Motivated opinion of the trade union. Accounting for the opinion of the trade union in solving personnel issues (Tishin A.P.)

(see text in previous

When deciding on the possible termination of an employment contract in accordance with paragraphs 2,3 or 5 of part one of Article 81 of this Code with an employee who is a member of a trade union, the employer sends to the elected body of the relevant primary trade union organization a draft order, as well as copies of the documents that are the basis to make that decision.

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

(see text in previous

The elected body of the primary trade union organization, within seven working days from the date of receipt of the draft order and copies of documents, considers this issue and sends its reasoned opinion to the employer in writing. An opinion not submitted within seven days is not taken into account by the employer.

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

(see text in previous

If the elected body of the primary trade union organization expressed disagreement with the alleged decision of the employer, it shall, within three working days, hold additional consultations with the employer or his representative, the results of which are drawn up in a protocol. If there is no general agreement on the results of consultations, the employer, after ten working days from the date of sending the draft order and copies of documents to the elected body of the primary trade union organization, has the right to make a final decision, which can be appealed to the relevant state labor inspectorate. The State Labor Inspectorate, within ten days from the date of receipt of the complaint (application), considers the issue of dismissal and, if it is recognized as illegal, issues an obligatory order to the employer to reinstate the employee at work with payment for forced absenteeism.

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

(see text in previous

Compliance with the above procedure does not deprive the employee or the elected body of the primary trade union organization representing him of the right to appeal the dismissal directly, and the employer - to appeal to the court the order of the state labor inspectorate.

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

(see text in previous

The employer has the right to terminate the employment contract no later than one month from the date of receipt of a reasoned opinion of the elected body of the primary trade union organization. In the specified period, periods of temporary disability of the employee, his stay on vacation and other periods of absence of the employee when he retains his place of work (position) are not counted.

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

(see text in previous

Art. 373 of the Labor Code of the Russian Federation. The procedure for taking into account the reasoned opinion of the elected body of the primary trade union organization when terminating the employment contract at the initiative of the employer

Motivated opinion

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More difficult is the dismissal of workers who are members of the trade union. Termination of employment contracts with them, as well as with employees who are members of the elected collegial bodies of trade union organizations and are not released from their main work, is carried out taking into account the reasoned opinion of the elected body of the primary trade union organization and (or) with the prior consent of the relevant higher elected trade union body in accordance with st.st.

Reasoned opinion of the trade union during the reduction - sample

373, 374 of the Labor Code of the Russian Federation.

Request a reasoned opinion of the trade union. Having made a decision on the reduction of employees who are members of the trade union, the employer must send to the elected body of the primary trade union organization (on which the reduced employees are registered) a draft order, as well as copies of the documents that are the basis for making this decision. The trade union body, within 7 working days from the date of receipt of the draft order and copies of documents, considers this issue and sends its reasoned opinion to the employer in writing. An opinion not submitted within 7 days may be disregarded by the employer.

In case of disagreement of the trade union committee with the decision of the employer, additional consultations are held within 3 working days, the results of which are drawn up in a protocol.

If there is no general agreement on the results of consultations, the employer, after 10 working days from the date of sending the documents to the trade union committee, has the right to make a final decision, which can be appealed to the relevant state labor inspectorate.

Dismissal in connection with the reduction of heads (their deputies) of elected collegial bodies of primary trade union organizations, elected collegial bodies of trade union organizations of structural subdivisions of organizations (not lower than shop and equated to them), not released from their main work, is allowed, in addition to the general procedure for dismissal, only with prior consent corresponding higher elected trade union body.

In the absence of a higher elected trade union body, the employer must seek the opinion of the elected body of the primary trade union organization in the same way as when reducing an ordinary trade union member. This rule does not prevent the employer from going to court if a higher trade union body refuses to give a reasoned consent to the dismissal of such an employee, in order to recognize such a refusal as unreasonable (determination of the Constitutional Court of the Russian Federation dated 04.12.2003 No. 421-O).

At this stage, it is very important to provide the trade union body with the most comprehensive and reasonable information on the dismissed workers, since the legislator has set a rather short time frame for obtaining a reasoned opinion, and all further activities of the trade union to clarify the missing data will only lead to a delay in the process itself.

If the employer does not have evidence confirming the appeal to the trade union committee for a reasoned opinion, this may lead to the reinstatement of the employee at work (determination of the Moscow Regional Court dated 18.03.2010 in case No. 33-3193 / 2010).

Obtaining a motivated opinion of the trade union. The reasoned opinion should be the opinion of the elected body of the primary trade union organization, based on the analysis of the decision of the employer. In this document, the trade union body must indicate whether it considers that the decision of the employer complies with the norms of the law and whether the reduction of each specific employee-member of the trade union is justified. We advise you to study the charter of the trade union in order to determine whether this trade union body is entitled to express a reasoned opinion, which composition of the trade union body should participate in the consideration of this issue, etc.

Until now, the issue of determining the trade union status of an employee remains relevant. How can I find out if the employee being made redundant is a member of a trade union and which trade union to contact for a reasoned opinion?

If the organization has a primary trade union organization (or several), you must contact it with a request for a specific employee. Of course, one should not forget about the norm of Art. 86 of the Labor Code of the Russian Federation, according to which the employer does not have the right to receive and process the employee's personal data about his membership in public associations or his trade union activities. You can turn to the employee himself with a request to report whether he is a member of any trade union (including whether he is registered with the primary trade union organization operating outside the organization). After all, as follows from the same Art. 8 of the Labor Code of the Russian Federation, all personal data of the employee must be obtained from him.

The implementation of the above actions by the employer will be proof that he took all possible options to obtain information about the status of the employee, which in turn, with the possible concealment by the employee of the fact of membership in the trade union, can be interpreted as an abuse of the right by the employee (paragraph 27 of the resolution of the Plenum RF Armed Forces dated March 17, 2004 No. 2). Options such as applying to primary trade union organizations operating outside the organization, territorial trade union organizations and associations (if there is information about the employee’s possible membership in them) are quite possible, but in practice, in most cases, these organizations increasingly refer to the mentioned norm of the Labor Code RF, which regulates the procedure for obtaining personal data of employees. When receiving a reasoned opinion, it must be remembered that the employer has the right to terminate the employment contract no later than one month from the date of receipt of the reasoned opinion of the relevant trade union body.

