Trade unions, in accordance with the law, participate in the legal regulation of social and labor relations at all stages of their development.

The interests of employees in collective bargaining, concluding and amending a collective agreement, exercising control over its implementation, as well as in exercising the right to participate in the management of an organization, considering labor disputes between employees and an employer, can be represented by a primary trade union organization - a voluntary association of trade union members working as rule, in one enterprise, in one institution, one organization, regardless of the form of ownership and subordination, acting on the basis of a provision adopted by it in accordance with the charter, or on the basis of general position on the primary trade union organization of the respective trade union.

If there are two or more primary trade union organizations in the organization, they create a single representative body for conducting collective negotiations, developing a single draft collective agreement and concluding it. The formation of a single representative body is carried out on the basis of the principle of proportional representation, depending on the number of trade union members. In this case, a representative must be appointed from each trade union organization.

If a single representative body is not created within five calendar days since the beginning of collective bargaining, the representation of the interests of all employees of the organization is carried out by the primary trade union organization, which unites more than half of the employees.

If none of the primary trade union organizations unites more than half of the workers, then the general meeting (conference) of workers by secret ballot determines the primary trade union organization, which is entrusted with the formation of a representative body.

In accordance with Art. 30 of the Labor Code of the Russian Federation, trade unions can also represent the interests of workers who are not members of a trade union.

The Labor Code of the Russian Federation provides for the possibility of the existence other representatives of employees in cases where:

  • the existing trade union organization unites less than half of the workers;
  • there is no primary trade union organization in the organization.

In the first case, at a general meeting (conference), employees can entrust the representation of their interests to an existing trade union organization or another representative, in the second - to another representative. Such other representative may be councils, commissions, committees, bodies of public amateur performance, etc. It should be noted that the presence of another representative cannot be an obstacle to the exercise by the trade union organization of its powers.

ILO Convention No. 135 "On the protection of the rights of representatives of workers in the undertaking and the opportunities afforded to them" (Geneva, June 2, 1971) proceeds from the fact that when there are both representatives of a trade union and elected representatives in the same undertaking, they must Appropriate measures shall be taken, where necessary, to ensure that the presence of elected representatives is not used to undermine the position of the trade unions concerned or their representatives, and to encourage co-operation on all relevant matters between the elected representatives and the trade unions concerned and their representatives. The functions of non-union representatives cannot include activities that are recognized as the exclusive prerogative of trade unions in the respective country.

employer representatives according to paragraph 1 of Art. 33 of the Labor Code of the Russian Federation are the heads of organizations, employers - individual entrepreneurs(in person) or other authorized persons. The basis for representation may be the law, constituent documents, charters of the organization and other regulatory legal acts, as well as a power of attorney issued by the employer.

When conducting collective negotiations, concluding or changing agreements, resolving collective labor disputes regarding their conclusion or changing, as well as when forming and carrying out the activities of commissions for the regulation of social and labor relations, only employers' associations can be representatives of employers. The Association of Employers is a non-profit organization that unites employers on a voluntary basis to represent the interests and protect the rights of its members in relations with trade unions, state authorities and local governments.

Features of the legal status of associations of employers are established by the Federal Law of November 27, 2002 N 156-FZ "On Associations of Employers". According to this Law such an association is created on the basis of the decision of its founders. The founders of an association of employers may be at least two employers or two associations of employers. Associations of employers can be created on the basis of territorial, sectoral, inter-sectoral, territorial-sectoral principles and be all-Russian, regional, interregional and territorial.

Employers' associations can the following:

  1. to form an agreed position of the members of the association of employers on the regulation of social and labor relations and related economic relations and defend it in relations with trade unions and their associations, state authorities, local governments;
  2. coordinate with other associations of employers the position of the association of employers on the regulation of social and labor relations and related economic relations;
  3. defend the legitimate interests and protect the rights of its members in relations with trade unions and their associations, public authorities, local governments;
  4. take the initiative to conduct collective negotiations on the preparation, conclusion and amendment of agreements;
  5. empower its representatives with the authority to conduct collective negotiations on the preparation, conclusion and amendment of agreements, participate in the formation and activities of the relevant commissions for the regulation of social and labor relations, conciliation commissions, labor arbitration for the consideration and resolution of collective labor disputes;
  6. contribute to in due course proposals for the adoption of laws and other regulatory legal acts regulating social and labor relations and related to them economic relations and affecting the rights and legitimate interests of employers, to participate in their development;
  7. take part in the prescribed manner in the implementation of measures to ensure employment of the population;
  8. conduct consultations (negotiations) with trade unions and their associations, executive authorities, local governments on the main areas of socio-economic policy;
  9. receive from trade unions and their associations, executive authorities, local self-government bodies the information they have on social and labor issues necessary for conducting collective negotiations in order to prepare, conclude and amend agreements, monitor their implementation;
  10. participate in monitoring and forecasting the needs of the economy in qualified personnel, as well as in the development and implementation public policy in the field of secondary and higher professional education, including the development of federal state educational standards, the formation of lists of professions, specialties and areas of training, state accreditation educational activities professional educational organizations and educational organizations higher education, in the manner prescribed by the Government of the Russian Federation.
  11. exercise other rights.

