Self-defense of labor rights by workers is the right of all workers in Russia, is carried out legal methods and is characterized by several characteristic features. We propose to understand what it is, what are the special characteristics of self-defense by employees of their rights, in what cases self-defense is legitimate, what are the forms of self-defense, and who does not have the right to self-defense.

What is self-defense by workers of labor rights

For the first time the term "self-protection of labor rights" appeared in the Labor Code, but exact definition does not exist. In some publications on the rights of workers, self-defense is understood as the active actions of workers within the framework of the law, aimed at protecting health and labor rights, without the involvement of trade union organizations, courts, state structures. Possible methods of protecting labor rights are:

• defending rights in court;
• protection of labor rights at the state level;
• protection of the rights of workers by trade union organizations;
• self-protection by employees of labor rights.

For which workers are not provided for self-protection of labor rights

If the refusal to work will lead to a threat to the safety, health, life, normal functioning of the population, self-defense of labor rights is unacceptable. For the following categories of workers, only protection of rights is available by applying to the courts, trade unions, Rostrud, the prosecutor's office:

• fire service personnel;
• employees of law enforcement agencies responsible for the security of the country;
• specialists involved in ensuring the stable operation of hazardous industries;
• employees of the Ministry of Emergency Situations;
• medical workers providing emergency care;
• emergency responders;
• employees of communication services, utilities;
• employees government agencies;
• employees of specialties and positions whose work is related to security.

In what cases is self-defense of labor rights by employees legitimate?

Important! Self-defense of labor rights is recognized as lawful only if the employee performs actions in accordance with the law and does not involve the courts, the trade union and other bodies and structures in the proceedings.

The Labor Code does not contain a complete list of situations in which it is permissible to exercise the right to self-defense of labor rights. Most often, self-defense is used in the following cases:

• the employer requires the provision of information or documents to him without legal grounds;
• the employee was given instructions that are not provided for by the employment contract;
• the employer asks the subordinate to return to work from vacation earlier than the due time;
• due to the fulfillment of the instructions of the employer, there is a threat to the life and health of the employee;
• subordinate is illegally involved in overtime work, to work at night, on weekends and holidays;
• manager does not provide funds personal protection when an employee performs work requiring additional security measures;
• the employer sent the employee on a business trip without prior written consent (in cases where the employee's signature is required);
• there was a delay in payment of wages, amounting to more than 15 days;
• presentation of unlawful demands on the part of the employer (not provided for by the employment contract);
• unlawful transfer of an employee to another position.

Self-protection by workers of labor rights - main characteristics

Self-defense of workers' rights is characterized by the following distinctive features:

1. Self-defense is a method used only by employees and not used by employers.
2. The employee enjoys the right to self-defense independently, without the involvement of competent structures, courts, state bodies.
3. An employee who decides to exercise the right to self-defense does not have the right to force the employer or other persons to eliminate offenses - other tools should be used here.
4. Self-defense is characterized by the passivity of the worker - the employee simply refuses to perform official duties and instructions from management. However, as soon as the offense is eliminated, the employee is obliged to start work.

Self-defense of labor rights by workers - main forms

The only acceptable and legitimate form of self-defense is inaction in the workplace, but its forms may vary. The most common cases are:

• refusal to perform work without personal protective equipment, overalls, special footwear, preventive measures;
• refusal to receive work book due to the entry into it of an unlawful entry on the reasons for dismissal;
• refusal to work overtime, from business trips;
• refusal to attend workplace 14 days after the application for dismissal on their own initiative;
• refusal to fulfill the instructions of the management that are not provided for by the employment contract or threaten the health / life of the employee.

Important! In self-defense, you can refuse to perform only those types of work that the employer requires to be performed without having the right to do so. If, on the other hand, the employer forces the worker to perform the work, a labor dispute commission will have to be involved, and the protection of labor rights will no longer take place in the form of self-defense.

Legislative acts on the topic "Self-defense of labor rights by employees"

Typical mistakes:

Mistake: The employee, within the framework of self-defense of labor rights, applies to the trade union organization and to the court.

The very definition of self-defense in the Labor Code of the Russian Federation does not exist. However, scientists have more than once made an attempt to define such a concept as "self-defense". So, for example, some authors believe that self-defense of labor rights is actions (inaction) performed by a party to an employment contract in order to eliminate a violation committed by the other party to this contract, using forms (methods) that do not contradict the law 36 . We believe that this definition does not accurately define the nature of self-defense of labor rights, because only the employee has the right to self-defense, therefore, it is more correct to define the subject of self-defense of labor rights not as a party to the employment contract, but as the employee directly.

According to M. Presnyakov, self-protection of labor rights is an opportunity for an employee, provided for by labor legislation, to protect individual labor rights and legitimate interests independently, by his lawful actions, within the limits established by law 37 .