If during the specified period the reduced employee - a member of the trade union was "on sick leave", on vacation or for other reasons was absent from work when he retains his place of work, then the time of absence in the monthly period is not counted.

Today, not all employees are members of any trade unions, nevertheless, there are trade unions and they operate, therefore, first of all, this material is intended for those employers whose employees are members of trade unions, as well as those who want to become such.

The Labor Code of the Russian Federation in a number of cases contains provisions on the need to take into account the opinion of the trade union. In what cases is it necessary to take into account the opinion of the representative body of workers? In what order is the opinion of the trade union taken into account when deciding to terminate the employment contract at the initiative of the employer? What is the judicial practice on the issues of taking into account the opinion of the trade union in personnel records management?

Cases when it is required to take into account the opinion of the representative body of workers

In accordance with the provisions of the Labor Code of the Russian Federation, the opinion of the representative body of employees must be taken into account in the following situations:
1) when developing local regulations:
- acts establishing the procedure for attestation (Article 82);
- a list of positions of employees with irregular working hours (Article 101);
- acts providing for the division of the working day into parts (Article 105);
- acts establishing the amount and procedure for paying additional remuneration to employees, with the exception of employees receiving a salary (official salary) for non-working holidays on which they were not involved in work (Article 112);
- acts defining the procedure and conditions for granting additional holidays to employees (Article 116);
- acts establishing wage systems (Article 135);
- local regulations providing for the introduction, replacement and revision of labor standards (Article 162);
- internal labor regulations (art. 190);
- the procedure for applying the rotational method of work (Article 297);
- acts establishing the amount and procedure for paying the allowance for the rotational method of work with other employers (Article 302);
- acts defining the amount, conditions and procedure for reimbursement of expenses for paying the cost of travel and baggage transportation to the place of use of the vacation and back (Article 325);
- acts establishing the features of regulation of the work of athletes, coaches;
2) when making decisions:
- on the introduction of a part-time (shift) and (or) part-time working week due to changes in organizational or technological working conditions, on the abolition of this regime. So, in accordance with Art. 74 of the Labor Code of the Russian Federation, in the case when, for reasons related to changes in organizational or technological working conditions (due to changes in equipment and production technology, structural reorganization of production, for other reasons), the terms of the employment contract determined by the parties cannot be saved, they can be changed according to the initiative of the employer, with the exception of changing the labor function of the employee. If these reasons may lead to mass dismissal of workers, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner established for the adoption of local regulations, to introduce a part-time (shift) and (or) part-time working regime. weeks for up to six months. Cancellation of the part-time (shift) regime and (or) part-time working week earlier than the period for which they were established is carried out by the employer, taking into account the opinion of the elected body of the primary trade union organization;
- on the dismissal of employees who are members of the trade union, on the grounds provided for in paragraphs 2, 3 or 5 of part 1 of Art. 81 (art. 82);
- about attraction of workers to overtime work (item 99);
- when drawing up shift schedules (Article 103);
- on the involvement of employees to work on weekends and non-working holidays in cases not provided for in Art. 113;
- when approving the vacation schedule (Article 123);
- when approving the form of the payslip (Article 136);
- on the definition of labor rationing systems (Article 159);
- on determining the necessary forms of training and additional professional education for employees, the list of required professions and specialties;
- when developing and approving rules and instructions on labor protection for employees (Article 212);
- when establishing norms for the free issue of special clothing, special footwear and other personal protective equipment to employees that improve, compared to standard norms, the protection of workers from harmful and (or) dangerous factors present at the workplace, as well as from special temperature conditions or pollution (Art. 221);
- on the duration of the shift for more than one month (Article 299);
- on the approval of the shift work schedule (Article 301).

The procedure for taking into account the opinion of the elected body of the primary trade union organization when adopting local regulations

The employer, 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, before making a decision, must send a draft local regulatory act and justification for it to the elected body of the primary trade union organization representing the interests of all or most employees.
The elected body of the primary trade union organization, in turn, no later than five working days from the date of receipt of the draft of the specified local regulatory act, sends the employer a reasoned opinion on the draft in writing.
If the reasoned opinion of the elected body of the primary trade union organization does not contain agreement with the draft local normative act or contains proposals for its improvement, the employer may agree with it or is obliged to conduct additional consultations with the elected body of the primary trade union organization of workers within three days after receiving the reasoned opinion in order to reach a mutually acceptable solution.
If agreement is not reached, the disagreements that have arisen are documented in a protocol, after which the employer has the right to adopt a local normative act, which can be appealed by the elected body of the primary trade union organization in the relevant state labor inspectorate or in court. The elected body of the primary trade union organization also has the right to start the procedure of a collective labor dispute in the manner prescribed by the Labor Code of the Russian Federation.
Upon receipt of a complaint (application) from the elected body of the primary trade union organization, the State Labor Inspectorate is obliged to conduct an inspection within one month from the date of receipt of the complaint (application) and, if a violation is found, issue to the employer an order to cancel the specified local regulatory act, which is mandatory for execution.

The procedure for taking into account the motivated opinion of the trade union when terminating the employment contract at the initiative of the employer

When deciding on the possible termination of the employment contract in accordance with paragraphs 2, 3 or 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation (including in the event of a reduction in the number of employees or staff of an organization or an individual entrepreneur) with an employee who is a member of a trade union, the employer must send to the elected body of the relevant primary trade union organization a draft order, as well as copies of documents that are the basis for the adoption of the specified solutions.
The elected body of the primary trade union organization, within seven working days from the date of receipt of the draft order and copies of documents, considers this issue and sends its reasoned opinion to the employer in writing. An opinion not submitted within seven days is not taken into account by the employer.
If the elected body of the primary trade union organization expressed disagreement with the proposed decision of the employer, it shall, within three working days, hold additional consultations with the employer or his representative, the results of which are drawn up in a protocol. If there is no general agreement on the results of consultations, the employer, after 10 working days from the date of sending the draft order and copies of documents to the elected body of the primary trade union organization, has the right to make a final decision, which can be appealed to the relevant state labor inspectorate. The State Labor Inspectorate, within 10 days from the date of receipt of the complaint (application), considers the issue of dismissal and, if it is recognized as illegal, issues to the employer a binding order to reinstate the employee at work with payment for forced absenteeism.
Compliance with the above procedure does not deprive the employee or the elected body of the primary trade union organization representing his interests of the right to appeal the dismissal directly in court, and the employer - to appeal against the order of the state labor inspectorate in court.
The employer has the right to terminate the employment contract with the employee no later than one month from the date of receipt of the reasoned opinion of the elected body of the primary trade union organization. In the specified period, periods of temporary disability of the employee, his stay on vacation and other periods of absence of the employee when he retains his place of work (position) are not counted.