Representatives of employers - federal public institutions, state institutions of the constituent entities of the Russian Federation, municipal institutions and other organizations financed from the relevant budgets, when conducting collective bargaining, concluding or changing agreements, resolving collective labor disputes over concluding or changing agreements, monitoring the implementation of agreements, forming commissions for the regulation of social and labor relations and carrying out their activities are also relevant federal executive authorities, executive authorities of the constituent entities of the Russian Federation, other state bodies, local self-government bodies.

  • Concept, subject, method and system of labor law
    • The concept of the right to work in its historical development
    • Regulation of labor at various stages of social development
      • Labor regulation at various stages of social development - page 2
      • Labor regulation at various stages of social development - page 3
    • The concept of labor law as a branch of law
    • Subject of labor law
    • labor law method
    • Labor law branch system
    • Scope of labor law
    • Legally significant circumstances in labor law
    • Relationship of labor law with other related fields
    • Subject, methods and system of labor law science
    • Goals and objectives of labor legislation
    • Functions of labor law
  • Sources of labor law
    • The concept of sources of labor law and their features
    • Classification of sources of labor law
    • Unity and differentiation legal regulation labor relations
    • Factors of Differentiation
    • Federal, regional, local and local regulation of labor relations
    • The Constitution of the Russian Federation in the system of sources of labor law
      • The Constitution of the Russian Federation in the system of sources of labor law - page 2
    • International legal regulation of labor
      • International legal regulation of labor - page 2
    • Federal laws and regulations in the system of sources of labor law
      • Federal laws and regulations in the system of sources of labor law - page 2
    • Laws and by-laws of the constituent entities of the Russian Federation in the system of sources of labor law
      • Laws and by-laws of the constituent entities of the Russian Federation in the system of sources of labor law - page 2
    • The role of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation in the regulation of labor relations
      • The role of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation in the regulation of labor relations - page 2
    • Normative legal acts of local governments
    • Agreements, collective agreements, other local acts organizations as sources of labor law
  • Labor law principles
    • The concept of legal principles and their types
    • Industry principles of labor law
      • Industry principles of labor law - page 2
      • Industry principles of labor law - page 3
      • Industry principles of labor law - page 4
    • Principles of labor law institutions
      • Principles of labor law institutions - page 2
    • The ratio of general, intersectoral, sectoral and intra-industry principles
    • Implementation of the principles of labor law through the rights and obligations of subjects
  • Subjects of labor law
    • The concept of subjects of labor law
    • Classification of subjects of labor law
    • Legal status of subjects of labor law
    • Citizens as subjects of labor law
      • Citizens as subjects of labor law - page 2
    • Employers as subjects of labor law
      • Employers as subjects of labor law - page 2
    • Representatives of employees as subjects of labor law
    • Representatives of employers as subjects of labor law
    • Russian tripartite commission for the regulation of social and labor relations
    • Bodies of state power and local self-government as subjects of labor law
    • Jurisdictional bodies as subjects of labor law
  • Trade union rights at work
    • The concept of trade unions, the right to unionize
    • Protection of labor rights of workers by trade unions
      • Protection of labor rights of workers by trade unions - page 2
    • Basic rights of trade unions, their classification
      • Basic rights of trade unions, their classification - page 2
      • Basic rights of trade unions, their classification - page 3
    • Guarantees for the exercise of trade union rights
      • Guarantees for the exercise of trade union rights - page 2
  • Labor Relations
    • The system of relations in labor law
    • The concept, content and subjects of labor relations
      • The concept, content and subjects of labor relations - page 2
      • The concept, content and subjects of labor relations - page 3
    • The difference between the labor relation and other relations arising from the use of labor
    • general characteristics employment relationship
    • Relations on the organization of labor and labor management
    • Relations on professional training, retraining and advanced training
    • Relations on conducting collective bargaining, concluding collective agreements and agreements
    • Relations on the participation of workers and trade unions in the establishment of working conditions and the application of labor legislation
    • Relations by liability workers and employers
    • Relationships by Compulsory social insurance workers
    • Labor Law Enforcement Relationships
    • Relations to resolve individual labor disputes
    • Relations on the settlement of collective labor disputes
    • Relations on self-protection of labor rights
  • Collective agreements and agreements
    • Scope of legislation on collective agreements and agreements
    • Principles for the conclusion and development of collective agreements and agreements
      • Principles for the conclusion and development of collective agreements and agreements - page 2
    • Formation of powers in collective bargaining
      • Formation of powers in collective bargaining - page 2
      • Formation of powers in collective bargaining - page 3
    • The concept of a collective agreement, its parties and executing entities
      • The concept of a collective agreement, its parties and executing entities - page 2
    • The procedure for concluding and the terms of the collective agreement
    • Structure and content of the collective agreement
    • Russian tripartite commission for the regulation of social and labor relations: formation procedure and main activities
      • Russian tripartite commission for the regulation of social and labor relations: formation procedure and main activities - page 2
      • Russian tripartite commission for the regulation of social and labor relations: formation procedure and main activities - page 3
      • Russian tripartite commission for the regulation of social and labor relations: formation procedure and main activities - page 4
    • Structure and content of agreements
    • Monitoring the implementation of collective agreements and agreements
      • Monitoring the implementation of collective agreements and agreements - page 2
    • Correlation of legislation with the provisions of collective agreements and agreements
      • Correlation of legislation with the provisions of collective agreements and agreements - page 2
    • Responsibility for violation of the legislation on collective agreements and agreements
  • Employment and employment
    • General characteristics of the legislation on employment of the population
    • Concept of employment and employed citizens
      • The concept of employment and employed citizens - page 2
    • The concept of an unemployed citizen
      • The concept of an unemployed citizen - page 2
    • Legal status of an unemployed citizen
    • concept suitable job
    • The procedure and terms of payment of unemployment benefits
      • Procedure and terms of payment of unemployment benefits - page 2
    • Professional training, retraining and advanced training of unemployed citizens
    • Rights and obligations of employment service bodies in the sphere of labor
    • Promoting the employment of citizens in need of special social protection
    • The concept of community service
    • The concept of mass layoffs and its legal consequences