In legal literature, the concept of "self-defense" is used in a broad and narrow sense. In a broad sense, self-defense is any action of a person with a subjective right related to the protection of this right from violation by all means provided for by the current legislation. In a narrow, civil law sense, these are the actions of a person aimed at preventing a violation and eliminating its consequences.

In our opinion, self-defense of labor rights of employees is, first of all, a way to protect labor rights, which is the actions of an employee aimed at preventing violations of his labor rights.

The following features are characteristic of the self-defense of labor rights of workers38:

The employee independently ensures the implementation of the subjective right to protect the right without applying to the competent authorities or the court.

The second sign of self-defense is the features of its implementation. Self-defense involves only the passive behavior of the employee, associated with the refusal to comply with the requirements of the employer, which violate his rights, freedoms and legitimate interests. Refusal of any requirement is the suppression of violation of labor law. This makes it possible to distinguish self-defense from other forms of influence on the behavior of the employer, for example, holding a strike, the essence of which is to stop work until the goal is achieved. Refusal to comply with the requirements of the employer is not limited in time and directly ensures the protection of the subjective right of the employee through inaction.

Self-defense is not associated with any coercion of the subject who has violated the right to commit certain actions. This is because the purpose of self-defence is to stop actions that violate labor rights. In order to force the violator of labor rights to certain actions, it is necessary to use other methods of protecting labor rights.

Self-defense can be used as a way to protect subjective rights, freedoms and legitimate interests only by the employee himself. Employers cannot use this method to protect their rights, freedoms and legitimate interests.

Self-defense is manifested in the refusal of the employee to perform the work entrusted to him in order to restore the violated labor right (rights) without applying or along with applying to the bodies for consideration of individual labor disputes or to bodies responsible for supervision and control over compliance with labor law.

It should be noted that contrary to the title of Art. 379 of the Labor Code of the Russian Federation, formulated as "Forms of self-defense", it provides for only one form - refusal to perform labor duties 39 . At the same time, this article states that self-defense is possible in the event of a gross violation of the labor rights of an employee, directly provided for by law:

1) assignment to the employee of work not provided for by the employment contract;

2) the occurrence of an immediate threat to the life and health of an employee (Article 379 of the Labor Code of the Russian Federation).

Obviously, we can talk about the use of the right to self-defense in the event that the employee is not provided with personal and collective protective equipment (Article 220 of the Labor Code of the Russian Federation), as well as in the event of a delay in the payment of wages for more than 15 days (Article 142 of the Labor Code of the Russian Federation), although some experts consider the latter case as an independent legal phenomenon 40 . In our opinion, refusal to comply job duties when it is caused by a gross violation of the labor rights of an employee and is aimed at restoring these rights, should be recognized as self-defense.

Self-defense methods used by employees should have the following features:

1) such methods must not be contrary to law;

2) they can be implemented by the subjects of labor law themselves or transferred to third parties, but without applying to the competent authorities;

3) the law does not contain direct prohibitions on the use of self-defence, that is, it does not establish the obligation to use, for example, a judicial form of protection 41 .

In connection with the realization of the worker's right to self-defense in practice, two serious questions arise:

1) on payment for the period of suspension of performance of labor duties;

2) the need for the presence of the employee at the workplace.

The first issue is related to the procedure and amount of payment for the period when the employee did not work due to the need to protect their labor rights, it is defined in relation only to specific types of self-defense. For example, for cases of protecting the right to work that meets the requirements of labor protection (Articles 219, 220 of the Labor Code of the Russian Federation), payment for downtime is established through no fault of the employee. Apparently, it would be more correct in this case to pay for the suspension of the performance of labor duties as simple due to the fault of the employer in accordance with Part 1 of Art. 157 of the Labor Code of the Russian Federation, since the employer did not fulfill the obligations assigned to him by labor legislation.

At the same time, in relation to cases of illegal transfer to another job, this approach is hardly applicable, since the employee is actually deprived of the opportunity to work. According to established practice, when an illegally transferred employee is reinstated in his previous job, he is paid for the time of forced absenteeism (Articles 72, 394 of the Labor Code of the Russian Federation).

In relation to some cases of self-defense, for example, when work is suspended due to a delay wages, no guarantee payments are provided, which significantly reduces the importance and practical application by employees of this method of protecting labor rights.

The second question that arises in practice is related to the determination of the regime for the employee's stay at the workplace in the event of exercising the right to self-defense. On this issue, it is imperative to look at the acts of the highest judicial authorities and state the position of the highest judicial instances! The law does not provide for any rules and requirements in this regard (the only exception is Article 142 of the Labor Code of the Russian Federation). In this regard, it seems appropriate to resolve this issue in accordance with the rules internal regulations or by agreement between the employee and the employer.

Self-protection of labor rights is exercised by employees freely 42 . The head, other officials of the organization do not have legal grounds to force the employee to perform work, to threaten him, to provide any psychological pressure. It is also not allowed to bring employees exercising the right to self-defense to disciplinary liability.