Judicial practice on the issues of taking into account the opinion of the trade union

In particular, the issue of the need to take into account the opinion of the trade union was considered in the Appeal ruling of the Moscow City Court dated April 16, 2015 in case No. 33-12691/2015.
The plaintiff U. filed a lawsuit against the joint-stock company, in which he asked that the order to dismiss him be declared illegal, reinstate him at work, collect wages for the time of forced absenteeism and compensation for non-pecuniary damage. In support of the stated claims, the plaintiff referred to the fact that his dismissal due to the reduction in staff was made illegally, since the defendant violated the dismissal procedure (the plaintiff was not transferred to the vacant position offered to him, while he agreed to the transfer, in addition, he was dismissed without taking into account the opinion of the primary trade union organization, of which he was a member at the time of dismissal).
During the trial, the court of first instance found that the plaintiff worked in a joint-stock company on the basis of an employment contract.
By order, the plaintiff was dismissed from the joint-stock company under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation (due to downsizing) with the payment of a severance pay in the amount of the average monthly salary.
From the content of the above-mentioned order, it follows that the basis for the dismissal of the plaintiff was the organization of organizational and staff events by the company.
After examining the evidence presented by the parties and received by the court, the court of first instance came to the correct conclusion that there were no grounds for satisfying the claim. At the same time, the court proceeded from the fact that, as a result of organizational and staffing measures, the division in which the plaintiff held the position was excluded from the staffing table, and in this regard, on August 14, 2014, the plaintiff was handed a warning about the upcoming dismissal from October 15, 2014 under signature with the offer to him of a list of positions for employment, in which vacant positions were indicated, in the future, vacant positions were also offered to the plaintiff.
The conclusions of the court on the dismissal of the plaintiff without taking into account the opinion of the trade union body are recognized as correct.
It follows from the case file that the employer, in accordance with Art. 82 of the Labor Code of the Russian Federation in writing informed the elected body of the primary trade union organization two months before the start of the relevant events and the notification was received by the chairman of the primary trade union organization against signature.
According to the list of employees in the primary trade union organization, presented by the chairman of the trade union organization, plaintiff U. was not among the members of the trade union, since he was expelled from the trade union due to non-payment of membership dues.
On the basis of the stated requirements of the plaintiff were not satisfied.
It should be noted that in accordance with paragraph 26 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" in case of non-compliance by the employer with the requirements of the law on preliminary (before issuing an order) obtaining the consent of the relevant higher elected trade union body to terminate the employment contract or to apply to the elected body of the relevant primary trade union organization to obtain a reasoned opinion of the trade union body on the possible termination of the employment contract with the employee, when this is mandatory, the dismissal of the employee is illegal and he is subject to reinstatement.
An example of how the opinion of the trade union was not taken into account is the case considered in the Appellate ruling of the Khabarovsk Regional Court dated April 15, 2015 in case No. 33-1893/2015.
Citizen B. applied to the court with a claim to recognize his dismissal as illegal and to reinstate him at work. He indicated that he worked for the defendant in a certain position, was notified of the upcoming dismissal due to a reduction in the number of employees. However, B. does not agree with the dismissal, since the employer has not found out whether he has a preferential right to stay at work. In addition, B. was a member of a trade union organization, which expressed disagreement with his alleged dismissal. B. asked the court to recognize his dismissal as unlawful and to reinstate him in his previous position.
By decision of the district court, it was decided to recognize B.'s dismissal as illegal and reinstate him at work.
In the appeal, the defendant's representative asked that the court's decision be canceled and a new one be adopted, since it was adopted in violation of substantive and procedural law. The complaint is motivated by the fact that the conclusions of the court that the dismissal of the plaintiff was made in violation of the procedure for dismissal, provided for by Art. 373 of the Labor Code of the Russian Federation are erroneous. There was an abuse of the right on the part of the plaintiff, since he concealed his membership in the trade union organization from the employer. On the part of the trade union organization, there was also an abuse of the right in the form of ignoring the appeals of the plaintiff's employer to give a reasoned opinion regarding the plaintiff. In addition, after receiving the notification, the trade union organization did not give a reasoned opinion on the fact of the dismissal of the plaintiff, in connection with which the employer had legal grounds for dismissing the plaintiff without taking into account the opinion of the trade union.
As follows from the materials of the case, the employer sent several times to the addresses of the primary trade union organization known to him about the reduction of the position of the plaintiff with the draft order for his dismissal to obtain a reasoned opinion, which were returned due to non-receipt.
The court found that subsequently the trade union organization nevertheless received a notice of the dismissal of the plaintiff's position with the draft order attached. However, the employer issued an order to dismiss the plaintiff before the trade union organization received the said notice.
At the same time, the court correctly pointed out that the employer had the opportunity to track the fact of receipt or non-receipt by the trade union of his postal item, but did not do this, as a result of which he dismissed the plaintiff before the trade union organization received the corresponding message.
The argument of the complaint about the employer's compliance with the rules established by Art. 373 of the Labor Code of the Russian Federation, is insolvent on the above grounds.
The employer's arguments about the abuse of the right by the plaintiff in the form of hiding information about membership in the trade union and abuse of the right by the trade union organization do not deserve attention. The court gave a proper legal assessment to this argument, noting that from the content of the response of the chairman of the primary trade union organization submitted by the defendant, it follows that the employer was informed that the plaintiff was a member of the trade union. Subsequent appeals of the employer to the trade union organization to provide a reasoned opinion on the dismissal of the plaintiff also indicate that before the issuance of the order to dismiss the plaintiff, the employer knew about his membership in the trade union.
Under such circumstances, the court correctly recognized the employer's order to dismiss the plaintiff as unlawful, reinstated him in his previous position and collected wages for the time of forced absenteeism.
Also, the requirements for recognizing the dismissal as illegal and reinstatement were satisfied due to the fact that the procedure for taking into account the reasoned opinion of the elected body of the primary trade union organization was not followed in the Appeal ruling of the Moscow City Court dated 08/06/2015 in case N 33-27729 / 15.

