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

Industry principles of labor law - page 2

2.6. Equal payment principle wages for work of equal value. This principle follows both from the content of international legal norms and from Art. 29 of the Labor Code of the Russian Federation, which obliges employers to provide equal pay for work of equal value.

1. availability of equal rights and equal opportunities to receive equal remuneration while fulfilling the same labor standards
2. the absence of differences not provided for by law when establishing different size wages of employees

The listed legally significant circumstances are subject to verification when making legal decisions on the amount of the employee's salary, their proof allows us to conclude that the salary is paid to the employee without violating this norm-principle.

In practice, this norm-principle is violated by establishing different remuneration for employees who are on the staff of the organization and who are removed from the staff in connection with the upcoming dismissal to reduce staff, although the employees perform the same functional duties and the same amount of work.

In the event of such situations, the norm-principle under consideration is violated, which allows employees who receive a lower wage to demand its payment in the same amount as those on the staff of the organization.

2.7. Prohibition of discrimination in the regulation of labor relations. This principle is enshrined in various regulatory legal acts, as well as in Art. 3 of the Labor Code of the Russian Federation. From the content of this norm-principle, the following legally significant circumstances should be distinguished:

1. availability of equal opportunities for exercising labor rights
2. the absence of restrictions and benefits depending on the circumstances prohibited or not provided for by law
3. establishing differences, exceptions, preferences, as well as restrictions on the rights of employees only according to established federal law grounds

It should be remembered that in Part 2 of Art. 3 of the Labor Code of the Russian Federation and other regulatory legal acts, a non-exhaustive list of circumstances is given, the proof of which allows us to conclude that there is discrimination in the regulation of labor relations. Such circumstances may also include others not provided for by federal law.

At the same time, in Part 3 of Art. 3 of the Labor Code of the Russian Federation exhaustively defines the possibilities for establishing differences, exceptions, preferences and restrictions in the regulation of labor relations. Their introduction is possible if the following legally significant circumstances are proved:

1. availability of conditions for establishing differences, exceptions, preferences and restrictions in the regulation of labor relations only in federal law
2. establishing specified conditions in connection with the requirements inherent in this work or due to the special protection of the state for persons in need of increased social and legal protection

The proof of the listed legally significant circumstances allows us to conclude that there is no discrimination in the legal regulation of labor relations, and vice versa, the lack of evidence of any of these circumstances allows us to speak about the presence of discrimination against employees.

2.8. The presence of associations for the protection of rights and interests in the process labor activity . Employees and employers have the right, in accordance with the current legislation, to create associations for the protection of rights and interests in the course of labor activity.

The implementation of this right occurs through the established state guarantees that ensure the creation, independence of activity and exclusive grounds for the termination of the activities of the named associations of workers and employers. Such state guarantees constitute the content of this principle.

When making legal decisions, these guarantees act as legally significant circumstances for making decisions on the creation of these associations, non-interference in their activities and when making decisions to terminate the activities of public associations.

2.9. Participation of employees in the management of the organization. In accordance with Art. 52 of the Labor Code of the Russian Federation, the right of employees to participate in the management of the organization directly or through their representatives is regulated by the Labor Code of the Russian Federation, federal laws, founding documents organization, collective agreement.

Therefore, the implementation of this principle is associated with the guarantees established in the listed regulatory legal acts. These guarantees should act as legally significant circumstances when translating the principle in question into specific relations.

Currently, the principle of participation of employees in the management of the organization is inactive, since the legislation does not provide for any form or guarantee of such participation. In this connection, its implementation can take place exclusively through local acts of the organization that are under the control of the employer. Although the participation of employees in the management of the organization can contribute to the implementation of the principle of fair and decent wages.

One of the forms of such participation may be the distribution of profits of the organization with the consent of the representative body of employees. In this case, there is hope that a decent amount of profit will be directed to pay workers. Whereas now the workers general rule, receive no more than 5 percent of the organization's profits.

While partners, which should be employees and employers, apparently, should have equal rights in the distribution of profits. Otherwise, the so-called partnership turns into an empty phrase.

Pages: 1 2 3 4

The wages are based on many principles that depend on the prevailing form of ownership in social production, the state policy in ensuring the minimum wage, the level of development national economy, the national wealth of the country, etc.

The organization of remuneration should be based on the following principles:

a) equal pay for equal work;

b) differentiation of wages depending on the quantity and quality of labor;

c) reasonableness of payment;

d) flexibility of wage systems;

e) ensuring material interest in high end results, which requires an important condition.

f) a systematic increase in the level of wages, which is caused not only by rising prices, but also by the law of increasing human needs;

g) outstripping growth rates of labor productivity in comparison with the growth of wages;

h) the independence of enterprises in determining specific wages, except for the minimum level of wages, which is established by the state.

The principle of equal pay for equal work is a fundamental principle of pay. Labor legislation, in accordance with generally recognized international standards, establishes this principle of remuneration. First of all, this principle is enshrined in the provision of the Universal Declaration of Human Rights, adopted by the UN General Assembly on December 10, 1948. Article 23 of the Declaration provides that everyone, without any discrimination, has the right to equal pay for equal work and to a fair and satisfactory a reward that ensures a worthy existence for a person for himself and his family. Universal Declaration of Human Rights: Adopted by the UN General Assembly 10.12.1948 // Russian newspaper. - 1995. - No. 67. In accordance with the principles enshrined in the Declaration, Article 37 of the Constitution of the Russian Federation proclaims the right to remuneration for work without any discrimination and not lower than the Minimum Wage established by federal law. This right refers to the basic labor rights of an employee. At the same time, it can be considered as a principle of legal regulation of wages.