Illegal actions of persons representing the interests of the employer can be appealed in court or the federal labor inspectorate.

Based on the foregoing, each employee has the right to protect their rights and freedoms, as well as interests that are protected and guaranteed by the state. Therefore, if the current labor legislation does not provide for a certain type labor activity, which can put a person in a position dangerous to life and health, or a person is presented with work that poses a danger to life and health, not provided for by his job duties, if these duties are not directly provided for by federal legislation and the Labor Code of the Russian Federation, the employee has the right to self-defense , i.e. failure to do the job. Do not forget that all guarantees and rights are reserved by the employee in full only if he warned the employer or his representatives in writing.

Thus, self-defense labor law regarded as special measure protection, and the labor legislation has a provision guaranteeing the right to self-defense, which is reflected in the establishment of the obligation of the employer not to prevent employees from exercising self-defense.

Speaking about the demand for self-defense of labor rights in practice, it should be noted that employees resort to this method in the presence of significant violations of their labor rights. At the same time, in isolated cases, employees use this method of protecting labor rights. First of all, this is due to the unwillingness of employees to aggravate relations with the employer, especially in the environment inherent in many organizations, in which employees not only do not express their complaints to the employer, but are also forced to hide their dissatisfaction from him in order not to lose their jobs. Another reason is that workers believe that measures to protect their labor rights must be taken by state bodies, which should suppress violations, regardless of the reaction of workers to them 43 . But state bodies do not always have information about violations committed by the employer, and the necessary measures are not always taken to prevent violations of labor rights.

So, self-defense of labor rights of employees is a way to protect labor rights, which is the actions of an employee aimed at preventing violations of his labor rights in the forms established by labor legislation. Undoubtedly, the introduction of the institution of self-defense into the Labor Code of the Russian Federation should be approved, but at the same time, attention should be paid to a certain imperfection in the legislative consolidation of self-defense in the Labor Code of the Russian Federation. Firstly, it is necessary to establish clear guarantees of the rights of workers in connection with the realization of the right to self-defense, so that the mechanism of self-defense in the labor sphere serves the interests of workers, and secondly, to expand the list of forms of self-defense of labor rights of workers. These measures will help to significantly increase the demand for the use of self-defense of labor rights of workers in practice.

Self-defense of labor rights must be distinguished from a strike. Self-defense is a refusal to perform work in order to protect the individual labor rights of an employee (the right to the certainty of a labor function, fixed by an employment contract, the right to timely and full receipt of wages, the right to protect life and health in the course of labor activity).

A strike, on the other hand, is a refusal to perform labor duties (in whole or in part) in order to resolve a collective labor dispute, i.e. aimed at upholding collective interests or collective rights.

The right to self-defense is exercised by the employee independently, independently of other employees. The decision to go on strike can only be taken by the collective -- general meeting(conference) of employees of the organization.

In addition to exercising the right to self-defense, an employee may apply to the federal labor inspectorate or individual labor dispute resolution bodies. The strike is carried out in the course of resolving a collective labor dispute; in this case, it is impossible to resort to judicial protection and exercise supervision. Conciliation procedures must be carried out during the strike.

Finally, self-defense of labor rights and a strike differ in their legal consequences. Refusal to perform work in self-defense may last until the violation of labor rights is eliminated. The result of such a refusal can only be the restoration of the violated right of the employee. The duration of the strike is determined by the effectiveness of the conciliation procedures carried out during this period. The strike may be completed by the conclusion of an agreement on the establishment of new rights of workers, on the implementation or partial implementation of the rights provided for by the collective agreement, agreement. It is also possible to terminate the strike by decision of the body that leads it, without reaching an agreement on resolving a collective labor dispute.

As a result of the analysis of legislation and judicial practice three main conclusions can be drawn:

1) the right to strike is guaranteed by Russian law only to resolve a collective labor dispute, which is fully consistent with international provisions about the strike;

2) in case of non-payment (delay in payment) of wages, an individual labor dispute arises (the amount of individual labor disputes of employees of this organization);

3) termination (suspension) of work due to non-payment of wages in accordance with Russian law cannot be recognized as a strike.

Grounds for the use of self-defense

The Labor Code (Articles 379, 142) names only three grounds for self-defense by an employee, leaving, however, this list open:

1) in the case of entrusting him with work not provided for by the employment contract;

2) when the work directly threatens the life and health of the employee;

3) in case of delay in payment of wages for more than 15 days.

Let's consider the above grounds in more detail.

§ 1. Illegal transfer to another job

Self-protection of labor rights can be used in cases of: illegal transfer to another job (assignment of work not covered by the employment contract).

The employee has the right to refuse to perform labor duties only in the event of an illegal transfer, for example, carried out without the written consent of the employee, transfer to work that is contraindicated for health reasons, transfer to hard work, work with harmful or hazardous conditions labor.