Thus, the opinion of the trade union is required to be taken into account when adopting a number of local regulations, as well as when the employer makes certain decisions, in particular, on the dismissal of employees who are members of the trade union, at the initiative of the employer on the grounds provided for in clauses 2, 3 or 5 of part 2. 1 st. 81 of the Labor Code of the Russian Federation. The procedure for taking into account the opinion of the trade union is regulated by the Labor Code.
The opinion of the trade union is not mandatory, however, full compliance with the established procedure is necessary, otherwise the adopted local acts or decisions may be declared illegal by the court. The greatest number of litigation is related to the dismissal of employees without following the procedure for taking into account the opinion of the trade union in cases where this is mandatory. If this procedure is recognized as unobserved, the dismissal is illegal, and the employee is subject to reinstatement in his previous position.

Introduction

Currently, the Labor Code of the Russian Federation does not provide for the mandatory coordination of any decision of the employer with the representative body of employees (the exception is Article 374 of the Labor Code of the Russian Federation). He introduced the new concept of "motivated opinion". It is he who must be taken into account by the employer when adopting local regulations in cases provided for by the Labor Code of the Russian Federation, other federal laws, a collective agreement, agreements, as well as when terminating an employment contract at the initiative of the employer on a number of articles (provisions) defined by law or a collective agreement.
The fundamental difference between “consent” and “taking into account a motivated opinion” is that the employer, even if the elected body of the primary trade union organization does not agree with the decision being made, has the right to act in his own way, that is, to accept it. Here the main thing for the employer is to comply with the decision-making procedure, that is, to request a reasoned opinion from the elected body of the primary trade union organization.
In turn, the elected body of the primary trade union organization must know its rights and obligations to give a reasoned opinion. As practice shows, a reasoned opinion given in accordance with labor legislation, for example, about the impossibility of the employer to adopt any administrative act (action) helps the employee defend his position in court and restore the violated right.

Chapter 1
1.1. The procedure for taking into account the reasoned opinion of the elected body of the primary trade union organization when terminating the employment contract at the initiative of the employer
Protection by the trade union of the social and labor rights and interests of workers is carried out in various forms. One of them is the participation of the trade union in the rule-making process in order to contribute to the establishment of the most favorable working conditions for workers. These include the participation of the trade union in the consideration of draft legislative and other regulatory legal acts affecting the social and labor rights of workers.
The Labor Code of the Russian Federation, which entered into force on February 1, 2002, among the main forms of participation of trade unions in labor management in an organization, included taking into account the opinion of the representative body of workers in cases provided for by the Labor Code of the Russian Federation, other regulatory legal acts of the Russian Federation, collective agreements, agreements. Only the Labor Code of the Russian Federation has more than 20 such cases.
It is also important that the legislator regulated in detail the procedure for taking into account the opinion of the elected body of the primary trade union organization, completely devoting two separate articles of the Labor Code to it: 372nd (upon the adoption of local regulations) and 373rd (upon termination of the employment contract at the initiative of the employer with unionized workers).
According to the current legislation, violation of the above procedure for taking into account the opinion of the trade union committee by the employer entails the recognition of the local regulations adopted by him as invalid or the recognition of the dismissal of employees on appropriate grounds as illegal.
However, in practice, in many organizations there is a passive and formal attitude of the parties to the above mandatory procedures. This is especially true for compliance with the procedure for taking into account the opinion of the trade union body when adopting local regulations containing labor law norms. Basically, there is either an oral agreement between the representatives of the employer and the chairman of the trade union committee, or a formal expression of the written "consent" of the same chairman of the trade union committee on a document already signed by the employer, which is unacceptable.
The trade union side, instead of accustoming employers to make it a rule to apply to the trade union committee in cases stipulated by law, often does not distinguish itself by exemplary legal behavior in relations with the employer due to elementary ignorance of the specifics and importance of procedural issues. Sometimes employers know the Labor Code better than trade union workers and turn to the trade union organization for a motivated opinion. However, the trade union committee does not motivate its answer or violates the deadlines stipulated by law for its preparation. As a result, ordinary members of the trade union suffer, as they lose the additional protection provided by law. Although it is often possible, by following the required formalities prescribed by law, that unions can effectively enforce the overturning of unlawful decisions by employers.

1.2. Cases of taking into account the opinion of the elected body of the primary trade union organization, provided for by the Labor Code of the Russian Federation when adopting local regulations containing labor law norms (in the manner of Article 372 of the Labor Code of the Russian Federation)
A number of articles of the Labor Code of the Russian Federation deal with taking into account the opinion of the elected body of the primary trade union organization (part 5, part 7 of article 74; article 81; part 4 of article 99; article 105; part 3 of article 112; Part 5 of Article 113; Part 2 of Article 116; Part 1 of Article 123; Part 4 of Article 180; Part 2 of Article 212; Part 4 of Article 297; Part 2 of Article 299; .1 article 301; part 4 article 302; part 8 article 325; part 5 article 326).
A number of articles provide for taking into account the opinion of the representative body of workers (part 2 of article 81; article 101; part 3 of article 103; part 4 of article 135; part 2 of article 136; part 3 of article 147; part .2 article 153; part 3 article 154; part 1 article 162; part 1 article 190; part 3 article 196; part 2 article 221).
At the same time, it should be borne in mind that a representative body means, first of all, a primary trade union organization, as well as other trade union organizations (in the absence of a primary trade union organization). When the law provides for taking into account the opinion of only the primary trade union organization, then it is not required to take into account the opinion of other representatives of workers in this case.
The table below lists the cases of taking into account the opinion of the elected body of the primary trade union organization, provided for by the Labor Code of the Russian Federation (see table 1).
Chapter 2
2.1. The procedure for taking into account the reasoned opinion of the elected body of the primary trade union organization in accordance with Art. 373 upon termination of the employment contract at the initiative of the employer
When deciding on the possible termination of an employment contract in accordance with paragraphs 2 (reduction in the number or staff), 3 (inconsistency of the employee with the position or work performed due to insufficient qualifications, confirmed by the results of certification) or 5 (repeated non-performance by the employee without good reason of labor duties, if he has a disciplinary sanction) of part 1 of article 81 of the Labor Code with an employee who is a member of a trade union, the employer sends to the elected body of the relevant primary trade union organization a draft order, as well as copies of documents that are the basis for making this decision.
For ease of understanding, the information is given in the following table (see table 2).

