The employer makes decisions taking into account the opinion of the relevant trade union body in the cases provided for by this Code.

COMMENT 1.

Decision-making by the employer in accordance with the Labor Code of the Russian Federation is carried out taking into account the opinion of the relevant trade union body of workers or in agreement with it.

In the development of a number of norms of the Labor Code of the Russian Federation, in the commented article, the legislator draws attention to the fact that when making decisions, the employer is obliged to take into account the opinion of the relevant elected body of the primary trade union organization in cases provided for by the Labor Code of the Russian Federation.

It should be taken into account that: -

firstly, it is an elected body of the primary trade union organization representing the interests of all or the majority of employees of the organization or its branch, representative office, other separate structural unit or an individual entrepreneur; -

secondly, this elected body of the primary trade union organization must be collegiate, but not individual; -

thirdly, such an elected body of the primary trade union organization should represent the interests of all or the majority of workers (see commentary to article 372 of the Labor Code of the Russian Federation).

According to part 2 of Art. 8 of the Labor Code of the Russian Federation “in cases provided for by this Code, other federal laws and other regulatory legal acts Russian Federation, collective agreement, agreements, the employer, when adopting local regulations, takes into account the opinion of the representative body of employees (if there is such a representative body)”.

The employer makes decisions taking into account the opinion of the relevant trade union body in cases defined, in particular, Art. 73, 82, 99,105,113, 123, 135, 136, 144,147,154,159,162, 180, 190, 196,212,299,301 of the Labor Code of the Russian Federation.

As is known, the elected body of the primary trade union organization is always the representative body of workers. Another representative body according to Art. 372 of the Labor Code of the Russian Federation can represent the interests of employees of an organization (its branch, representative office, other separate structural unit), an individual entrepreneur only if they do not have a primary trade union organization representing all or most of the employees. At the same time, another representative body of employees can represent their interests only when the employer makes decisions in cases provided for, in particular, Art. 99, 113, 123, 136, 144, 147, 154, 162, 190, 196 TKRF.

Along with the cases established by the Labor Code of the Russian Federation, the employer, when adopting local regulations, takes into account the opinion of the representative body of employees also in the cases provided for: -

other federal laws and other regulatory legal acts of the Russian Federation; -

collective agreement; -

agreements adopted at all levels of social partnership (part 2 of article 8 of the Labor Code of the Russian Federation). 3.

Decision-making by the employer in agreement (and not taking into account the opinion) with the representative body of employees may be when adopting local regulations, if this is provided for by the collective agreement, agreements (Article 8 of the Labor Code of the Russian Federation).

Employer decisions taken in consultation with a representative body of employees may take place especially in cases where they are closely related to the terms of a collective agreement, for example, when adopting rules of internal work schedule, provisions on additional payments and bonuses of a stimulating nature, provisions on the bonus system.

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

Situation: Is the organization required to form a union??

No, you don't have to.

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

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

When to take into account the opinion of the trade union

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

• in other cases provided for by law .

Accounting procedure

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

First, the organization sends to the trade union committee:

• a draft local regulation (for example, Regulations on wages, a collective agreement);

• justification for the project (an explanation of why it is accepted and how it takes into account the interests of employees) (part 1 of article 372 of the Labor Code of the Russian Federation). The justification can be presented, for example, in the form cover letter .

This is stated in part 1 of article 372 Labor Code RF.

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

• agreement with the proposed draft local regulatory act;

• suggestions for its improvement;

• negative opinion on the draft document.

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

This is stated in part 2 of article 372 of the Labor Code of the Russian Federation.

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

positive opinion

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

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

The organization created a trade union. In January, she developed a draft regulation on wages. On January 18, the draft document and the accompanying letter were sent to the trade union committee for approval. On January 22, the Trade Union Committee sent a reasoned opinion to the organization about its agreement with the draft local regulation. The 25th of January Regulations on wages was accepted and approved by the head of the organization, taking into account the opinion of the trade union body.

negative opinion

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

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

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

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

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

Appeal of a local act

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

This is stated in part 5 of article 372 of the Labor Code of the Russian Federation.