Representatives of employees as subjects of labor law

As follows from the content of paragraph 1 of Art. 46 of the Code of Civil Procedure of the Russian Federation, in cases provided for by law, organizations, including public ones, that act as representatives of employees, may protect other persons at their request or apply for protection of rights, freedoms and legitimate interests an indefinite circle of people.

From this wording, two types of representatives of employees who are subjects of labor law can be distinguished. Firstly, representatives of employees, as subjects of labor law, can protect the rights of specific employees, that is, carry out individual representation of each individual employee.

Representatives can protect several employees at the same time, but this protection will be of an individual nature, since the requirements are formulated specifically for each protected employee. Secondly, representatives of employees, as subjects of labor law, can act in defense of the rights and legitimate interests of an indefinite circle of employees.

In this case, the requirements of representatives are not individualized in relation to each of the employees, since they relate to an indefinite circle of employees, for example, employees of a separate organization, sector of the economy. In addition to the considered elements of the legal status, there are additional legally significant circumstances for the recognition of employee representatives as subjects of labor law. Moreover, these circumstances differ in individual representation and in the protection of an indefinite circle of employees.

The first type of representation, in addition to the listed elements of the legal status, requires proof of the following legally significant circumstances. Firstly, it is required to prove the existence of the will of each specific employee, whose interests are protected by representatives as subjects of labor law.

In accordance with Art. 53 Code of Civil Procedure of the Russian Federation, the will of the employee to be represented is confirmed either by a power of attorney, or a written statement, or an oral statement by the employee in court, which is recorded in the minutes of the court session.

Consequently, the will of the employee for individual representation is confirmed exclusively by written evidence. Secondly, for individual representation it is required to prove the absence of statutory obstacles to its implementation. In particular, employees cannot entrust the representation of their interests to the bodies of the prosecutor's office, the court. This prohibition is contained in Art. 51 Code of Civil Procedure of the Russian Federation.