If the elected body disagrees with the proposed decision of the employer, it shall, within three working days, hold additional consultations with the employer or his representative, the results of which are documented in a protocol. If there is no general agreement on the results of consultations, the employer, after ten working days from the date of sending the draft order and copies of documents to the elected body of the primary trade union organization, has the right to make a final decision, which can be appealed to the relevant state labor inspectorate. The State Labor Inspectorate, within ten days from the date of receipt of the complaint (application), considers the issue of dismissal and, if it is recognized as illegal, issues an obligatory order to the employer to reinstate the employee at work with payment for forced absenteeism.
Compliance with the above procedure does not deprive the employee or the elected body of the primary trade union organization representing his interests of the right to appeal the dismissal directly to the court, and the employer - to appeal to the court the order of the state labor inspectorate.
The employer has the right to terminate the employment contract no later than one month from the date of receipt of a reasoned opinion of the elected body of the primary trade union organization. In the specified period, periods of temporary disability of the employee, his stay on vacation and other periods of absence of the employee when he retains his place of work (position) are not counted.

2.2. Guarantees for employees who are members of the elected collegial bodies of trade union organizations and are not released from their main work
Dismissal on the grounds provided for in paragraph 2 or 3 of part one of Article 81 of the Labor Code of the Russian Federation, heads (their deputies) of elected collegial bodies of primary trade union organizations, elected collegial bodies of trade union organizations of structural divisions of organizations (not lower than shop and equated to them), not exempted from the main work, is allowed, in addition to the general procedure for dismissal, only with the prior consent of the relevant higher elected trade union body.
Within seven working days from the date of receipt from the employer of the draft order and copies of documents that are the basis for making a decision on dismissal on the grounds provided for in paragraph 2 or 3 of part one of Article 81 of the Labor Code of the Russian Federation, an employee from among the employees specified in part one of Article 81 of the Labor Code of the Russian Federation , the relevant higher elected trade union body considers this issue and submits in writing to the employer its decision on agreement or disagreement with this dismissal.
The employer has the right to dismiss without taking into account the decision of the relevant higher elected trade union body if such a decision is not submitted within the prescribed period or if the decision of the relevant higher elected trade union body to disagree with this dismissal is recognized by the court as unfounded based on the employer's application.
Compliance with this procedure does not deprive the employee or the relevant elected trade union body representing his interests of the right to appeal to the court the employer's decision on this dismissal.
Dismissal on the grounds provided for in paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation, employees specified in part one of Article 374 of the Labor Code of the Russian Federation, is allowed, in addition to the general procedure for dismissal, only taking into account the reasoned opinion of the relevant higher elected trade union body.
Within seven working days from the date of receipt from the employer of the draft order and copies of documents that are the basis for making a decision on dismissal on the grounds provided for in paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation, an employee from among the employees specified in part one of this article, the corresponding higher elected the trade union body considers this issue and submits its reasoned opinion to the employer in writing.
The employer has the right to dismiss without taking into account the reasoned opinion of the relevant higher elected trade union body if such an opinion is not submitted within the prescribed period.
If the relevant higher elected trade union body disagrees with the proposed decision of the employer, the parties have the right to hold additional consultations within three working days, the results of which are documented in a protocol.
If a general agreement is not reached as a result of additional consultations, the employer, after ten working days from the date of receipt by the relevant higher elected trade union body of the draft order and copies of the documents that are the basis for the decision to dismiss the employee, has the right to make a final decision, which can be appealed by this employee or representing his interests by an elected trade union body to the relevant state labor inspectorate.
Within ten working days from the date of receipt of the complaint (statement) of the employee or the elected trade union body representing his interests, the state labor inspectorate considers the issue of this dismissal and, if it is recognized as illegal, issues to the employer a binding order to reinstate the employee at work with payment for forced absenteeism.
Compliance with this procedure does not deprive the employee or the elected trade union body representing his interests of the right to appeal this dismissal directly to the court and does not deprive the employer of the right to appeal to the court the order of the state labor inspectorate.
The employer has the right to dismiss on the grounds provided for in paragraph 2, 3 or 5 of part one of Article 81 of the Labor Code of the Russian Federation of an employee from among the employees specified in part one of this article within one month from the date of receipt of a decision on agreement with this dismissal or a reasoned opinion of the relevant higher elected trade union body, or the expiration of the established period for the submission of such a decision or a reasoned opinion, or the entry into force of a court decision on recognizing as unreasonable the disagreement of the relevant higher elected trade union body with this dismissal. The periods of temporary incapacity for work of the employee, his stay on vacation and other periods of absence of the employee, when the place of work (position) is retained, are not counted within the established period.
In the absence of an appropriate higher elected trade union body, dismissal on the grounds provided for in paragraph 2, 3 or 5 of part one of Article 81 of the Labor Code of the Russian Federation of employees specified in part one of this article is carried out in compliance with the procedure established by Article 373 of the Labor Code of the Russian Federation.
Members of the elected collegial bodies of trade union organizations who are not released from their main work are released from it to participate as delegates in the work of congresses, conferences convened by trade unions, to participate in the work of elected collegial bodies of trade unions, and in cases where this is provided for by a collective agreement, also during short-term trade union training. The conditions for release from work and the procedure for paying for the time of participation in these events are determined by the collective agreement, agreement.