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

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

The organization created a trade union. In January, she developed a draft regulation on wages. January 18 draft document and covering letter were sent to the trade union committee for approval. On January 22, the Trade Union Committee sent to the organization reasoned opinion on disagreement with the draft local regulatory act. On January 25, the employer held additional consultations with representatives of the trade union, as a result of which a protocol of disagreements . Due to the fact that the parties did not come to an agreement, the organization approved a local normative act without taking into account the opinion of the trade union. The trade union decided to appeal the adopted document to the labor inspectorate.

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

Termination of the employment contract

It is necessary to take into account the opinion of the trade union if the organization, on its own initiative, dismisses employees who are its members. The employer is obliged to request the opinion of the trade union upon dismissal in connection with:

• downsizing or downsizing (clause 2, part 1, article 81 of the Labor Code of the Russian Federation);

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

• repeated non-fulfillment by the employee of labor duties (clause 5, part 1, article 81 of the Labor Code of the Russian Federation);

• dismissal of employees elected to the commissions for labor disputes(part 3 of article 171 of the Labor Code of the Russian Federation).

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

The organization sends to the trade union committee a draft dismissal order and copies of the documents that are the basis for making this decision (for example, a copy of the protocol attestation commission- upon dismissal due to inconsistency of the employee with the position held) (part 1 of article 373 of the Labor Code of the Russian Federation).

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

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

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

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

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

Situation: how can organizations take into account the opinion of the trade union, if the procedure for such coordination is not established in the legislation (for example, when attracting employees to overtime work)?

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

In addition, the Labor Code of the Russian Federation mentions other cases when the organization must take into account the opinion of the trade union body. For example, when hiring employees to work overtime (parts 2, 4 of article 99 of the Labor Code of the Russian Federation). For a complete list of such cases, see table.

At the same time, the procedure for coordinating the decision of the employer with the trade union in such situations has not been established.

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

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

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

• trade union;

• other representative bodies (representatives).

This is stated in part 1 of article 29 of the Labor Code of the Russian Federation.

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

• the organization does not have a trade union;

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

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

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

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

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

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

That is, in the first case, the organization must take into account the opinion of the trade union, if it is present in the organization. Moreover, if there is no trade union in the organization, and the interests of employees are represented by another representative body ( authorised representative), it is not necessary to take into account his opinion.

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

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

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

A selection of the most important documents on request Representative body of employees(legal acts, forms, articles, expert advice and much more).

Regulations

(as amended on 07/01/2017) Article 29. Representatives of employees

(as amended on 07/03/2016)

"On trade unions, their rights and guarantees of activities"

(as amended and supplemented, effective from 01.01.2017) Article 11. The right of trade unions to represent and protect the social and labor rights and interests of workers

Articles, comments, answers to questions: Workers' representative body

The document is available:

Forms of documents: Workers' representative body

(Prepared for the ConsultantPlus system, 2015)

The document is available: in the commercial version ConsultantPlus

("Personnel issue", 2013, N 8)

The document is available: in the commercial version ConsultantPlus

How does the representative body of employees work?

The representative body of employees is very important for large enterprises that not only work to increase profits and economic growth of the company, but also take care of their subordinates. At the same time, the organization of such associations requires knowledge in the legislative branch, because it is this body that should take part in the preparation of some of the enterprise's regulatory acts.

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

The essence of the representative body

The representative body is often called a trade union, in essence it can be a representative of labor personnel or an association of representatives, possibly from different departments or divisions.

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

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

At the same time, various articles of the Labor Code contain norms that take into account the opinion of the trade union or the representative body, or the choice of both. But these bodies of workers are not interchangeable, while trade unions have more powers.

Employees of the enterprise independently decide whether to create such an association or not. In case of use by the labor collective of the right to form a trade union, it is necessary to follow a certain procedure.

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

At the meeting, a candidate is nominated who will be acceptable to the labor staff and will be able to defend his interests before the company's management. Then there is a secret ballot for one of the candidates. After the votes are counted, the candidate with the standard 50% + 1 vote wins. The voting process and its result must be recorded, for which a secretary is preliminarily elected.

From the history of trade unions

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

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

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

In Russia, the appearance of the first trade union was recorded in 1905 after the revolution. Simple associations of workers have changed their format of action and form of activity. In the same year, the first legislative acts appear that regulate such movements for enterprises in specific industries. economic activity. With the advent of the First World War in Russia, bans on trade unions were created, after it all the bans were lifted.