In establishing any system of wages for work of equal length and complexity, equal pay must be provided. In accordance with Article 22 of the Labor Code of the Russian Federation, the employer is obliged to provide employees with equal pay for work of equal value. Unjustified differences in wages, i.e. differences unrelated to business qualities employee, the quantity and quality of his work, are considered as discrimination (art. 3, 132 TKRF) Labor Code of the Russian Federation dated December 30, 2001 No. 197-FZ (as amended and supplemented, effective from September 1, 2013) // SZ RF. - 2002. - No. 1 (part 1). - Art. 3. .

That is, this principle means the prevention of discrimination in wages by sex, age, nationality and religion, etc., as well as the observance of fairness in the distribution of wages at the enterprise based on an adequate assessment of the same work through its payment.

The next principle is the principle of wage differentiation depending on the quantity and quality of labor.

Wage differentiation - the establishment of unequal wage levels for various categories workers in certain industries and regions of the country. It reflects the difference in the duration and intensity (intensity) of the work of workers, in the complexity of their working conditions, in the qualifications of workers, as well as in the social significance of a particular type of work.

The principle of differentiation of wages - the differentiation of earnings is carried out on the basis of the criteria for the qualifications of employees and the complexity of the functions they perform, taking into account working conditions and the results of the enterprise as a whole.

In the general system of wage differentiation, intra-industry, inter-industry and inter-district are distinguished. Intra-industry and inter-industry differences in wage levels are provided by the tariff system and the use of incentive payment systems.

Intra-industry wages establish differences in remuneration by qualification and professional groups of workers in accordance with the complexity of the work performed, as well as by type of production and working conditions.

Intersectoral wages are formed, first of all, under the influence of the characteristics of the labor process in individual sectors (the content of labor functions, industry-wide working conditions, the professional and qualification structure of workers, etc.), as well as under the influence of the role and significance various industries in technical progress and development of the entire national economy.

Interregional wages are determined by the sectoral structure of production by regions, the importance of economic regions and the prospects for their development, as well as their natural and climatic conditions. The purpose of the government-mandated wage differentials across regions of the country is to ensure equal conditions for the reproduction of the labor force due to the difference in the structure of consumption and the level of prices for a number of consumer goods. The establishment of differences in pay by districts is also dictated by the need to attract and retain personnel in those districts that lack labor. State regulation wages by regions of the country is carried out through a system of regional coefficients to wages.

The Labor Code of the Russian Federation allows the parties employment contract independently determine the amount of remuneration by agreement of the parties and without limitation by the maximum limit. At the same time, in Article 7 of the International Covenant "On Economic, Social and Cultural Rights" of 1966 On Economic, Social and Cultural Rights: International Pact [dated 16.12.1966] // Bulletin of the Armed Forces of the Russian Federation. - 1994. - No. 12. provides for the right of everyone to remuneration ensuring, at a minimum, fair wages and equal pay for work of equal value without any distinction; a satisfactory existence for themselves and their families.

Article 37 of the Constitution of the Russian Federation, as well as Article 132 of the Labor Code of the Russian Federation, proclaimed the inadmissibility of discrimination when establishing and changing the conditions of remuneration.

According to Article 3 of the Labor Code of the Russian Federation, persons who believe that they have been discriminated against in the sphere of labor have the right to apply to the court for the restoration of violated rights, compensation for material damage and compensation for moral damage.

Article 2 of the Labor Code of the Russian Federation fixed as one of the basic principles of the legal regulation of labor and other relations directly related to them ensuring the right of each employee to timely and full size payment of fair wages. The words "fair wages", as a rule, are perceived differently by employees and the employer, not to mention the deliberately evaluative nature of this concept.

Fair remuneration requires the establishment and application of uniform criteria that determine the amount of wages, which must be taken into account when increasing it, namely:

Qualification of the employee;

The complexity of the work performed;

Quantity and quality of labor expended.

When hiring, wages must be set on the basis of the above criteria. It is advisable to justify the increase in wages, guided by the fact that in the course of the labor activity of each individual employee, it is possible to increase the level of qualification of this employee.

The next principle is the flexibility of wages. The remuneration system provides the greatest flexibility in the formation of the earnings of employees of all categories and positions, takes into account the effectiveness of their work, professionalism and personal qualities.

Internal, microeconomic wage flexibility is related to the results of the enterprise, i.e. its profitability and profitability, as well as with the individual performance of the employee himself. Currently, almost 80% of workers in economically developed countries are on time wages and the established rate of output. Therefore, the individual remuneration of an employee reflects both the characteristics of the profession and personal motives for work that affect the assessment of work. The center of gravity in determining the amount of earnings has been shifted to the level of the enterprise. Starting from the moment of hiring, the employer seeks to individualize work with the employee. An individual approach to wage increases is built taking into account the following basic provisions that form the system:

a) determination of the minimum annual wage for each category of employees, taking into account all payments;

b) unequal increase in wages within a predetermined increase in the total wage fund;

c) refusal to index wages as prices rise and switch to its increase depending on the personal merits of employees;

d) taking into account the merits of the employee, and not his length of service, when deciding on the issue of personal wage increases;

e) determination of methods for assessing the individual merits of an employee.

The material interest of workers in the best results of labor on present stage becoming an ever more powerful force for development social production, increasing its efficiency.

Material interest is provided, first of all, through distribution according to work, which makes the earnings of each worker, his material well-being dependent on the quantity and quality of his labor in social production.