If the transfer is carried out in accordance with the law, for example, the employer uses his right to temporary transfer in case of production need. The production need implies exceptional, unforeseen circumstances that arise for a particular employer, such a transfer is allowed to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, accident or natural disaster; to prevent accidents, downtime, temporary suspension of work for reasons of economic, technological, technical or organizational nature, destruction or damage to property, as well as to replace an absent employee) while working conditions (impact harmful factors production or factors that determine the danger or severity of labor) do not change, the employee is not entitled to refuse to perform work. The employee is obliged to comply with the requirements of the employer for a temporary transfer to another job in this case. If the employee is transferred to another job in order, established by law, then his refusal to perform this work is considered a violation labor discipline, and absence from work is like absenteeism.

In some cases, the employer is obliged to temporarily transfer the employee to another job. So, for example, if an employee refuses to perform work in the event of a danger to his life and health, with the exception of cases provided for federal laws, the employer is obliged to provide the employee with another job for the time the danger is eliminated (Article 220 of the Code).

In cases stipulated by federal law, an employee is not entitled to refuse to perform work, despite the existence of a threat to his life and health.

For all persons transferred to another job in the same organization, the employer (or a person authorized by him) is obliged to instruct on labor protection, organize training in safe methods and techniques for performing work and providing first aid to victims.

§ 2. Delay in payment of wages

In accordance with Art. 2 Labor Code Russian Federation one of the basic principles legal regulation labor relations is to ensure the right of every employee to timely and full size payment of a fair wage that ensures a worthy existence for a person and his family, and not lower than that established by federal law minimum size wages. Ensuring this principle is carried out by regulating the rights of the employee to wages, as well as by establishing measures of legal liability of the employer for violation of these rights.

In part 3 of Art. 4 of the Labor Code of the Russian Federation, violation of the terms of payment of wages or payment of it not in full is classified as forced labor. In turn, involvement in forced labor is prohibited by the norms of international legal regulation. In part 2 of Art. 2 ILO Convention No. 29 on forced or compulsory labor given exhaustive list forced labor that cannot be considered forced labor. These include:

Any work or service performed under compulsory military service laws and applied to work of a purely military nature;

Any work carried out by order of a court, provided that it is carried out under the supervision of public authorities and the person performing such work will not be placed at the disposal of private persons, companies or societies;

Thus, the prohibitions established in the commented article can be applied only to the extent that they do not contradict the listed requirements of international standards.

Suspension of work by an employee is of a personal nature, not related to production needs. The purpose of the suspension in this case is the natural, legally permitted self-defense by a citizen of his violated right, subject to the conditions of proportionality and sufficiency.

In the event of a delay in the payment of wages for a period of more than 15 days, the employee has the right, by notifying the employer in writing, to suspend work for the entire period until the payment of the delayed amount (Article 142 of the Labor Code of the Russian Federation). The notice period must be determined as precisely as possible. The notice must be filed starting on the 16th day of the delay, calculated from the day following the - day of the established payment. The days of payment are established in the internal labor regulations of the organization, employment contract, collective agreement.

The notice of suspension of work should be drawn up in 2 copies. You can submit a notice in two ways:

Directly to the office, reception, other service of the enterprise, which receives and registers correspondence. The employee must require that the second copy that he has left be marked with the date of acceptance of the notice and the incoming number;

Send notice by mail with acknowledgment of receipt. The day the letter is sent will be considered the day the notice is given.

It should be borne in mind that the law provides for the obligation of the employee to notify the employer in writing about the suspension of work. Failure to comply with this requirement is considered by employers as non-compliance with the procedure established by law and is regarded as a disciplinary violation.

The use of the provided Art. 142 of the Labor Code of the Russian Federation, the right to suspend work is not a mandatory action for an employee. The employee may continue to work even if the employer violates the obligation to pay on time. In this case, the fact of a voluntary offer by the employee of his services takes place and, in accordance with ILO Convention No. 29, such labor is not recognized as forced labor.

Non-payment (payment not in full) of wages in fixed time constitutes a violation of labor legislation, namely: articles 136, 56 of the Labor Code of the Russian Federation. In accordance with Art. 142 of the Labor Code of the Russian Federation after 15 days of the offense, the employee may suspend work. This action is essentially a form of self-defense of the violated right provided for by the Labor Code. The employee's refusal to fulfill his obligations is commensurate with the offense to be prevented and, if the work is continued no later than the day following the elimination of the offense, does not go beyond the necessary limits.

A notice of suspension of work is a refusal of a voluntary offer by an employee of his services in connection with a change essential conditions work. Such a change in modern Russian legislation is classified as forced labor, which is prohibited by the constitutional norm. The legality of the situation can be restored by the employer by stopping the offense or by the employee through the withdrawal of the notice, that is, the refusal to exercise their legal right.