Competence of the representative body

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

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

The opinion of the representative body of employees is taken into account in a standard manner in accordance with the procedure prescribed by law. When compiling administrative staff new internal document, which requires listening to the opinion of the delegate of the workers' bodies, it is enough to provide a draft version of this document and its justification to the trade union.

Upon receipt of the draft proposed document, the Workers Delegate has 5 days to process it and offer their own comments on the document. All comments or positive opinions that have arisen must be stated in writing, motivating your arguments. When the opinions of the employer and the trade union on the proposed project differ, within 3 days you can discuss the points that do not suit the parties, and come to a compromise, after which the document is approved.

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

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

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

Copying site materials is possible without prior approval in case of installing an active indexed link to our site.

You can't ask without asking!

I didn't forget to put a comma. You will install it yourself by reading this article and using the information obtained from previous articles.

Let me remind you that we are talking about mandatory local regulations. The Labor Code provides for the coordination of such acts with the opinion of the representative body of workers (the elected body of the primary trade union organization). In the previous article, we considered options for adopting the LNA in cases where there is no representative body and if the employer decided to take into account the opinion of the entire team. Now we will talk about the procedure for taking into account the opinion of the representative body of workers, if one exists.

Let's start with definitions.

The Labor Code offers us a choice - whose opinion to take into account. Either the elected body of the primary trade union organization, or another representative body of workers, e.g. Council labor collective. If such bodies exist at your enterprise, their opinion, when adopting mandatory regulations, must be taken into account and drawn up in the form of a protocol, which should be indicated by a conciliatory inscription on the LNA.

I draw your attention to the fact that the creation of a representative body of employees is not the responsibility of the employer. Moreover, the employer does not have the right to take into account the opinion of the body of workers, which he created himself, or finances his work. This is mentioned in Art. 22 of the Labor Code of the Russian Federation, and in Art. 36 of the Labor Code of the Russian Federation, dedicated to collective bargaining, it is directly stated - “It is not allowed to conduct collective bargaining and conclude collective agreements and agreements on behalf of employees by persons representing the interests of employers, as well as organizations or bodies created or financed by employers, executive authorities, local governments , political parties, with the exception of cases provided for by this Code. But creating conditions for the work of such a body is a duty. This duty employer is enshrined in Art. 32 of the Labor Code of the Russian Federation. The creation of conditions also includes the provision of a place for holding meetings, the provision of the opportunity to bring to all employees information about the work of such bodies, about the decisions they have taken, i.e. provide communication channels available to the employer.

What is a representative body of employees of an enterprise

One of the representative bodies of workers is the trade union. We will not dwell on how trade unions are created, what global problems decide how they conduct their business, etc. This is not the topic of our article. Let us dwell only on how the opinion of the trade union should be taken into account if this is required by law and the enterprise has a primary trade union organization. (For those who are interested in the activities of the trade union movement, I recommend reading the FEDERAL LAW “On trade unions, their rights and guarantees of activity” No. 10-FZ of 12.01.1996. The text can be downloaded in the appendices to our article).

So, in order for the employer to take into account the opinion of the trade union, it is necessary that it reflect the opinion of more than half of the employees of the enterprise. If the trade union turned out to be in the minority at the enterprise, then the rest of the employees can authorize it to represent their interests (part 2 of article 30 of the Labor Code of the Russian Federation). It should also be done if there are several trade union organizations at the enterprise and none of them unites the majority of workers. Read below about holding a meeting to select an authorized employee representative.

The Labor Code puts trade unions and other representative bodies of employees of the enterprise on an equal footing (Article 31 of the Labor Code of the Russian Federation). What needs to be done in order for such a body to appear at the enterprise? ( ATTENTION! The actions described in this section of the article must be performed by the employees themselves. The employer cannot participate in this process. The role of the employer is limited to the fact that he does not interfere and creates conditions).