With financial interest prerequisite is unrestricted wages, that is, the maximum level of wages should not be limited. Wage growth is restrained indirectly through the tax system.

Raising the standard of living is the most important task of social policy. In the Russian Federation, it is necessary to quickly restore incomes and stimulate the effective demand of the population as much as possible.

Today, it is necessary not just to increase wages, but to increase their purchasing power. Measures to increase the purchasing power of wages should combine periodic revision of nominal wages with its indexation in the intervals between separate revisions. This is due to the need to maintain the purchasing power of wages in the face of inflation.

A systematic increase in purchasing power can be ensured by a set of measures to increase the nominal accrued wages, make changes to the taxation of individuals, regulate prices for the most important consumer goods and services, develop the consumer market, etc.

The problems of labor productivity growth, its remuneration and the choice of the necessary ratio of their growth rates have been and are relevant and widely discussed for many years.

At the same time, the issue of labor productivity should be considered in conjunction with salary and standard of living. With low wages, one cannot speak of productivity growth, just as with low and declining productivity, one cannot talk about decent wages and its growth.

In the Russian economy, there is both an incredible increase in wages against the background of a decrease in labor productivity, and an increase in labor productivity with a fall in wages. In the current conditions of the functioning of the country's economy, the situation is also aggravated by the artificially maintained high formal employment, even against the background of falling wages.

The outstripping growth of labor productivity in comparison with the growth of wages does not give rise to inflation. In the case of an inverse relationship, inflation occurs, since too high wage growth breaks the link between labor costs and its payment, which also leads to a decrease in its productivity.

Speaking about the fact that an employee cannot be paid more than what he has earned, one must also remember that one cannot pay much less, which is also characteristic of the Russian economy.

It is necessary to maintain proportionality, thereby fully utilizing the stimulating role of wages. It should not be forgotten that low wages Negative influence not only for labor activity, but also forms an insufficient effective demand of the population.

We must not forget that an enterprise or organization has the right to independently determine the level of wages of employees, but not below the minimum level of wages established by the state.

Berezutsky Vladimir Nikolaevich(11/06/2012 at 16:01:08)

Good afternoon, Ilya. Article 37 of the Constitution of the Russian Federation proclaims the right to remuneration for work without any discrimination and not lower than the established minimum wage. This provision has found its further implementation in labor legislation. Thus, article 2 of the Labor Code of the Russian Federation establishes the principle, according to which each employee is guaranteed the right to timely and full payment of a fair wage that ensures a worthy existence for himself and his family, and not lower than the minimum wage established by federal law. labor. This principle is manifested in fixing the obligation of the employer to provide employees with equal pay for work of equal value (Article 22 of the Labor Code of the Russian Federation). Therefore, each employer is obliged to establish a wage system, since the establishment of salaries cannot be arbitrary (Determination of the Russian Federation of November 11, 1997 / / Bulletin of the Supreme Court of the Russian Federation. 1998. No. 3). The remuneration system adopted at the enterprise must take into account the requirements of laws, other regulations, agreements, local regulations and employment contracts (Articles 129, 135 of the Labor Code of the Russian Federation). Staffing is an internal, local normative act, which determines the official salaries in relation to each staff unit (position), indicating its category, class, category, qualifications. This is very clearly seen in the example unified form T-3 "Staffing", approved by the Decree of the State Statistics Committee of Russia No. 1 of 01/05/2004 ( given form is recommendatory; the enterprise can develop its own form of staffing). The number of staff positions is determined at the discretion of the employer, while the employer has the right to assign several staff positions with an identical name (for example, legal adviser - 3 units, senior legal adviser - 2 units, etc.). The requirements for holding a position, the scope of duties, powers and responsibilities of an employee are usually determined in the job description (in an employment contract, most often only the name of the position or a general indication of labor function employee without specification functional duties). The job description must correspond to the title of the position in the employment contract and the title of the position in the local documents of the enterprise (including in the staffing table). Consequently, remuneration at the enterprise is regulated by a number of local regulations, which are a coordinated and interconnected system that implies a uniform approach to determining the amount of wages for certain categories of workers. Therefore, several salaries (tariffs) cannot be established in the staffing table for one position, since there are no systemically fixed criteria for the preference of the employer for the remuneration of each of the employees in this position. However, in practice, indeed. a situation may arise when several staff units for the same position with different salaries are approved in the staffing table. This situation can be viewed in two ways. First, employees in the same position may receive unequal wages for equal work based on the subjective preferences of the employer. This can be regarded as discrimination against workers in wages. Numerous cases in this category indicate that the courts unequivocally rule in favor of employees, recovering the difference in salaries from the employer. Secondly, with different salaries for one position in the staff list, there may be several job descriptions with different scope of duties and level of qualification requirements. If we approach this situation formally and legally, then employees perform a different amount of work, and therefore it is impossible to establish the presence of discrimination in wages, since wages are remuneration for work depending on the qualifications of the employee, complexity, quantity, quality and conditions work performed ... (Article 129 of the Labor Code of the Russian Federation). However, from the point of view of personnel records management, such an approach to determining the remuneration system is unlawful, since, in accordance with Art. 57 of the Labor Code of the Russian Federation the name of the position (specialty, profession) with an indication of qualifications in accordance with staffing and the official salary of the employee are essential conditions labor contract. Similar personnel policy at the enterprise can serve as a reason with employees on wage issues, and can also cause numerous claims from the labor inspectorate. Based on the above. I think you should change the approach established in your organization, according to which it is allowed to set different salaries for specialists of the same position.