​Svetlana KOBYLKINA, Chairman of the Chernyshevsky District Organization of the Trade Union of Public Education and Science Workers of the Russian Federation, Trans-Baikal Territory

Application

Our big win

Judicial practice of the Trans-Baikal Territory Organization for the Protection of Labor Rights in case of dismissal of trade union members under paragraph 5. Art. 81 of the Labor Code of the Russian Federation and non-compliance by the employer with the procedure for taking into account the reasoned opinion of the elected body of the primary trade union organization in accordance with Art. 373

On April 12, 2016, the Judicial Collegium for Civil Cases of the Trans-Baikal Regional Court put an end to a long legal process to challenge disciplinary sanctions, reinstatement, collect wages for forced absenteeism and compensate for moral damage.
In October 2015, a member of the trade union, the head of the Department of Education of the Administration of the Chernyshevsky District of the Trans-Baikal Territory, applied for legal assistance to the Trans-Baikal Territory, Chernyshevsky Regional Committees of the Trade Union.
By order of the head of the administration of the Chernyshevsky district of the Trans-Baikal Territory, she was reprimanded for violations expressed in inaction to exercise proper control over the activities of the director of one of the schools in the district.
Two days later, by order of the head of the administration of the municipal district, the employment contract with her was terminated under paragraph 5 of Article 81 of the Labor Code of the Russian Federation (for repeated failure to fulfill labor duties without good reason).
When analyzing the submitted documents, it was established that during 2015, a disciplinary sanction in the form of a reprimand was unlawfully applied to the head of the education department twice, and the dismissal procedure under paragraph 5 of Article 81 of the Labor Code of the Russian Federation was grossly violated.
Thus, in violation of Art. 373, 82 of the Labor Code of the Russian Federation, a reasoned opinion of the elected body of the primary trade union organization was not requested.
In violation of Art. 140, 84.1 of the Labor Code of the Russian Federation on the day the employment contract was terminated, the employee was not paid all the amounts due from the employer.
The Chief Legal Inspector of the Office of the Trans-Baikal Regional Committee of the Trade Union drew up a lawsuit in defense of the labor rights of a trade union member, in which the following requirements were put forward to the defendant - the administration of the municipal district:
- on the recognition of a disciplinary sanction as unlawful;
- about reinstatement at work;
- on the recovery of average earnings for the time of forced absenteeism;
- Compensation for moral damages.
The consideration of the case in the Chernyshevsky District Court of the Trans-Baikal Territory took place in January 2016.
The interests of the head of the Education Department of the administration of the Chernyshevsky district were represented by the chief legal inspector of the apparatus of the regional committee of the trade union N.A. Titova, the chairman of the Chernyshevsky regional organization of the trade union S.M. Kobylkina was present at the trial.
By decision of the judge of the Chernyshevsky District Court of the Trans-Baikal Territory, the claim was satisfied.
So, orders for disciplinary action and dismissal were canceled, the plaintiff was reinstated, the defendant was charged with the average earnings for the time of forced absenteeism and compensation for non-pecuniary damage.
Immediately after the court decision was announced, the plaintiff resumed his official duties as head of the Education Department of the Chernyshevsky District Administration.
But soon the defendant filed an appeal to the Trans-Baikal Regional Court demanding that the decision of the district court be cancelled.
The Prosecutor's Office of the Chernyshevsky District of the Trans-Baikal Territory sent a protest to satisfy this complaint.
The Trans-Baikal Regional Committee of the Trade Union provided legal assistance to the plaintiff in drafting a response to the defendant's appeal.
On April 12, 2016, the Trans-Baikal Regional Court considered the case on the defendant's appeal to cancel the decision of the Chernyshevsky District Court. The appeal was dismissed.
Member of the trade union, head of the Department of Education of the Administration of the Chernyshevsky District of the Trans-Baikal Territory successfully continues his labor activity.
Below is the judgment in this case.

ZABAIKALSKY REGIONAL COURT
APPEALS DETERMINATION

Judicial Collegium for Civil Cases of the Trans-Baikal Regional Court consisting of:
presiding judge
Ivanova A.V.
judges regional court Pogorelova E.A.
Usoltseva S.Yu.
with the participation of the prosecutor Kamratova A.G.
under the secretary Kashkarova N.A.

examined in open court in the city of Chita on April 12, 2016, a civil case under the claim of Chaika Oh.The. to the administration of the municipal district "Chernyshevsky district" on the recognition of the disciplinary sanction as illegal, reinstatement, recovery of wages for the time of forced absenteeism and compensation for non-pecuniary damage,
on the appeal of the head of the administration of the MR "Chernyshevsky district" Chtchyan M.V.,
on the decision of the Chernyshevsky District Court of the Trans-Baikal Territory dated<Дата>, which decided: claims Chaika Oh.The. partially satisfy.
<Дата>on the involvement of the head of the MUUO administration of the MR "Chernyshevsky district" Chaika Oh.The. to a disciplinary sanction in the form of an unlawful reprimand.
Recognize the order of the head of the administration of the municipal district "Chernyshevsky district" No. p dated<Дата>on the involvement of the head of the MUUO administration of the MR "Chernyshevsky district" Chaika Oh.The. to disciplinary action in the form of unlawful dismissal.
Restore Chaika O.V. in the position of head of the municipal institution of the Department of Education of the Administration of the Municipal District "Chernyshevsky District" with<Дата>.
collect from the administration of the municipal district «Chernyshevsky district» in favor of Chaika Oh.The. wages for the period of forced absenteeism for the period from<Дата>By<Дата>in total<данные изъяты>kopecks.
collect from the administration of the municipal district «Chernyshevsky district» in favor of Chaika Oh.The. compensation for non-pecuniary damage in the amount<данные изъяты>rubles.
In satisfaction of the rest of the claims Chaika Oh.The. refuse.
Collect from the administration of the municipal district "Chernyshevsky District" the state duty to the local budget<данные изъяты>kopecks.
The decision of the court regarding the restoration of Chaika Oh.The. work is to be carried out immediately.