We choose a representative body of employees of the enterprise

In order for the representative body to be and have the right to protect the interests of employees, the following must be done:

• All employees must gather for a general meeting of the labor collective. The meeting of employees is considered competent if more than half of the employees are present at it.
• If the enterprise is large, has several divisions, especially if these divisions are located in different regions, the choice of a representative body can take place in the conference mode. For the conference, delegates are elected from each structural unit of the organization (workshop, department, etc.) in proportion to the number of employees of each unit (for example, one delegate from 30 employees). The conference is considered eligible if it is attended by at least two thirds of the elected delegates.
• On general meeting of the labor collective or at the conference of workers' representatives, a representative body is elected. It is these people who will continue to negotiate with the employer, coordinate local regulations, participate in other approvals of other documents ( eg agreements on termination employment contract). Elections of a representative body must be held by secret ballot. This is where the employer can help - he will provide the means for making ballots (computer, copier). The ballot may look something like this:

• Prior to the beginning of the secret ballot, it is necessary to decide on the quantitative composition of the representative body. There should be more candidates on the ballot. After the voting, a simple vote count determines the rating of applicants. For example, LLC "ENTERPRISE" decided that the representative body of employees would consist of three people, so five candidates were included in the ballot. The numerical composition of the enterprise is 12 people and everyone is present at the meeting. Suppose the votes are distributed as follows:

The result - the representative body of employees of LLC "ENTERPRISE" was formed in the following composition: Oligarkh A.S., Pravdorubov I.I., Chumovoy A.P.

• The result obtained is fixed in the minutes of the meeting.

A copy of this protocol must be handed over to the head of the employer, for further use in lawmaking activities. Now the employer knows for sure that his company has a representative body of workers and the issuance of new local regulations and amendments to existing documents will have to be coordinated with this body.

Parties in the negotiation procedure

Two parties are involved in this procedure - a representative of the employer and a representative of employees, and their relations are regulated by Art. 372 of the Labor Code of the Russian Federation.

employer representative- head of organization, employer - individual entrepreneur(personally) or persons authorized by them (Article 33 of the Labor Code of the Russian Federation).

Primary trade union organization

• If it unites more than half of the employees, it has the right, by decision of its elected body, to send the employer (his representative) a proposal to start collective bargaining on behalf of all employees (part 3 of article 37 of the Labor Code of the Russian Federation)
• If it does not unite more than half of the employees of this employer, it may be authorized, in the manner prescribed by the Labor Code of the Russian Federation, to represent the interests of all employees in social partnership at the local level (Article 31 of the Labor Code of the Russian Federation)

Other representative (representative body)

• Elected by secret ballot at a general meeting (conference) of employees in the following cases:

When employees of this employer are not united in any primary trade union organizations;

None of the existing primary trade union organizations unites more than half of the employees of this employer and is not authorized, in accordance with the procedure established by the Labor Code of the Russian Federation, to represent the interests of all employees in social partnership at the local level. (Article 31 of the Labor Code of the Russian Federation)

ATTENTION! If collective negotiations are carried out in the process of coordination, then the representatives of employees participating in the coordination, during the period of their conduct, cannot be without the prior consent of the body that authorized them to represent:

• subjected to disciplinary action,
• transferred to another job
• or dismissed at the initiative of the employer, with the exception of cases of termination of the employment contract for a misconduct, for which, in accordance with the Labor Code of the Russian Federation, other federal laws provide for dismissal from work (part 3 of article 39 of the Labor Code of the Russian Federation).

We begin the procedure for coordinating the document with the representative body of employees

The employer independently develops a draft local regulatory legal act, which, in his opinion, is necessary for the organization.

Having developed a draft local regulatory act, the employer is obliged to prepare a written justification for the content of such an act, the meaning of which boils down to the need for its adoption, compliance with current legislation and already operating local regulatory legal acts in the organization.

The employer is obliged to send the draft local regulatory legal act and the rationale for the need for its adoption to the elected representative body of employees of this organization.

The elected representative body of employees is obliged, within five working days from the date of receipt of the draft local regulatory legal act, to collectively develop their reasoned opinion on it in writing and send it to the employer. Missing a five-day deadline, untimely submission of a reasoned opinion to the employer allows him to adopt a local regulatory legal act. But this does not mean at all that if it does not comply with the current legislation, it cannot be appealed and canceled (for example, by a court).

Although in Part 2 of Art. 372 of the Labor Code does not mention a reasoned justification by the employer of the draft local regulatory legal act, but taking into account its content, it should be considered the beginning of the specified period from the date the representative body of employees received not only the project, but also a written justification for the need, legality of the development and adoption of this local regulatory legal act . Therefore, the submission of only a draft without justification or justification without an accurate and complete draft of a local regulatory act is not a basis for the start of the five-day period in accordance with paragraph 1 of Art. 14 of the Labor Code of the Russian Federation.