New edition Art. 132 of the Labor Code of the Russian Federation

The salary of each employee depends on his qualifications, the complexity of the work performed, the quantity and quality of the labor expended, and is not limited to the maximum amount, except for the cases provided for by this Code.

Any kind of discrimination is prohibited when establishing and changing the conditions of remuneration.

Commentary on Article 132 of the Labor Code of the Russian Federation

The application of articles 3 and 132 of the Labor Code of the Russian Federation in the aggregate gives grounds to assert: discrimination in wages depending on gender, race, skin color, nationality, language, origin, property, social and official position, age, place of residence, attitude to religion, political opinions, belonging or non-affiliation to public associations, as well as from other circumstances not related to the business qualities of the employee.

Positive in part 2 of article 132 of the Labor Code of the Russian Federation is the prohibition of discrimination not only when establishing, but also when changing the size and other conditions of remuneration. Equal pay for equal work must be ensured in every organization at all times. This principle is often violated in organizations where layoffs are planned: by raising wages for those who will continue to work in the future, the employer leaves the previous salary ( tariff rate) to persons warned of the upcoming dismissal, for those two months that must elapse from the date of the notice of dismissal until the day the employment contract is terminated. As a result, the dismissed employee receives smaller amounts not only in the form of wages, but also in the production of guarantee payments to him - severance pay, average earnings for two to three months after dismissal (Articles 178 and 180 of the Labor Code of the Russian Federation) and unemployment benefits . This is due to the fact that when calculating average earnings, its reduced (compared to workers of the same professions, positions) wages are taken into account. In such cases, the employee has the right to appeal against the actions of the employer in the manner prescribed by law.

Another commentary on Art. 132 of the Labor Code of the Russian Federation

1. Article 132 establishes one of the principles of wage regulation - payment depending on the quantity and quality of work without any discrimination. Its provisions are consistent with, establishing as a principle of legal regulation of labor relations ensuring the right of every employee to a fair pay; Art. 21 of the Labor Code, which establishes the right of an employee to wages in accordance with his qualifications, the complexity of work, the quantity and quality of work performed; Art. 22 of the Labor Code, which establishes the obligation of the employer to provide employees with equal pay for work of equal value.

2. To establish the dependence of the employee's salary on his qualifications, the complexity of the work performed, the quantity and quality of labor, tariff systems wages (see article 143 of the Labor Code of the Russian Federation and commentary to it).

3. Art. 132 of the Labor Code of the Russian Federation contains an important rule that the wages of employees are not limited to the maximum size. In conditions where the state does not use methods of direct regulation of wages and its size is entirely determined by the results of labor, it is impossible to establish a normative maximum wage.

4. Part 2 of Art. 132 prohibits any kind of discrimination in the establishment and change of wages and other conditions of remuneration, which complies with the requirements of the ILO Convention N 111 regarding discrimination in the field of labor and occupation (ratified by the USSR by Decree of the Presidium of the Supreme Soviet of the USSR of January 31, 1961 / / USSR Air Force, 1961, N 6, item 58). This means that it is prohibited to establish restrictions and benefits in the field of remuneration depending on any circumstances not related to the business and professional qualities of the employee - gender, race, skin color, nationality, language, origin, property, social and official status, age , place of residence, attitude to religion, political beliefs, membership or non-membership in public associations, etc. At the same time, the business and professional qualities of the employee (qualification, quantity and quality of work, professional features, availability of additional professional skills used in work, responsible attitude to official duties etc.) not only can, but should be used as the basis for the differentiation of wages.

5. Discrimination in the field of wages should be understood not only as the establishment of any restrictions, but also as the establishment of benefits not in connection with the business and professional qualities of the employee. Based on this, it must be recognized right decision the legislator to establish that underage workers employed on a reduced working time basis should be paid according to the length of their work (in the case of hourly wages) or the quantity of products produced (in the case of piecework wages), since otherwise these persons would be given advantages on the basis of age.

1. Labor is free. Everyone has the right to freely dispose of his abilities to work, to choose the type of activity and profession.

2. Forced labor is prohibited.

3. Everyone has the right to work in conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination and not lower than the minimum wage established by federal law, as well as the right to protection from unemployment.

4. The right to individual and collective labor disputes is recognized using the methods of their resolution established by federal law, including the right to strike.

5. Everyone has the right to rest. A person working under an employment contract is guaranteed the duration of working hours established by federal law, holidays and holidays paid annual leave.

Commentary on Article 37 of the Constitution of the Russian Federation

This article 37 proclaims those constitutional rights and freedoms, part of which every person in Russia has, regardless of his occupation, and part - only those individuals who work under an employment contract with a specific employer. The constitutional rights and freedoms listed in Art. 37 - these are not all the rights and freedoms that a person is endowed with in the sphere of work, but only the main ones. Most human rights and freedoms in this area are included in the category of so-called socio-economic human rights, which do not belong to him from birth, but are acquired by entering into legal relations regarding the use of his abilities to work, for example, by concluding an employment contract.

A specific list of socio-economic rights of a citizen is formed by each state independently, on an individual basis, based on the maximum limits of its available resources (part 1, article 2 of the International Covenant on Economic, Social and Cultural Rights). In this sense, the volume of socio-economic rights of citizens of economically prosperous states usually exceeds the volume of similar rights in underdeveloped or developing countries.