However, during the period of validity of the notice, the prohibition is binding on both parties to the employment contract. Thus, illegal actions(inaction) of the employer due to the lawful behavior of the employee, the latter is deprived of the income in the form of wages during the period of suspension, which he would have received if the employer complied with the payment obligation assumed under the employment contract. The illegality of the actions of the employer is a single circumstance present in the illegal dismissals, transfers and in Art. 142 of the Labor Code of the Russian Federation. This circumstance unlawfully deprives the employee of the opportunity to work, i.e. perform a certain labor function in compliance with the Internal Regulations regarding working hours, workplace and other provisions governing the performance of the function.

The suspension of work also means the suspension of the working hours, being at a certain workplace and other provisions directly related to the performance of the labor function, fixed in the internal labor regulations. A lawful refusal to work is also a refusal to comply with the working hours. The possible presence of an employee at the workplace without performing a labor function has no independent legal significance.

The foregoing gives sufficient reason to believe that the suspension of work on the grounds provided for in Art. 142 of the Labor Code of the Russian Federation, can only be qualified as forced absenteeism by payment of compensation for this period in the amount of average earnings. Wherein material liability for delay and the obligation to compensate non-pecuniary damage arise in addition to the above compensation.

It should also be borne in mind that Article 419 of the Labor Code of the Russian Federation establishes the civil liability of an employer guilty of violating labor laws and other regulations containing labor law norms. Articles 393, 15 of the Labor Code of the Russian Federation provide for the obligation to compensate for lost income, i.e. lost earnings. The provision on the fault of the employer, as the basis of liability, contained in Art. 419 of the Labor Code of the Russian Federation and is permitted in relation to illegal deprivation of the opportunity to work by Article 234 of the Labor Code of the Russian Federation - "in all cases", i.e. regardless of guilt.

Article 379 of the Labor Code of the Russian Federation provides that at the time of refusal from said work the employee retains all the rights provided for by the Labor Code of the Russian Federation and other legal acts. Since the performance of labor duties without appropriate remuneration is work not provided for by an employment contract, the second provision of Article 379 of the Labor Code of the Russian Federation is fully applicable that the employee retains all rights, including the right to receive wages. If the employer continues not to pay wages, the employee has the right to file a claim with the court (a sample of the employee's claim is attached).

The statement of claim is filed directly with the court at the location of the defendant (the location of the body legal entity). When applying to the court with a claim for the restoration of violated labor rights, the employee is exempted from paying state duty. The statement of claim, together with the documents attached to the statement of claim, can be sent by mail by registered mail with acknowledgment of receipt.

§ 3. Threat to the life and health of an employee

The right of an employee to refuse to perform work in the event of a danger to his life and health due to violation of labor protection requirements (without any consequences) follows from the third part of Art. 37 of the Constitution of the Russian Federation, according to which everyone has the right to work that meets the requirements of safety and hygiene, as well as from the first part of Art. 210 of the Labor Code and from the first part of Art. 4 of the Federal Law "On labor protection", which proclaims the priority of preserving the life and health of workers. Proceeding from the norm of this article, it follows that no material or other benefits by the employer can be placed above the life and health of employees. However, in the data legislative acts the reservation "with the exception of cases provided for by federal laws" was made. Such cases include employees whose functions are directly related to work in emergency circumstances to save people's lives and large material values. These include employees of the Ministry of Emergency Situations, mountain rescuers, epidemiologists, etc.

In accordance with the Law on Labor Protection, in cases where the activities of organizations or their structural divisions is carried out with dangerous working conditions for the life and health of workers, it can be suspended by decision of the authorized bodies until the specified violations are eliminated (Article 25).

Performance of work in accordance with the requirements of labor protection means that the employer must ensure safe working conditions (use of personal protective equipment, flushing and neutralizing agents, compliance with the work and rest regime, training in safe methods and techniques for performing work, checking their knowledge of labor protection requirements, etc. .P.).

If an immediate danger to the life and health of an employee arises in the course of work due to a violation of labor protection requirements (with the exception of cases provided for by federal laws), he has the right to refuse to perform work until such danger has been eliminated (for example, from working at height without protective devices and in the absence of a safety belts).

As follows from the content of Part 7 of Art. 220 of the Labor Code, the employee has the right to refuse to perform hard work and work with harmful or dangerous working conditions that are not provided for by the employment contract. In this case, cases when the employee cannot exercise this right are not indicated here. However, based on Art. 379 of the Labor Code of the Russian Federation, the employee has the right to refuse to perform the above works in all cases, including temporary transfer to another job if necessary, including to replace an absent employee (74 Labor Code).

The work entrusted to employees cannot be contraindicated to them for health reasons and must be performed in conditions that meet the requirements of labor protection. The employee has the right to refuse to perform work that is contraindicated for him for health reasons. The assigned work must comply with the recommendations of the medical and social expert commission, the medical opinion of the clinical expert commission.