A reasoned opinion on the draft local regulatory legal act must be adopted at a competent meeting of the representative body and, accordingly, formalized in its minutes. The reasoned opinion of the elected representative body may be in the form of an extract from the decision of such a meeting. It is advisable to invite the employer, his representatives involved in the development of the draft local regulatory legal act to such a meeting.

The reasoned opinion of the elected body may contain the following wording:

Return the project for revision (in this case, proposals for improving the local regulatory act should be contained)

The representative body of employees of LLC "ENTERPRISE" within five working days considered the Application of the employer and issued the following reasoned opinion, which was handed over to the manager against signature:

Having received within the period established by law (5 working days) a written reasoned opinion of the representative body of employees on full or partial disagreement with the draft local regulatory legal act, the employer may agree with it or hold consultations with the elected body within three days to overcome the differences that have arisen. At the same time, it should be borne in mind that consultations should not be held with each member of the representative body or its chairman, but with the elected trade union body as a whole, i.e. an expanded meeting of the trade union committee should take place.

The legislator did not specify in what days three days(working or calendar). There is no indication in this regard in Art. 14 of the Labor Code of the Russian Federation. Therefore, taking into account the content of Part 3 of Art. 373 of the Labor Code of the Russian Federation, the three-day period should be calculated in working days.

The organization of additional consultations is assigned to the employer who is obliged to take the initiative and provide technical equipment for their implementation. The consultation process is a negotiation between representatives of the parties. The Code does not establish any formal requirements for the organization of the negotiation process, leaving the solution of issues to the discretion of the parties. Therefore, each of the parties has the right to authorize an unequal number of representatives to participate in the negotiations. Questions about the specific time and place of the negotiations are resolved by agreement of the parties.

Part 3 Art. 372 of the Labor Code allocates three days for additional consultations, calculated from the moment the employer receives a reasoned opinion from the elected representative body. The parties, by agreement between themselves, have the right to extend the period of their holding. The result of the consultations (reaching an agreement or stating disagreements) is documented in a protocol, the signing of which means the completion of this stage of taking into account the opinion of the elected trade union body.

It is advisable to draw up a protocol of disagreements in case of approval of the final version of the local regulatory act with amendments, clarifications, etc. made to it. In this case, the representative body of employees does not need to draw up a new version of a reasoned opinion, which allows the employer, in any outcome of consultations, to accept the discussed draft local regulatory legal act, and in the event of a dispute, to accurately determine the positions of the parties before it arises.

The representative body of employees has the right to appeal against a draft local regulatory legal act not approved by it, but adopted by the employer. An order to approve a draft local regulatory legal act must be recognized as illegal, legally null and void, with all the ensuing consequences. Thus, a local normative legal act that has entered into force and then canceled usually causes a number of legal consequences during the period of its validity (for example, the payment of bonuses or, conversely, the de-bonding of a number of employees). As is known, wage, including a bonus overpaid to an employee due to incorrect application of laws or other regulatory legal acts, cannot be recovered from him (Article 137 of the Labor Code). But if the normative legal act canceled the payments previously due to the employee, then as a result of the cancellation of this local act, the employee has the right to demand their restoration. The period and timing of cancellation can be significant.

The law does not specify the period during which a local normative legal act approved in violation of the considered procedure for the adoption is appealed. Nor is the complainant established by law, i.e. an entity that is entitled to apply for protection of rights. This can be not only a representative body of employees, but also any employee of the organization who believes that the local normative act adopted by the employer worsens his legal position in comparison with the current labor legislation, i.e. contradicts part 4 of Art. 8 TK.

Part 5 Art. 372 of the Labor Code defines the procedural features of consideration of a complaint (application) by an elected body of employees filed with the body of state supervision and control over compliance with labor legislation. The State Labor Inspectorate is obliged to check the legality of the adoption of a local regulatory act within one month from the date of receipt of the complaint (application). If during the inspection facts of violation of the law are revealed, the official state inspection labor is obliged to issue an order to the employer to cancel the local regulatory act. This order is mandatory.

P.S. The law regulates the effect of local normative acts in time, while extending to them the principle that the law does not have retroactive effect. The local normative act comes into force from the day it is adopted by the employer or from the day specified in this local normative act, and applies to relations that arose after its entry into force. In relations that arose before the entry into force of a local regulatory act, the said act applies to the rights and obligations that arose after its entry into force.