However, due to the requirements international law some socio-economic rights and human freedoms are put on a par with civil and political rights, which means the need to ensure their equal accessibility and effective legal protection in all countries of the world community, regardless of their economic and financial resources(Article 2 of the International Covenant on Civil and Political Rights). These types of rights include:

a) the right to work, to free choice of employment, to just and favorable conditions of work and to protection from unemployment;

b) the right to equal pay for equal work without any discrimination;

c) the right to a fair and satisfactory remuneration that ensures a worthy existence for a person for himself and his family and supplemented, if necessary, by other means of social security;

d) the right to create trade unions and join trade unions to protect their interests;

e) the right to rest and leisure, including the right to a reasonable limitation of the working day and to paid periodic leave (Articles 23 and 24 of the Universal Declaration of Human Rights of 1948).

All these rights, as well as human freedoms in the sphere of labor, are reflected in the commented Article 37 of the Constitution of Russia.

1. Among the first parts of 1 Art. 37 calls the freedom of labor, which should be considered as a universal constitutional and legal principle applicable to all types of law-abiding labor activity of a person. In this case, labor activity means any kind or type of occupation of a person, involving the use and use of his physical and (or) intellectual abilities, knowledge and skills, both on a reimbursable and non-reimbursable basis, both episodic and periodic or in a systematic manner, both on the basis of an employment contract, and on the basis of any other organizational and legal form permitted by law of attracting people to work. Regardless of the type of use of their abilities to work, everyone has the right to dispose of them freely, and mainly in order to satisfy their personal interests and needs in any place of residence they choose (see).

The freedom of labor proclaimed by the Constitution refers to those socio-economic phenomena that must be present in the economy market type for its normal functioning and progressive development. Therefore, freedom of work must be considered as a fundamental principle market economy, which is the only possible proper economic foundation for the effective functioning of a democratic constitutional state, which the Russian Federation should be by virtue of. Due to the fundamental role of this principle in modern Russia it is appropriate to recall that in the conditions of a non-market state-planned economy, on which Soviet Union, another principle is required as the main one - the universality of labor, which implies the imposition of a constitutional duty on every able-bodied person to work and the application of legal liability measures to all persons who do not fulfill this duty. The implementation of this principle in practice is always associated with the use of forced labor.

Another important principle, on which the market economy is also based, is the freedom to use one's abilities and property for entrepreneurial and other purposes not prohibited by law. economic activity(cm. ). As a rule, in the course of carrying out this activity wage labor is used, the proper basis of which, in a democratic and rule-of-law state, is a freely and voluntarily concluded contract. It follows that the legal expression of the constitutional principles of freedom of labor and freedom of economic activity is the principle of freedom of contract, which, having a constitutionally universal character, is of decisive importance for the scope and use of any type of labor activity, including those carried out on the basis of an employment contract. In the latter case, this principle is transformed into the principle of freedom of labor contract.

However, it should be noted that the wording of this principle is not reproduced by Art. 2 of the Labor Code is among the basic principles of legal regulation of labor relations and other directly related relations. This circumstance, of course, does not mean that the principle of freedom of an employment contract does not apply in the sphere of relations regulated by the norms of the branch of labor law. It undoubtedly operates in this area, but with certain restrictions, the presence of which, in particular, is clearly evidenced by the content of the norms of Russian labor legislation governing the conclusion, amendment and termination of an employment contract at the initiative of the employer.

The essence of these restrictions is the narrowing of the possibilities of the employer, as one of the parties to the employment contract, to build their relationship with the employee, as the other party to this contract, solely on the basis of equality, freedom and coordination of will (see Resolution of the Constitutional Court of the Russian Federation of 06.06.2000 N 9-P *(467)). In reality, the Russian employer does not have free will either when concluding or when changing, and even more so when terminating an employment contract. This is confirmed by the fact that the right of the employer to terminate the employment contract with his employee is to a greater extent associated by the norms of labor legislation not with the will of the employer, but with the actual presence of certain circumstances combined into an exhaustive list, qualified by these norms as specific grounds for terminating the employment contract at the initiative of the employer ( article 81 of the Labor Code).

Thus, it can be stated that in the conditions of today's Russian legal reality, the operation of the principle of freedom of an employment contract, the content of which should be the freedom of expression of the will of its parties to conclude, amend or terminate this contract, is significantly limited, at least for the employer. This circumstance raises the question of the constitutionality of such restrictions. Since by virtue of any restrictions on rights and freedoms should be carried out only to the extent necessary to protect the foundations of the constitutional order, the rights and legitimate interests of other persons (see the commentary to Article 55), insofar as the restriction of the economic freedom of the employer is not caused by the indicated purposes, in principle, should not take place. However, if it nevertheless exists in contradiction with this requirement, then this may indicate the groundlessness or disproportionate restriction of his rights and freedoms, which, in turn, creates the basis for recognizing the regulatory provisions of the relevant legal norms as unconstitutional. The Constitutional Court of the Russian Federation has repeatedly adopted such decisions (see: Resolutions of 01/24/2002 N 3-P, 03/15/2005 N 3-P; Determination of 01/16/2007 N 160-O * (468)).

It should be noted that these decisions have introduced into the legal regulation of labor and directly related relations a new trend towards expanding the freedom of the labor contract, which, by the way, is really necessary in market conditions management to give this regulation the necessary flexibility. It is highly desirable that the same trend be identified in the activities of the domestic legislator, who would also be useful to realize that in economically prosperous countries the flexibility of contractual regulation of labor relations sanctioned by law is recognized as one of the most important conditions that directly determine the efficiency and competitiveness of the national economy.