Workers can entrust individual representation to trade unions, human rights and other public organizations. For registration of this representation, a written application of the employee is sufficient. Such a statement allows public organization to carry out representation at the level of general powers, for the implementation of which it is not required to draw up written documents on behalf of the represented employee.

General powers include familiarization with documents relating to the represented employee, making copies of such documents and submitting them to labor dispute settlement bodies. The implementation of special powers involves the preparation of documents on behalf of the employee, for example, applications to the employer in order to properly formalize the employment relationship for insurance against industrial accidents and occupational diseases.

Special powers can be formalized only by a power of attorney on behalf of the employee, in which the public organization is entrusted with their implementation. The exercise of each special authority, in particular the preparation and submission of an application on behalf of the employee to the labor dispute resolution bodies, requires a special clause in the power of attorney.

This power of attorney can be certified at the place of residence, work or study of employees. Thus, for individual representation, a public organization must obtain the written consent of each represented employee.

The mere fact of membership in a public organization does not entail the emergence of its right to individual representation. Therefore, as a subject of labor relations with individual representation, a public organization can act only on the basis of the will of the employee.

In paragraph 1 of Art. 46 Code of Civil Procedure of the Russian Federation an exception is made from this rule. Interests of a minor member of a public organization or an incompetent individual a public organization may represent without his will. In this case, the consent of the legal representatives of the person represented is not required.

However, the possibility of representation of incapacitated and minors should follow from the charter of a public organization.

Public organizations can protect an indefinite circle of workers.

The circumstance, the proof of which allows the protection of an indefinite circle of employees, is the presence of an indication in the law. In part 1 of Art. 23 federal law"On Trade Unions, Their Rights and Guarantees of Activity" establishes the right of trade unions to own initiative protect the rights of workers. The implementation of this right of trade unions is connected with the protection of the rights, freedoms and legitimate interests of an indefinite circle of workers.

Trade unions and other public organizations can use their right to protect an indefinite circle of persons when appealing in court against normative legal acts that infringe on the labor rights of workers. In paragraph 1 of Art. 251 of the Code of Civil Procedure of the Russian Federation states that organizations, including public ones, can appeal against regulatory legal acts of state authorities, local governments, officials, if they believe that such an act violates their rights and freedoms guaranteed in the Constitution of the Russian Federation, laws and other normative legal acts.

This Art. 46 of the Code of Civil Procedure of the Russian Federation, the right allows human rights organizations to appeal the content of regulatory legal acts on labor at any level.

Thus, the presence of a direct indication in the federal law, as well as the definition in the charter of a public organization as the goal of its activities to protect the rights and freedoms of citizens on the basis of paragraph 1 of Art. 46 of the Code of Civil Procedure of the Russian Federation allows you to act in defense of the rights and legitimate interests of other persons.

A symbiosis is also possible from individual representation, which turns into protection of the rights and interests of an indefinite circle of persons. For example, a public organization, on the basis of the power of attorney of a particular citizen, applies for the invalidation of a normative legal act. The recognition of this act as invalid entails the termination of its application in relation to an indefinite circle of persons.

Consequently, in this situation, too, a public organization, addressing on behalf of a specific citizen, protects the rights of an indefinite circle of persons. In accordance with paragraph 8 of Art. 251 Code of Civil Procedure of the Russian Federation, the judge refuses to accept the application if there is a court decision that has entered into force, which verified the legality of the normative legal act on the grounds specified in the application.

Thus, the decision to recognize a normative legal act as invalid or invalid is mandatory not only for persons participating in civil proceedings, but also for an indefinite circle of persons in relation to whom this act was applied.

So, for individual representation, the will of a particular citizen is necessary. The presence of such an expression of will can also be a reason for protecting an indefinite circle of employees.

Enshrined in paragraph 1 of Art. 46 of the Code of Civil Procedure of the Russian Federation, the rule allows not only trade unions, but also other public organizations, in particular human rights organizations, to act in defense of an indefinite circle of workers. In Art. 5 of the Federal Law "On Public Associations" dated April 14, 1995, with subsequent amendments and additions, states that a public organization is created to achieve the goals specified in its charter.

In Art. 8 of the named Federal Law, the protection of the common interests of its members is included among the goals of the activity of a public organization. Obviously, the interests of members of a public organization may coincide with the interests of citizens who are not members of a public organization.

Consequently, public organizations named by the Federal Law are entitled to protect an indefinite circle of persons. For example, a public organization has the right to appeal against normative legal acts, including local ones, in the part that violates the rights and freedoms of its members and other persons, that is, an indefinite circle of persons. The named Federal Law allows a public organization to independently determine its statutory goals.