When enacting local regulations, the following rules must be observed:

• the approved local regulatory legal act can be put into effect only after the procedure for familiarizing the employees to whom it applies with its content;
• acts that change mandatory conditions of an employment contract, by virtue of Article 74 of the Labor Code of the Russian Federation, can be put into effect no earlier than two months after employees are familiarized with their content;
• in cases where a local regulatory act contains rules that provide for training, instruction and knowledge testing, then such an act can be put into effect only after appropriate training, instruction and knowledge testing. This is documented.

The local normative act must precisely define the time and procedure for enactment, as well as the time of termination of the local normative legal act that previously regulated these relations, and the method of its withdrawal. Here, the procedure for bringing to the attention of employees information about the introduction of a local regulatory act and its content should be established. This information can be contained both in the last section of the local regulatory legal act itself, and in a separate order (instruction) of the employer. This procedure can be regulated by an independent local regulatory legal act of the organization, for example, an enterprise standard or a regulation on the procedure for developing approval and enacting one or another type of local regulatory legal acts.

Banks will be legally allowed to block suspicious transactions

May introduce “female” quotas for managerial positions

Mobile phone instead of online cash register

Since 2017, a new report has been introduced into the statistics. Fines up to 70,000 rubles

Mass blocking of accounts. What caused it?

Transfer to the online cash desks of the swindlers may be postponed

Federal Tax Service: Do not let scammers register companies on you

The growth of mandatory IP contributions may slow down

Bought legal address? Wait for the tax

6-personal income tax for 9 months

Unified calculation of insurance premiums

Delivery of the report SZV-M

Delivery of the report SZV-M

Start getting more from Counselor! Create an account on our website!

Materials from the article

Labor Code. Article 22. Basic rights and obligations of the employer

Labor Code. Article 8. Local regulations containing labor law norms

Federal Law No. 10. On trade unions, their rights and guarantees of activities

Example of a Motivated Opinion

Example of requesting a Motivated Opinion

Minutes of the general meeting of employees on the election of a representative body

And who is the staff member?

We play by the rules!

IP liquidation: detailed instructions

Actions after registration. What can't be forgotten?

Registration of LLC with one founder

197101, St. Petersburg, Bolshaya Pushkarskaya street, 35, office. 413-414

Working hours: from 10:00 to 18:00

Developed at the Business Assistance Center "Sovetnik"

The representative body of workers is

Information and legal support of the Kirov region

Lecturer: Makovleva Ekaterina Evgenievna Head of Direction for Development of Sberbank-AST CJSC, Lecturer at the Department of State, Municipal and Corporate Procurement Management, Moscow Financial and Economic Institute

Is it necessary to have an employee representative body in the organization? If there is no such body in the organization, is it possible to impose on the employer any responsibility for its absence?

The main forms of participation of employees in the management of the organization, according to the first part of Art. 53 of the Labor Code of the Russian Federation are:

- taking into account the opinion of the representative body of employees in cases provided for by the Labor Code of the Russian Federation, the collective agreement;

— holding by the representative body of employees of consultations with the employer on the adoption of local regulations;

— participation in the development and adoption of collective agreements.

The interests of employees when conducting collective bargaining, concluding or amending a collective agreement, exercising control over 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 (part two of Art. 29 of the Labor Code of the Russian Federation).

Actually, it is they who are meant by the representative bodies of workers.

At the same time, it should be taken into account that association, including the creation of trade unions and entry into them; participation in the management of the organization; collective bargaining and the conclusion of collective agreements and agreements through representatives are the rights of employees (part one, article 21 of the Labor Code of the Russian Federation). In accordance with the second part of Art. 8 of the Labor Code of the Russian Federation, the employer is obliged, when adopting local regulations, in certain cases, to take into account the opinion of the representative body of employees only if it exists. Thus, if there is no corresponding body in the organization, the employer does not have the right to form it from among the employees on his own initiative. Therefore, the absence of a representative body in the organization is not a violation of labor legislation and does not entail the application of any measures of responsibility to the employer. The absence of this body does not also mean that the employer is not entitled to adopt local regulations that require coordination with the representative body, if any.

At the same time, if such a body is created by employees, the employer will be obliged to create conditions that ensure the activities of employees' representatives, in accordance with labor legislation, a collective agreement, agreements (Article 32 of the Labor Code of the Russian Federation), as well as perform other duties related to the presence in organization of a representative body of employees, in particular, take into account its opinion in cases provided for by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation, a collective agreement, agreements (part two of Article 8 of the Labor Code of the Russian Federation).