Having heard the report of the judge of the regional court Ivanov A.V., the panel of judges established:
Chaika O.V. applied to the court with the above-mentioned claim, indicating that on the basis of order No. p of the head of the administration of the municipal district "Chernyshevsky District" dated<Дата>Chaika O.V. was appointed to the post of head of the Department of Education of the Administration of the Municipal District "Chernyshevsky District". At MOU SOSH<адрес>there was a summer recreation camp "Robinson", the material base of the camp for the summer of 2015 did not meet the conditions for children's recreation. At the repeated requests of the plaintiff and the director of the MOU SOSH<адрес>on the allocation of funds for the repair of the camp by the head of the administration of the MR "Chernyshevsky district" Chtchyan M.V. no action was taken.
<Дата>MOU SOSH<адрес>found guilty of an administrative offense, under Part.2 Article. 20.4 of the Code of Administrative Offenses of the Russian Federation, and a penalty was imposed in the form of an administrative fine in the amount of<данные изъяты>rubles. In July 2015, the order of the head of the administration of the Chernyshevsky District municipal district decided not to open the camp. At the time of the adoption of this decision, the amount of the administrative fine had increased to<данные изъяты>rubles.
<Дата>order №-r head of administration MR «Chernyshevsky district» Chaika Oh.The. a reprimand was issued for the lack of proper control over the activities of the director of the MOU secondary school<адрес>. He believes that there were no grounds for bringing the plaintiff to disciplinary liability, since the lack of funding for the summer camp, bringing the school to administrative responsibility in the form of a fine was brought to the attention of the head of the Chernyshevsky District MR. Documents on an administrative offense in relation to MOU SOSH<адрес>were transferred to the lawyer of the MUUO for execution.
The plaintiff believed that when imposing a disciplinary sanction, the severity of the misconduct and the circumstances under which it was committed were not taken into account. Chaika O.V. is a member of the trade union, however, upon dismissal, the reasoned opinion of the trade union organization was not requested. He believes that the dismissal procedure was violated. She asked the court to recognize the imposition of a disciplinary sanction as illegal, reinstate her at work, collect wages for the time of forced absenteeism and compensation for non-pecuniary damage.
The Court upheld the above decision.
The appeal head of the administration MR «Chernyshevsky district» Chtchyan M.The. asks for a decision to cancel, to make a new decision to refuse to satisfy the claims in full. The administration of the MP "Chernyshevsky District" considers the decision of the Chernyshevsky District Court illegal for the following reasons. On the basis of the order of the head of the administration of the municipal district "Chernyshevsky district" No.<Дата>Chaika O.V. was appointed head of the municipal institution of the Department of Education of the Administration of the Municipal District "Chernyshevsky District". The duties of the head of the education department include control over the activities of subordinate educational institutions, as well as over the heads of these institutions. The complainant indicates that for a long time Chaika Oh.The. as the head of the MUUO of the administration of the MP "Chernyshevsky District", she repeatedly violated the performance of her duties, did not exercise proper control over the activities of the centralized accounting department of the MUUO of the administration of the MP "Chernyshevsky District", through which direct funding is provided for all municipal budgetary institutions in the field of education, subordinate to the department education. Limiting himself to a verbal remark, the head of the administration of the Chernyshevsky District MP primarily relied on O.V. Chaika’s understanding of his special role as a leader and responsibility, positive conclusions and, given the previously existing disciplinary sanction, the imposition of another would lead to her dismissal under paragraph 5 of part .1 st. 81 of the Labor Code of the Russian Federation. These circumstances indicate the intentions of the head of the district administration to create additional conditions for O.V. Chaik to work on mistakes and prevent them from happening in the future.
The administration of the municipal district "Chernyshevsky district" believes that the inaction of the head of the education department O.V.<Дата>, is illegal, since the failure to exercise proper control on the part of the head of the department of education Chaika O.The. for the director of the subordinate educational institution of the MOU SOSH<адрес>Matafonova V.A. and an employee of the education department - a lawyer of the MUUO for not appealing this decision and not providing legal assistance in drawing up a complaint, resulted in inefficient expenses of the district budget in the amount of 1,200,000 rubles.
Thus it is the conclusions of the court, set out in the decision, does not correspond to the circumstances of the case, since the circumstances of improper performance by the head MUUO Chaika Oh.The. were fully and comprehensively examined during a targeted audit to assess the quality of work of the heads of municipal institutions of the Chernyshevsky District municipal district, conducted on the basis of the order of the head of the administration of the Chernyshevsky District municipal district No.<Дата>, on the implementation of decisions of control and supervisory authorities, courts, aimed at preventing the growth of accounts payable and violations of budget legislation, and are reflected in the act dated<Дата>prepared on the basis of its results, written evidence obtained in the course of the work of the commission, submitted to the court. The court had no grounds not to trust the materials of the target check. Chaika O.V. did not provide proper evidence of the fulfillment of the duties provided for in clause 6 of section III of the Job Description of the Head of the MUUO and clause 5 of the Order. The plaintiff's improper performance of his official duties - control - led to an inefficient increase in the expenses of the district budget.
The court ignored the essential fact that at the time of the issuance of judgment No.<Дата>about attracting MOU SOSH<адрес>to an administrative penalty in the form of a fine of 400,000 rubles, the Robinson school camp was mothballed. The absence of a panic button, a malfunction of the fire alarm and other inconsistencies in fire safety did not violate anyone's rights and did not pose a threat to the life and health of children. Moreover, the work to prepare the premises of the camp for the reception of children has not been started. The camp is in this state for 10 months of the year. Its activities are seasonal in nature. Thus, the inaction of school directors V.A. on appealing the decision of the supervisory service, as well as the inaction of the head of the MUUO O.V. repeated improper performance by the head of the MUUO of his duties. The above leaders, instead of proving the fact that the camp was at the time of the check on conservation, limited themselves to an application for the allocation of funds to pay off the fine.
The head of the MUUO - the employer has not yet given an assessment to the actions (inaction) of school principals, even after the issuance of resolution No.<Дата>, nor after the entry into force of the court decision to increase the amount of the fine, considering it his duty only to inform the district administration about the need to allocate funds for the payment of fines.