2. Inherent in everyone, by virtue of part 1 of the commented article 37 of the CRF, freedom of labor implies not only the possibility for a person to choose the type of labor activity, the organizational and legal form of using his abilities for work and the place of application of this labor, but also the possibility of refusing to perform any or labor in general. However, such a variant of behavior of a particular person should not entail any negative consequences for him in modern Russian conditions, since in accordance with Part 2 of Art. 37 forced labor is prohibited in our country. In this sense, this prohibition should also be considered as a constitutional guarantee of freedom of labor.

It should be noted that the prohibition of forced labor is one of the fundamental principles of not only Russian but also international law. In particular, it is recorded in the International Covenant on Civil and Political Rights (paragraph 3, article 8), the Convention for the Protection of Human Rights and Fundamental Freedoms (paragraph 2, article 4) and the Declaration on Fundamental Principles and Rights in the Sphere of Labor and the Mechanism its implementation, which was adopted International Conference Labor (MKT) in 1998. As the main principle of the legal regulation of labor relations and other related relations, this prohibition is also reproduced in the sectoral Russian legislation, now presented by the Law of the Russian Federation of 19.04.1991 N 1032-1 "On employment in the Russian Federation "(As amended on 10/18/2007) and TK. At the same time, the Labor Code not only classifies this principle as one of the basic principles of legal regulation of labor and directly related relations (Article 2), but also devotes a separate article to its legal regulation. 4 "Prohibition of forced labor". Such isolation of the legislative regulation of this principle in a separate article should be regarded as an indicator of its special significance, which the Russian legislator considered it necessary to emphasize again in this way.

It should also be noted that the most detailed legal regulation of the prohibition of forced labor is contained not in the Labor Code, but in acts of international labor law, which include two conventions International Organization Labor (ILO): Convention 1930 N 29 "On forced or compulsory labor" and Convention 1957 N 105 "On the abolition of forced labor". Both conventions have been ratified by Russia.

Within the framework of the Russian legal system, the most detailed definition of forced labor is given in Part 2 of Art. 4 TK. It is almost entirely based on the wording given in paragraph 1 of Art. 2 of ILO Convention No. 29, which states that the term "forced or compulsory labor" means all work or service exacted from any person under the menace of any penalty, for which that person has not offered himself voluntarily. At the same time, it should be noted that there are certain differences in the characteristics of forced labor under international and Russian labor law. So, unlike the definition given by the Labor Code, Convention No. 29, both in its title and in its content, speaks not only of forced, but also of compulsory labor. However, this Convention does not give any independent meaning to the term "compulsory labor" in comparison with the term "forced labor", which is why these terms should be considered as synonyms. By the way, based on this, we can conclude that the use of only one term "forced labor" by Russian legislation is legal.

At the same time, it makes sense to pay attention to the fact that the characteristics of forced, or compulsory, labor, presented by Convention No. 29, contain two features, which include: a) the threat of punishment for failure to perform the required work or service and b) the absence of a voluntary offer by an employee of his services to perform that work or service. In turn, the Labor Code is limited in characterizing forced labor by indicating only one sign, which is the threat of applying any punishment (violent influence) for failure to perform the required work. However, this circumstance, probably, should not be considered as a violation by the domestic legislator of the provisions of Convention No. 29, it is simply necessary to proceed from the fact that in this case he took a more stringent approach to qualifying specific labor as forced labor. If, according to the norms of international labor law, this requires the simultaneous presence of two signs, then according to Russian legislation, one is enough in the form of a threat of applying any punishment (violent influence).

Anyone who is involved in forced labor has the right to refuse to perform it, including in connection with a violation deadlines payment of wages or its payment not in full, as well as in connection with the emergence of a direct threat to the life and health of the employee due to violation of labor protection requirements and, in particular, through his failure to provide means of collective or personal protection in accordance with the established norms (part 3 of article 4 of the Labor Code).

Certain types of work required of a worker have features similar to signs of forced labor, and yet they are not recognized as varieties of such. The list of such works is contained in Part 4 of Art. 4 TK. In general, it is consistent with a similar list contained in Art. 2 of the ILO Convention N 29. However, it should be borne in mind that the list given in the Convention is somewhat wider than that given in Art. 4 of the Labor Code, since, in comparison with it, it additionally includes: a) any work or service that is part of the normal civic obligations of citizens of a fully self-governing country; b) small works of a communal nature, i.e. work performed for the direct benefit of the collective by the members of that collective, and which may therefore be considered the ordinary civic duties of the members of the collective, provided that the population itself or its immediate representatives have the right to express their opinion on the appropriateness of these works.

Despite the fact that our legislator has refused to reproduce the wording of these exceptions from the types of forced labor in the Labor Code, they have legal force in relation to our country, which follows from the fact of ratification of this Convention. This makes it possible not to consider any kind of "subbotniks" and "Sundays" traditional for our country as forced labor, of course, provided that citizens voluntarily participate in their implementation. This also leads to the conclusion that forced labor should not be recognized as those works that are performed for the direct benefit of the team by members of this team for the improvement and sanitary and hygienic prevention of buildings and territories occupied, for example, by schools, boarding schools, children's and youth recreation centers. camps, as well as institutions in charge of the execution of administrative and criminal penalties, provided that representatives of these groups are given the right to express their opinion on the advisability of such work (see Definition of the Constitutional Court of the Russian Federation of March 24, 2005 N 152-O).