Thus, holding an employer accountable for violating labor legislation may be associated not with the absence of a representative body of employees in the organization, but with the employer’s failure to fulfill the duties assigned to it in accordance with the law (to create conditions that ensure the participation of employees in the management of the organization, taking into account the opinions representative body in the cases provided for this, conducting collective bargaining, concluding a collective agreement, etc.) if such a body is created at the initiative of employees.

Legal Consulting Service Expert GARANT

Response quality control:

Reviewer of the Legal Consulting Service GARANT

The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.

Address: 610000, Kirov, st. Spasskaya, 18, office 2

information and legal support of enterprises

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

All accountants are interested in the fact that there are no claims against them from various state bodies conducting inspections, for example, from the labor inspectorate. And the latter often insists that when approving such internal documents, as a provision on remuneration, on bonuses, and so on, it is imperative to take into account the opinion of the representative body of the employees of the organization. Let's see if the inspectors are right.

What is a representative body

Attention

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

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

Are the regulatory authorities right in making such a requirement?

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

CONCLUSION

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

The same reasoning today and the courts, considering a variety of disputes.

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

Otherwise tax office tried to prove the illegality of accounting in expenses for the amounts of bonuses paid on the basis of the regulation on the conditions of remuneration, approved only CEO without taking into account the opinion of the representative body of workers. But also unsuccessfully, since there was no such body in the organization about Decree 9 AAC dated 08.08.2011 No. 09AP-17511 / 2011-AK, 09AP-17512 / 2011-AK.

The court also denied the employee, who considered the provision on bonuses adopted without “taking into account the opinion” illegal: the representative body of the employer was not created. On the basis of this provision, the employee was paid a bonus in a smaller amount than he expected.

Is it easier to create than to argue?

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

By creating a representative body of workers, the organization takes on a considerable burden

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

If your leadership has decided to go down this path, then here is an approximate scheme of actions.

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

Representative (if we are talking about the "appointee", then collegiate body to nothing) must be elected by secret ballot and by a simple majority of votes from total number present (50% + 1 employee) Part 3 Art. 399 of the Labor Code of the Russian Federation. Compliance with this procedure is confirmed by the minutes of the general meeting, so employees must elect a meeting secretary to conduct it.

What is important to remember in the presence of a representative body

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

When to consider the opinion of the representative body

WARNING THE MANAGER

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

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

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

How to take into account the opinion of the representative body

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

Attention

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

It's about the assertion:

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

We will show the order of "taking into account opinions" in the form of a diagram.

When approving other LNA, the employer may take into account the opinion of the non-trade union representative body in some other way, the main thing is that this opinion be reflected on paper. For the trade union, the above procedure is always obligatory.

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

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

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

What are the benefits of employee representatives?

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

Sometimes the administration itself is interested in developing social partnerships with employees, especially in large organizations. Having an active representative body of workers creates a reputation for a company as a good employer, as it implies an attentive attitude to the needs of workers. This attracts qualified personnel and improves morale.

If the director strives for such a reputation, he can easily push employees to take the initiative, explaining to them the possible advantages. But if he has not yet grown up to such views, then you should not create unnecessary problems for yourself. And you can complain about the illegal decisions of the labor inspector to his head, the chief state labor inspector of the Russian Federation and (or) to the court of art. 361 of the Labor Code of the Russian Federation.

Chapter III. Representation of employees and employers

Labor Code of the Republic of Uzbekistan (Entered into force on April 1, 1996)

Article 21. Representation of employees in the enterprise

Representation of the interests of employees in labor relations and protection of such interests can be carried out by trade unions and their elected bodies at the enterprise or other bodies elected by employees, the procedure for election, terms of office and the quantitative composition of which are determined by the meeting (conference) of the labor collective. Employees themselves determine the body they trust to represent and protect their interests.

All representative bodies act within their powers and enjoy equal rights in protecting the interests of employees.

The presence of other representative bodies at the enterprise should not interfere with the activities of trade unions in the implementation of their functions.

The interests of employees and employers cannot be represented and protected by the same representative body.

The activities of representative bodies may be terminated by decision of the employees who elected them, as well as by the court - if they commit actions that contradict the law.