Decision of the Chernyshevsky District Court dated<Дата>based on the inconsistency of the arguments of the plaintiff, who tried to interpret everything in his favor. For some reason, the court did not take into account that the department of education is a higher organization for educational institutions. It is the main manager of budgetary funds in the field of education, and also performs control functions, provides legal assistance to subordinate institutions, and is responsible for the implementation of the budgetary legislation of the Russian Federation.
The court also did not investigate all the circumstances of the case, in particular, it was not summoned to the court session, the former lawyer of the MUUO Bazarova T.D. was not interrogated as a witness, who, having allegedly studied resolution No.<Дата>expressed her opinion on the inappropriateness of his appeal. while Chaika Oh.The. did not provide any documented conclusions of the lawyer Bazarova T.D. against the above decision.
The conclusions of the court, based solely on the testimony of O.V.
Thus, the administration of the municipal district "Chernyshevsky district" believes that the disciplinary sanction issued on the basis of order No.<Дата>, was imposed in accordance with the requirements of articles 192, 193 of the Labor Code of the Russian Federation, in compliance with the statutory period.
In addition, Chaika O.V. As the head of the MUUO, she systematically did not take any disciplinary measures against her subordinates, which resulted in the burdening of the budget of the Chernyshevsky District municipal district with a fine in the amount of<данные изъяты>rubles.
Termination of the employment contract at the initiative of the employer in connection with the repeated non-fulfillment by the employee without good reason of labor duties, if he has a disciplinary sanction under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, must be carried out taking into account the reasoned opinion of the elected trade union body of this organization.
Consequently, a request for a reasoned opinion of the body of the primary trade union organization was sent<Дата>to the body of the primary trade union organization of the administration of the municipal district "Chernyshevsky district".<Дата>a response was received from the primary trade union organization, which indicated that a reasoned opinion could not be issued, since Chaika O.V., the head of the MUUO of the administration of the MP "Chernyshevsky district", is not a member of the primary trade union organization of the administration of the MP "Chernyshevsky district".
Thus, the requirements of Art. 371 of the Labor Code of the Russian Federation by the district administration upon termination of the employment contract under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation with Chaika O.V. observed.
In written objections to the appeal Chaika Oh.The. and Assistant District Attorney Sedko I.A. each individually asking the court to dismiss the appeal of the administration of the MR "Chernyshevsky District", the decision unchanged, since they consider it lawful, justified and lawful.
After checking the case materials, discussing the arguments of the appeal and objections to it, after hearing the representative of the defendant by proxy Zhalsanov Ch.N., who supported the appeal, the plaintiff O.V. ., who believed the decision of the court to be left unchanged, the panel of judges comes to the following.
In accordance with paragraph.5 h.1 Article. 81 of the Labor Code of the Russian Federation, an employment contract can be terminated by the employer in the event of repeated non-fulfillment by the employee without good reason of labor duties, if he has a disciplinary sanction.
At the same time, the obligation to prove the legality and validity of the dismissal in accordance with Art. 56 Code of Civil Procedure of the Russian Federation is assigned to the employer.
From the order of<Дата>No.-p on the dismissal of Chaika Oh.The. it is impossible to conclude what misconduct of the employee served as the basis for terminating the employment contract, the grounds for issuing this order are not given.
Evidence of improper performance of labor duties Chaika Oh.The. not submitted to the court of first instance.
In accordance with Part 1-2 of Art. 373 of the Labor Code of the Russian Federation, when deciding on the possible termination of an employment contract in accordance with clauses 2, 3 or 5 of part one of Article 81 of this Code with an employee who is a member of a trade union, the employer sends a draft order to the elected body of the relevant primary trade union organization, as well as copies documents that are the basis for making the said decision.
The elected body of the primary trade union organization, within seven working days from the date of receipt of the draft order and copies of documents, considers this issue and sends its reasoned opinion to the employer in writing. An opinion not submitted within seven days is not taken into account by the employer.
From the case file it follows that Chaika Oh.The. is a member of the trade union organization MUUO MR "Chernyshevsky District", which is confirmed by the list of members of the trade union organization (vol. 1 case sheet 215). Meanwhile, the opinion of the trade union organization of the MUUO on the dismissal of the employee by the employer was not requested, copies of the documents were not sent to the trade union body in the prescribed manner.
Under such circumstances, the court of first instance came to the correct conclusions about the lack of evidence by the defendant of the grounds for the dismissal of the plaintiff under paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation and on violation of the procedure for dismissal.
The arguments of the appeal about the presence of grounds for attracting Chaika Oh.The. to disciplinary responsibility on the basis of order No.-r dated<Дата>were the subject of discussion in the court of first instance and were reasonably not accepted by the court as wealthy.
The arguments of the complainant that the court did not interrogate the lawyer of the MUUO Bazarova T.D. as a witness cannot be taken into account either, since such petitions were not made by the defendant in court.
Other arguments of the appeal boil down to a reassessment of the evidence available in the case and do not refute the court's conclusions that the grounds for dismissal of the plaintiff were not proven.
Under these circumstances, the trial court finds no grounds to satisfy the appeal on its arguments.
However, the panel of judges cannot agree with the conclusions of the court on the restoration of Chaika Oh.The. at work with<Дата>, since the employee must be reinstated at work from the date following the day of dismissal. According to the order of dismissal Chaika Oh.The. fired from<Дата>, the last working day was<Дата>, therefore, the plaintiff should be reinstated at work with<Дата>. Therefore, this part of the decision of the court is subject to change.

Guided by Art. 328 Code of Civil Procedure of the Russian Federation, the Judicial Board determined:
decision of the Chernyshevsky District Court of the Trans-Baikal Territory dated<Дата>partially change. Restore Chaika O.V. at work with<Дата>. The rest of the court's decision to leave unchanged, the appeal - without satisfaction.

presiding
A.V.IVANOV
Judges
E.A. POGORELOVA
S.Yu.Usoltseva

Bibliography

1. Labor Code of the Russian Federation dated December 30, 2001 No. 197-FZ (Labor Code of the Russian Federation).
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4. Decree of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts of the norms of the Labor Code of the Russian Federation” dated March 17, 2004
5. Ilyasova Yu.P. On taking into account the motivated opinion of the elected trade union body. - M.: Scientific Center of Trade Unions, 2008.
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