3. For the overwhelming majority of representatives of modern civilization, labor is the main source of subsistence. Because of this, every person capable of working should have the right to work, and such a right is indeed granted to him by Art. 23 of the Universal Declaration of Human Rights, and for the citizens of our country also part 3 of Art. 37 of the Constitution. The possession of the constitutional right to work provides everyone with the opportunity to earn a living by work that he freely chooses or to which he freely agrees (Article 6 of the Covenant on Economic, Social and Cultural Rights). In turn, the realization of this right allows everyone to satisfy the ever-existing need to create material prerequisites for their normal existence and comprehensive development through the means they earn.

The legal content of the right to work forms a number of powers, the implementation of which provides a person with the opportunity to choose the type of labor activity, profession or specialty, determine the place of application of his labor both within and outside the Russian Federation and choose a counterparty under an employment contract (physical or entity, state or municipal authority etc.).

In a market economy, the right to work is not subjective in the sense that it is not supplemented by someone's obligation to provide each individual with the job he desires. This conclusion is also confirmed by the Constitutional Court, which, in one of the legal positions formulated by it, noted that the right to freely dispose of one’s abilities for work, to choose the type of activity and profession does not imply the obligation of the state to ensure that a citizen holds a specific position (see Ruling of 21.12.2000 N 252 -0*(469)).

At the same time, the right of a citizen to work is under the special protection of the state, which manifests itself, on the one hand, in providing each working person with working conditions that meet the requirements of safety and hygiene, payment of remuneration for work without any discrimination and not lower than that established by federal law. the minimum wage, labor protection and employment promotion, and on the other hand, in providing various support measures to people who have lost their jobs and earnings. It follows that the Constitution grants to everyone not only the right to earn his living by work which he freely chooses or to which he freely agrees, but also the opportunity to exercise this right in conditions that meet the requirements of safety and hygiene.

The most detailed description of the content of modern legal norms governing relations on labor protection of workers can be obtained on the basis of an analysis of the content of the articles of the Labor Code, placed in section. X "Labor protection". In accordance with Art. 209 labor protection is defined as a system for preserving the life and health of workers in the course of labor activity, including legal, socio-economic, organizational and technical, sanitary and hygienic, medical and preventive, rehabilitation and other measures. The need to carry out all these activities is assigned, mainly as specific duties, to each employer (Article 212 of the Labor Code). The Labor Code also provides every employee with the opportunity to protect their right to work in conditions that meet state labor protection regulations. To this end, all employees are vested with a number of rights in the field of labor protection (Article 219). Establishing state regulatory requirements for labor protection of employees, Russian state at the same time, it contributes to ensuring labor safety for their life and health.

The natural right of everyone who uses his labor force on a contractual basis in the interests of another person, is the right to remuneration for work. In a market economy, the specific amount of this remuneration is determined primarily by the agreement of the parties to the employment contract themselves. However, it is well known that their economic interests, as a rule, do not coincide, since the employer is interested in reducing his expenses for the employee's wages, and the employee is interested in increasing the amount of remuneration for his work. Practice shows that the resolution of this conflict of interest is carried out, as a rule, from a position of strength of the employer, who has an economic advantage that he uses to minimize the remuneration of workers, often forced to accept low-paid work due to the reality of the prospect of being left without any paid work at all. work. Given this circumstance, h. 3 Article. 37 specifies the right of everyone to remuneration for work by prohibiting any discrimination in the remuneration of employees and the obligation of the employer to pay for this work at a level not lower than the minimum wage established by law. Such a ban is intended to promote the establishment of the principles of justice in wage relations.

Work of different value, of course, should be paid differently. Because of this, the current legislation allows differentiation in payment various kinds labor. This differentiation is also permissible in the remuneration of one type of labor, but solely depending on the qualifications of employees, as well as the complexity, quantity, quality and conditions of the work they perform (part 1 of article 129 of the Labor Code). In addition, the establishment of differences, exceptions, preferences, as well as the restriction of the rights of workers, which are determined by the requirements inherent in this type of labor established by federal law, or are due to the special concern of the state for persons in need of increased social and legal protection, are not recognized as discrimination (Part 3 article 3 of the Labor Code).

At the same time, wage discrimination should be recognized as its differentiation, carried out on any of the grounds indicated, along with, in Part 2 of Art. 3 TK. All the grounds for discrimination listed in this article of the Labor Code have one common feature - the absence of a particular circumstance, which has become the basis for differentiation of remuneration, of connection with the business qualities of the employee or with the objective characteristics of his work. Because of this, the urgency or perpetuity of the employment contract concluded with them (see the Definition of the Constitutional Court of the Russian Federation of 06.03.2001 N 52-O), the loyalty of employees in relation to the bodies or representatives of the employer, participation or non-participation in labor disputes, strikes and other similar circumstances, qualities or properties of a person that discriminate him in the field of remuneration for work.

With regard to the work of persons working under an employment contract, the constitutional right to remuneration for labor is supplemented by the Labor Code with the principle of paying everyone a timely and full amount of fair wages that ensure a decent human existence for himself and his family and not lower than the minimum wage established by federal law (paragraph 7, article 2). Practical implementation This principle can mean only one thing - in the Russian Federation, as a social state, it is necessary to provide every conscientiously and efficiently working person with the opportunity to receive such remuneration for work that would not only be less than the living wage prevailing in the country, but also exceed it as much as necessary to ensure a decent existence for both the working person himself and his family. By the way, this is precisely the content that the international community puts into the right to work, which belongs to everyone by virtue of the Universal Declaration of Human Rights (paragraph 3, article 23) and the International Covenant on Economic, Social and Cultural Rights (article 7). However, despite the fact that these international legal acts are integral part of the legal system of Russia (see the commentary to Article 15), modern Russian legislation today establishes such a minimum wage, which so far does not even reach the subsistence level.