Article 22. Trade unions

The rights of trade unions and their elected bodies in relations with state and economic bodies, employers are determined by law, charters, collective agreements and contracts.

Article 23

Representative bodies of employees have the right to:

negotiate, conclude collective contracts and agreements, monitor their implementation, make proposals to the employer on the preparation of labor regulations at the enterprise;

Participate in the consideration of issues of socio-economic development of the enterprise;

protect the interests of employees in labor dispute resolution bodies;

To appeal to the court the decisions of the employer and persons authorized by him, if they contradict the legislative or other regulatory acts on labor or otherwise violate the rights of employees.

Representative bodies may take other actions aimed at protecting the interests of employees in social and labor relations, if they do not contradict the law.

The exercise of rights by representative bodies of employees should not reduce the efficiency of the enterprise, violate established order and mode of operation.

Article 24. Obligations of the employer in relation to the representative bodies of employees

The employer is obliged:

observe the rights of representative bodies of employees, promote their activities;

Prior to making decisions affecting the interests of employees, consult with their representative bodies, and in cases provided for by legislative and other regulations about work, - to obtain their consent;

timely consider the proposals of the representative bodies of employees and reasonably inform them in writing about the decisions taken;

To freely allow members of representative bodies of employees to enter the enterprise, to the workplaces of employees whose interests they represent;

provide representative bodies of employees with the necessary information on labor issues, the activities of the enterprise, and other socio-economic issues free of charge;

Provide the necessary conditions for the performance of the representative bodies of employees of their functions;

perform other duties provided for by legislative and other regulatory acts on labor in relation to the representative bodies of employees.

Article 25 Additional labor guarantees for members of employee representative bodies

Members of representative bodies of employees are guaranteed protection from persecution in any form by the employer in connection with the implementation of their representative activities.

The imposition of disciplinary sanctions, the termination of an employment contract at the initiative of the employer with employees elected to representative bodies and not exempted from production work, as well as termination labor relations on the initiative of the employer with employees who were elected to representative bodies within two years after the end of their elective powers, is not allowed without the prior consent of the local labor authority.

Employees released from production work as a result of being elected to elective positions in representative bodies are provided with their former job (position) after the end of their elective powers, and in its absence, another equivalent job (position).

If it is impossible to provide employees elected to representative bodies with the relevant work (position), they enjoy the benefits provided for legislative acts or collective bargaining agreements.

Article 26

Obstruction in any form of the lawful activity of representative bodies of employees is prohibited.

It is not allowed to terminate the activities of representative bodies of employees at the initiative of the employer or persons authorized by him.

The employer, persons authorized by him, who have committed the actions specified in parts one and two of this article, are liable in accordance with the law.

Article 27. Representation of employers at the enterprise

Representation of employers at the enterprise is carried out by officials of the administration within the limits of the powers granted to them by legislative and other regulatory acts on labor, their charters or regulations.

Article 28. Representative bodies of employers

Employers have the right to unite in unions, associations and other public associations. Public associations of employers are created and function as public voluntary organizations that aim to promote the development and increase the efficiency of the economy and entrepreneurial initiative, as well as the implementation of social partnership by representing the interests of enterprises and their owners, protection of their rights in the sphere of economic and labor relations.

Representative body of workers. In the absence of a trade union in the organization, is it obligatory to form a representative body of workers. Who is the initiator and what is the procedure for the formation and execution. Responsibility for making decisions without the participation of a representative body of employees.

Answer

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

In the absence of a representative body of employees, the employer independently approves these documents. Otherwise, the employer would be unreasonably limited in the right to adopt the necessary local acts (clause 3 of the Letter of Rostrud dated 08.12.2008 No. 2742-6-1).

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

The initiators are the employees themselves.

The procedure for the formation and organization of the activities of a representative body is not regulated directly in the Labor Code of the Russian Federation. Therefore, workers must determine this on their own.

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

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

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

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

 trade union;

 other representative bodies (representatives).

This is stated in part 1 of article 29 of the Labor Code of the Russian Federation.

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

 there is no trade union in the organization;

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

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

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

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

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

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

That is, in the first case, the organization must take into account the opinion of the trade union, if it is present in the organization. Moreover, if there is no trade union in the organization, and the interests of employees are represented by another representative body (authorized representative), then it is not necessary to take into account his opinion.

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

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

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