The indication in the charter of a public organization of the protection of the rights and interests of citizens as the goal of its activities also makes it possible to protect an indefinite circle of employees. The possibilities of defining this area of ​​activity in the charter are fixed in Art. 5, 8 of the Federal Law "On Public Associations". For example, human rights organizations are created to protect the rights and interests of citizens. That's why this case protection of an indefinite circle of persons is enshrined in the current legislation, which, by virtue of paragraph 1 of Art. 46 of the Code of Civil Procedure of the Russian Federation allows human rights organizations to appeal against regulatory legal acts of any level.

Thus, the circumstances that characterize legal status representatives of employees as subjects of labor law are a direct indication in the law and the will of a citizen.

Introduction

Social partnership is a system of relationships between employees (representatives of employees), employers (representatives of employers), state authorities, local governments, aimed at ensuring the coordination of the interests of employees and employers on the regulation of labor relations and other relations directly related to them (Art. 23 of the Labor Code of the Russian Federation).

The principles of social partnership were first enshrined in the Charter of the ILO in 1919 and in the Philadelphia Declaration on the goals and objectives of the ILO in 1944. They were further developed in the conventions and recommendations of the ILO. The main principles of the settlement agreement include: equality of the parties, respect for and consideration of the interests of the parties, the interest of the parties in participating in contractual relations, the assistance of the state in the management and development of the settlement agreement on a democratic basis, the authority of the representatives of the parties, freedom of choice when discussing issues, included in the sphere of labor, voluntary acceptance of obligations, the reality of the obligations assumed by the parties, the obligation to fulfill collective agreements, agreements, control over the implementation of adopted collective agreements, agreements, the responsibility of the parties, their representatives for failure to fulfill collective agreements and agreements through their fault.

The Labor Code of the Russian Federation for the first time gives a legislative definition of the concept of "social partnership", which is absent in legislative acts western countries. The ILO also prefers to use a different term in its documents, namely “social dialogue”. There are grounds for such an approach, because the term "partnership" obscures the internal inconsistency of the relationship between the employee and the employer.

Representatives of workers, representatives of employers, authorities

employment contract social employer

1) Representatives of employees in a social partnership are: trade unions and their associations, other trade union organizations provided for by the charters of all-Russian trade unions, or other representatives elected by employees in cases provided for by the Labor Code. Example: Trade union of workers of public education and science of the Russian Federation.

Trade union organizations and trade unions operate through their bodies. In accordance with the Law on Trade Unions, these are bodies formed in accordance with the charter of a trade union, an association (association) of trade unions or a provision on a primary trade union organization. The body of a trade union may also be a trade union representative (trustee) - a trade union organizer, a trade union group organizer, a head of a trade union, an association (association) of trade unions, a trade union body and another person authorized to represent the charter of the trade union, an association (association) of trade unions, the regulation on the primary trade union organization or decision of the trade union.

The interests of the employees of the organization when conducting collective negotiations, concluding and amending the collective agreement, monitoring its implementation, as well as when exercising the right to participate in the management of the organization, considering labor disputes between employees and the employer, are represented by the primary trade union organization, or other representatives elected by employees. Other representatives are elected in the case when the primary trade union organization has not been created or does not unite the majority of workers (Article 31 of the Labor Code).

The interests of employees in collective negotiations on the conclusion and amendment of agreements, the resolution of collective labor disputes regarding the conclusion or amendment of agreements, the control of their implementation, as well as the formation and implementation of the activities of commissions for the regulation of social and labor relations are represented by the relevant trade unions, their territorial organizations , associations of trade unions and associations of territorial organizations of trade unions. Other representatives of employees at these levels of social partnership do not take part.

2) Representatives of the employer during collective bargaining, conclusion or amendment of the collective agreement is the head of the organization or persons authorized by him in accordance with Art. Art. 33 and 34 of the Labor Code, laws, other regulatory legal acts, constituent documents of the organization and local regulations (Article 20 of the Labor Code). Example: CEO limited liability companies.

As a representative of the employer, as a rule, the head of the organization acts (Article 20 of the Labor Code) or, in other words, the sole executive body of the legal entity.

In the event that the organization simultaneously operates the sole and collective executive bodies, one should rely on the provisions of the charter that determine the competence of the governing bodies. If there is no mention of representation in collective labor relations, then the representative of the employer is the person exercising the function of the sole executive body.