These provisions are based on ILO Convention No. 155 on Safety and Health at Work and production environment(1981), ratified by the Federal Law of 11.04.98 N 58-FZ (SZ RF. 1998. N 15. Art. 1698), according to which the worker immediately notifies his immediate superior of any situation about which there is sufficient reason to believe that she creates an immediate and serious threat to his life or health; as long as the employer, if necessary, has not taken measures to eliminate it, he cannot demand that the employee resume work while the specified danger persists (subsection "f" art. 19).

According to Art. 11 of the ILO Convention N 119 on the supply of machines with protective devices (1963) (ratified by Decree of the Presidium of the Supreme Soviet of the USSR of 18.06.69 N 3962-VII - Gazette of the USSR. 1969. N 28. Art. 240), the employee can also and must refuse to use machine without the protective devices it is equipped with in place, and the employer cannot demand that the specified work be performed.

The employer, representatives of the employer do not have the right to prevent employees from exercising their self-defense of labor rights. Prosecution of employees for using legally acceptable methods of self-defense of labor rights is prohibited.

This provision is in line with Art. 13 of the ILO Convention N 155 on occupational safety and health and the working environment (1981), ratified by the Federal Law of 11.04.98 N 58-FZ (СЗ RF. 1998. N 15. Art. 1698), according to which a worker who left work, who had reasonable grounds to believe that it posed an immediate and serious danger to his life or health, protection against unreasonable consequences is provided in accordance with national conditions and practice.

In accordance with Art. 220 of the Labor Code, if an employee refuses to perform work in the event of a danger to his life and health, with the exception of cases provided for by federal laws, the employer is obliged to provide the employee with another job while such danger is eliminated. If the provision of other work for objective reasons is impossible, the downtime of the employee until the danger to his life and health is eliminated is paid by the employer in accordance with the Labor Code and other federal laws.

In the event that the employee is not provided with personal and collective protective equipment, the employer is not entitled to demand from him the performance of labor duties and is obliged to pay the idle time that has arisen for this reason in accordance with the Labor Code.

Similar Art. 220 of the Labor Code, the norms are also provided for by the Federal Law "On the Fundamentals of Occupational Safety in the Russian Federation" for cases where an employee refuses to perform work in the event of a danger to his life and health (clause 4, article 9), does not provide the employee with personal and collective protective equipment (clause 5, article 9), performing heavy work and work with harmful or dangerous working conditions not provided for by the employment contract (clause 6, article 9).

The rule that the employer does not have the right to demand that the employee perform work without providing him with personal protective equipment is also enshrined in Art. 10 of ILO Convention No. 148 concerning the protection of workers against occupational risk caused by air pollution, noise and vibration at workplaces (1977) (ratified by Decree of the Presidium of the Supreme Soviet of the USSR of March 29, 88 N 8694-XI - Vedomosti USSR. 1988. N 14. Art. 223).

In order to implement paragraph 4 of Article 21 of the Federal Law "On the Fundamentals of Labor Protection in the Russian Federation" in terms of the state examination of working conditions during licensing certain types activities of the Ministry of Labor and social development The Russian Federation decides, approved "Methodological recommendations for conducting state examination of working conditions when licensing certain types of activities"

If violations of the normative requirements of labor protection are detected that can lead to a danger to the life and health of workers (operation technical means who have not passed examination and registration, the absence of labor protection requirements in technological maps or projects for the production of work, lack of training and testing of knowledge on labor protection of managers, specialists and workers, failure to comply with the instructions of supervisory and control authorities on violations of the basic regulatory requirements of labor protection, failure to take measures to prevent accidents at work and occupational diseases etc.) The Ministry of Labor and Social Development of the Russian Federation (Decree of the Ministry of Labor of Russia dated July 2, 2001 N 53) recommended that a license applicant or licensee be issued a negative expert opinion and send a submission to the licensing authority about the inappropriateness of issuing a license, suspending it or canceling it .

The employee's refusal to perform work in the above cases does not entail any adverse consequences for him, for example, the employee cannot be subjected to disciplinary action.

In accordance with Art. 5 Fundamentals, the employee is guaranteed from any punishment and infringement of his rights (from unreasonable consequences in case of refusal to perform work, not only because of the danger to his life and health, but also if the employer (or a person authorized by him) tries to force him to perform work not provided for by labor contract heavy work or work with harmful or dangerous working conditions).

The state, in accordance with the Fundamentals, guarantees the employee protection from possible arbitrariness on the part of the employer even in the event that his workplace is liquidated at the request of state supervision and control bodies due to the impossibility of ensuring healthy and safe working conditions.

In this case, the employer is obliged to provide the employee with a new job corresponding to his qualifications. If this is not possible (the corresponding jobs are occupied by other employees or they do not exist at all), then with the consent of the employee, he must be trained free of charge, at the expense of the employer new profession(specialty). At the same time, the employer is obliged to keep the employee's average earnings in the previous profession (specialty) for the entire period of retraining; The legislator did not stipulate any time limits on this issue.