As one of the most important constitutional rights, Part 3 of Art. 37 of the Constitution calls the right of everyone to be protected from unemployment. Unemployment deprives a person of the opportunity to realize his right to work and thereby ensure a decent existence for himself and his family. For this reason, each state should strive to ensure the most complete and productive employment of the population, which, in particular, is aimed at by the ILO Convention of 1964 N 122 "On Employment Policy" and the ILO Convention of 1988 N 168 "On the Promotion of Employment and protection from unemployment" * (470), which consider the promotion of full, productive and freely chosen employment a priority and an integral part of the economic and social policy of the state. Unfortunately, none of these conventions has been ratified by our state. Therefore, in terms of determining its current intentions in the field of unemployment protection, one should refer to the Law of the Russian Federation "On Employment in the Russian Federation", which determines public policy in this region. As follows from the content of Art. 5 of this Law, the Russian state is not yet aimed at ensuring the most complete and productive employment in relation to every citizen of Russia, therefore it is limited in the relevant area public relations pursuing a policy of promoting the realization of the rights of citizens to full, productive and freely chosen employment. This policy, in particular, is aimed at: ensuring equal opportunities for all citizens of the Russian Federation in exercising the right to voluntary work and free choice of employment; creation of conditions that ensure a decent life and free development of a person; support for the labor and entrepreneurial initiative of citizens, carried out within the framework of the law, to promote the development of their abilities for productive, creative work; implementation of measures that promote the employment of citizens experiencing difficulties in finding work (disabled people, minors, etc.).

In accordance with this policy, the state guarantees every citizen of the Russian Federation protection from unemployment through the provision of various measures of social support, which include: payment of unemployment benefits, including during the period of temporary disability of the unemployed; scholarship payment during vocational training, advanced training, retraining in the direction of the employment service, including during the period of temporary disability; the opportunity to participate in paid public works (Articles 12 and 28 of the Law of the Russian Federation "On Employment in the Russian Federation").

4. Part 4 of the commented Art. 37 of the Constitution of the Russian Federation recognizes for everyone the right to individual and collective labor disputes using the methods of their resolution established by federal law, including the right to strike. The right to initiate an individual or collective labor dispute belongs only to those who work on the basis of an employment contract. For this reason, a detailed description of the implementation of this right is contained in the Labor Code, which devoted to the relevant issues ch. 60 "Consideration and resolution of labor disputes" and Ch. 61 "Consideration and resolution of collective labor disputes".

The right to appeal to individual dispute resolution bodies belongs to a personally identified employee who believes that his labor rights violated by the employer. Individual labor disputes are considered by labor dispute commissions, magistrates and courts (Article 382 of the Labor Code of the Russian Federation). The commission on labor disputes is not a mandatory instance for the consideration of individual labor disputes, therefore, the employee has the right to apply directly to the justice of the peace or to the court, bypassing this commission.

Unlike individual labor disputes resolved in a jurisdictional manner, collective labor disputes are considered and settled by the disputing parties themselves as part of conciliation procedures carried out with the participation of a conciliation commission, mediator and (or) labor arbitration (parts 1 and 2 of article 398 of the Labor Code) . The right to put forward claims that serve as the basis for initiating a collective labor dispute is vested only in employees represented by trade unions, their representative bodies or other representatives of employees working for a particular employer and elected at a general meeting or conference of employees (part 1 of article 399, article 31 TC).

A strike is a temporary voluntary refusal of workers to fulfill their obligations. job duties, is one of the methods for resolving collective labor disputes, which, as a last resort, is applicable only at the initiative of employees in cases where conciliation procedures have not led to the resolution of a collective labor dispute or when the employer or representatives of the employer evade participation in conciliation procedures, do not comply with the agreement achieved in the course of resolving a labor dispute or do not comply with a binding decision of a labor arbitration (part 2 of article 409 of the Labor Code).

The decision to go on strike is made general meeting(conference) of employees of the organization (branch, representative office or other separate structural unit), individual entrepreneur at the suggestion of the representative body of employees, previously authorized by them to resolve a collective labor dispute (part 1 of article 410 of the Labor Code).

In accordance with Art. 455 of the Labor Code are illegal and strikes are not allowed:

a) during periods of martial law or a state of emergency, or special measures in accordance with the legislation on the state of emergency; in bodies and organizations of the Armed Forces of the Russian Federation, other military, paramilitary and other formations, organizations (branches, representative offices or other separate structural divisions), directly in charge of ensuring the country's defense, state security, rescue, search and rescue, firefighting, prevention or elimination of natural disasters and emergencies; in law enforcement agencies; organizations (branches, representative offices or other separate structural subdivisions) directly serving especially dangerous types of production or equipment, at ambulance and emergency stations;

b) in organizations (branches, representative offices or other separate structural subdivisions) directly related to ensuring the life of the population (energy supply, heating and heat supply, water supply, gas supply, aviation, rail and water transport, communications, hospitals), in the event that the strikes pose a threat to the defense of the country or the security of the state, life and health of people.

Insofar as labor law referred to the subjects of joint jurisdiction of the Russian Federation and its subjects, insofar as the subjects of the Federation have the right to adopt laws and other regulatory legal acts that may introduce longer periods of rest compared to those provided for by federal legislation. Specific employers, who have the right to adopt relevant local regulations in this regard, have a similar right to increase the duration of the rest of their employees.