All representatives of employers in the system of social partnership have equal rights to participate in collective negotiations, conclude agreements on behalf of those represented, however, only associations of employers participate in the formation of permanent tripartite commissions (Article 35 of the Labor Code).

3) Public authorities.

Employers - state and municipal enterprises, as well as organizations financed from the relevant budgets, can be represented by executive authorities, local governments authorized to represent by law or by employers.

Employers acting in the interests of the state or a municipality may not create associations and authorize the bodies indicated above to represent their interests: executive authorities or local self-government. In practice, such a representative is most often the state body of sectoral management or department.

Executive authorities and local self-government bodies may be authorized to represent by legislation, for example, by a law that determines the features of managing in a particular area, or by a special decision of employers.

In practice, executive authorities are empowered to participate in the social partnership system by sending letters with the appropriate content by the employer.

Commentary on Article 29

1. The Labor Code provides that two groups of representatives can represent employees in social partnership relations: 1) trade union representatives (trade unions and their associations, other trade union organizations provided for by the charters of all-Russian or interregional trade unions) and 2) other representatives not related to professional unions.

The universal representatives of workers who have the right to represent the interests of workers in the framework of social partnership interaction at any level are trade union representatives. Other representatives have the right to represent employees in social partnership relations exclusively at the level of the organization.

When conducting collective bargaining, employees are not entitled to represent organizations or bodies that are created or financed by employers, executive authorities and local governments, political parties (the exception is cases of financing, provided by law), as well as persons representing the employer (for details, see Part 3 of Article 36 of the Labor Code and the commentary thereto). On the legal financing of trade unions by employers, executive authorities, local authorities, see Art. 377 of the Labor Code and commentary to it.

2. Part 2 of Art. 29 specifies the representation of workers at the local level. The interests of workers employed by a particular employer in social partnership relations may be represented either by the primary trade union organization or by other representatives elected by the workers.

In accordance with Art. 3 of the Federal Law of January 12, 1996 N 10-FZ "On trade unions, their rights and guarantees of activity" a primary trade union organization is a voluntary association of trade union members working, as a rule, at one enterprise, in one institution, one organization, regardless of forms of ownership and subordination, acting on the basis of a provision adopted by him in accordance with the charter, or on the basis of a general provision on the primary trade union organization of the relevant trade union. Accordingly, the primary trade union organization does not have complete organizational independence, but is a structural unit of a certain trade union. At the same time, in practice, in a particular organization, workers often create not a primary trade union organization of any particular trade union, but an independent trade union. The question of whether he has the opportunity to represent the interests of employees in social partnership relations should be resolved on the basis of the norms of international law in force in the Russian Federation.

In accordance with ILO Convention No. 87 on Freedom of Association and the Protection of the Right to Organize, the state must recognize the right of workers and employers, without any distinction, to form organizations of their choice without prior authorization, as well as the right to join such organizations for the only condition of obedience to the statutes of these organizations. Relevant Organizations independently develop their charters and administrative regulations, freely choose their representatives, organize their activities. State bodies obliged to refrain from any interference that could restrict this right or prevent its legitimate exercise. Accordingly, it is the workers uniting in a trade union that decide the question of the legal personality professional organization created to represent their interests before the employer.

Thus, it should be recognized that not only the primary trade union organization, but also other trade union structures, the creation of which by the employees of the organization will not contradict the law, can act as a representative of employees in social partnership relations at the organization level.

3. A trade union, trade union organizations may operate without acquiring the rights of a legal entity (Article 8 of the Law on Trade Unions). Trade union organizations that are not legal entities, has the right to represent the interests of its members in the field of labor and other relations directly related to them, including in social partnership relations.

The procedure for collective bargaining with the participation of such representatives has certain specifics: in practice, they are not able to involve experts and specialists in the work on the draft collective agreement, since their work is paid by the inviting party (see part 2 of article 39 of the Labor Code and commentary thereto); they are not dictatorial and cannot be held legally liable for failure to fulfill the obligations borne by the participants in collective bargaining.

4. Other (non-trade union) representatives can be elected by employees only in cases provided for by the Labor Code (see Part 1 of Article 31 of the Labor Code and commentary thereto).

5. At the federal, interregional, regional, sectoral and territorial levels of social partnership, the interests of employees can be represented exclusively by trade unions and their organizations and associations, depending on the level at which this or that partnership is carried out. Associations of workers that are not trade unions or trade union organizations are not entitled to participate in social partnership relations at these levels.



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