At the time of refusal from such work, the employee retains all the rights provided for by labor legislation. First of all, this is the preservation of earnings - such a guarantee is provided for in Art. 220 of the Labor Code of the Russian Federation: in connection with the refusal of the employee to perform work in the event of a danger to his life and health and the impossibility of providing the employee with another job, the employer is obliged to pay such "simple" according to the rules of Art. 157 of the Labor Code of the Russian Federation.

protection right labor worker

The next way to protect your rights and legitimate interests is self-defense. Let's start with what self-defense is. The legislator does not legally define self-defence, but there are many opinions in the legal literature about what it is. Let's consider a few of them:

T.V. Ivankina: self-defence refers to the actions of a citizen to protect their rights without applying to bodies authorized to protect the rights of workers.

A.I. Shebanova: self-defense is the refusal of an employee to fulfill his labor functions in order to restore their violated rights.

A.B. Kanunnikov: self-defense - independent actions of an employee aimed at protecting violated rights established by law, other regulatory legal acts, local acts, collective agreements, agreement or employment contract.

Also among scientists there are supporters of such a definition of self-defense as: self-defense is not only independent actions, but also the appeal of the latter to the authorized bodies of state power for the protection of their rights.

From the definitions given by lawyers, we can conclude that the main element in the implementation of this method of protection is independence. It manifests itself in the fact that if, with the two previous methods, the protection of the labor rights of an employee is carried out by other people: representatives of trade unions, labor inspectors and other persons carrying out activities on behalf of state bodies or public organizations whose powers include the protection of the rights and legitimate interests of the employee in the field of labor legislation.

It should be noted that the legislator put the self-defense of labor rights by employees in the first place, thereby emphasizing the priority of this method over the others, not by chance. The point is that in modern conditions even if there are strictly regulated rules in labor relations It is very problematic to completely eliminate violations of the labor rights of workers without their independent actions. The worker should not rely only on the protection of the state according to D.D. Reprintseva.

In accordance with Article 379 of the Labor Code of the Russian Federation, an employee has the right to exercise self-defense in the following ways:

• 1) refuse to perform work that is not provided for by the employment contract;
• 2) refuse to perform work that directly threatens his life and health, with the exception of cases provided for by federal laws.

Also, among the methods of self-defense not specified in Article 379 of the Labor Code of the Russian Federation, jurists distinguish such as: termination of an employment contract at the initiative of an employee due to moral persecution; the initiative of employees to file claims, applications to jurisdictional bodies for the resolution of individual and collective labor disputes; radio address, editorial printed publications and other media with reports of violations; refusal of the employee to perform work (suspension of his labor activity) in case of delay in payment of wages for a period of more than 15 days in accordance with Art. 142 TK.

I.A. Kostyan says that such a method of self-defense as applying to jurisdictional bodies to restore their violated rights is mistakenly recorded by many lawyers in the list of self-defense methods, since the element of independence is lost, because after contacting the appropriate body, protection of the rights of a person whose labor interests were violated takes over this body.

The way of self-defense in the first place is the refusal to perform work. The form is a written notice to the employer of such a refusal. Cases when such a refusal is possible are regulated by Article 379 of the Labor Code of the Russian Federation. It should be emphasized that the employee has the right to refuse to perform labor duties only in the event of an illegal transfer, for example, carried out without the written consent of the employee, transfer to work that is contraindicated for the employee for health reasons, transfer to hard work, work with harmful or dangerous working conditions, if such working conditions were not stipulated in the employment contract. If the transfer is carried out in accordance with the law, for example, the employer uses his right to a temporary transfer in the event of an industrial accident and at the same time the working conditions (impact of harmful production factors or factors that determine the danger or severity of labor) do not change, the employee does not have the right to refuse to perform work.

In cases stipulated by federal laws, an employee does not have the right to refuse to perform work, despite the existence of a threat to his life and health. For example, in accordance with the Federal Law of August 22, 1995 No. 151-FZ “On Emergency Rescue Services and the Status of Rescuers”, all employees of professional emergency rescue services, professional emergency rescue teams must strictly follow the orders and instructions given by the heads of these services and formations. Due to the special nature of the work they perform, they cannot refuse to perform their duties even if this poses a threat to their life and health.

Self-defense of labor rights must be distinguished from a strike. Self-defense is the refusal to perform work in order to protect the individual labor rights of the employee. A strike, on the other hand, is a refusal to perform labor duties (in whole or in part) in order to resolve a collective labor dispute, i.e. aimed at upholding collective interests or collective rights. The right to self-defense is exercised by the employee independently, independently of other employees. The decision to declare a strike can only be taken by a collective - a general meeting of employees of the organization. Finally, self-defense of labor rights and a strike differ in their legal consequences. Refusal to perform work in self-defense may last until the violation of labor rights is eliminated. The result of such a refusal can only be the restoration of the violated right of the employee. The duration of the strike is determined by the effectiveness of the conciliation procedures carried out during this period.

Special attention is given to such a question as the limits of self-defense of one's rights. Since the list of ways of self-defense of their labor rights specified in Article 379 of the Labor Code of the Russian Federation is open, this state of affairs, in fact, gives individuals an unlimited number of ways to protect themselves. But at the same time, the subject of labor law is obliged to remember that he has obligations, such as to comply with the law and respect the rights and interests of others, as stated in Art. 17 of the Constitution of the Russian Federation. For example, if an employee exceeds the limits of self-defense and commits an offense in the process of its implementation, he may be held administratively or criminally liable. Also, according to scientists, in order for such a method as self-defense to become more effective and to avoid possible abuse of the abuse of this right by the subjects of labor law, they propose to consolidate the following principles: the indisputable possession of the right by a person who independently defends it; proportionality of the method of protection chosen by him to the violation; finding a method of protection within the limits of the actions necessary for its application.

LEGAL SCIENCES

A.A. Andreev

cand. legal Sci., Senior Lecturer, Department of Labor Law and Social Security, Moscow State Law University named after O.E. Kutafin (MSUA)"

SELF-PROTECTION OF AN EMPLOYEE AS ​​A WAY TO PROTECT LABOR RIGHTS

Annotation. The article considers one of the main ways to protect labor rights and freedoms - self-defense of labor rights by employees. The characteristics of the subjects, grounds and content of self-defense are given. The procedure for using the right to self-defense is considered. The shortcomings of the legal regulation of self-defense in the labor sphere are highlighted.

Keywords: self-defense of labor rights, the right of an employee to self-defense, methods of protection, forms of self-defense.

A.A. Andreev, Kutafin Moscow State Law University

EMPLOYEE SELF-DEFENSE AS A WAY TO PROTECT LABOR RIGHTS

abstract. The article describes one of the main ways to protect labor rights and freedoms - self-protection of labor rights of employees. The characteristics of the subjects and content of the grounds of self-defense. The order of use of the right to self-defense. Highlighted the shortcomings of legal regulation of self-protection in the workplace.

Keywords: self-defense of labor rights, worker's right to self-defense, protection methods, forms of self-

Guaranteeing state protection of the rights and freedoms of man and citizen in the Russian Federation, the Constitution of the Russian Federation in Art. 45 provided for the right of everyone to protect their rights and freedoms by all means not prohibited by law.

In Art. 352 of the Labor Code of the Russian Federation establishes the main ways to protect labor rights and legitimate interests, among which self-defense acts as one of the most important ways to protect the labor rights of workers. It should be noted that granting an employee the right to independently protect their labor rights has become a great progress in labor legislation, because not all branches of labor law in European countries provide employees with such an opportunity.

Self-protection of labor rights by an employee should be understood as an independent legal activity of an employee carried out in order to protect their labor rights without applying to jurisdictional bodies, as well as to bodies that supervise and control compliance with labor legislation and other regulatory legal acts containing labor law norms. It should be emphasized that self-defense is carried out exclusively by the employee, and in this case, the employee himself is a subject empowered to protect labor rights.

The provisions of the Labor Code of the Russian Federation regarding self-defense, unfortunately, do not allow the employee to fully use this method of protection in case of violation of labor rights. When an employee uses self-defense, his actions on the part of the employer can be vaguely assessed as lawful behavior, and as a disciplinary offense. Such ambiguity in the legal assessment indicates serious shortcomings in the design of the legal mechanism of self-defense, which give rise to a number of problems.

The first problem is the restriction of the rights of the employee due to the fact that his actions in the independent protection of labor rights can be regarded by the employer or the body

on the resolution of labor disputes as a disciplinary offense. Also, a negative factor for the employee when using self-defense will be the risk of deterioration in relations with his employer, so the employee will be afraid to use this method of protecting his labor rights. The second problem is the possible abuse of their right to self-defense by workers.

An employee has the right to take advantage of self-defence immediately after a violation of labor law or the threat of such a violation. In this regard, the provision of Art. 142 of the Labor Code of the Russian Federation, which stipulates that in the event of a delay in the payment of wages for a period of more than 15 days, the employee has the right, by notifying the employer in writing, to suspend work for the entire period until the payment of the delayed amount. The specified delay in self-defence limits the right of the employee, since he cannot immediately defend his violated rights.

The only obstacle to the implementation of self-defense can only be cases of restriction of rights and freedoms during the introduction of a state of emergency and cases provided for by federal laws, when the refusal of employees to work in self-defense will lead to adverse social consequences, as well as cases when the nature of the employee’s labor activity does not allow refusal from the performance of labor duties in the event of a danger to life and health.

It should be noted that the employee must carry out self-defense prudently, because its use must be justified by facts and reliable information. Otherwise, the use of this method of protecting one's labor rights may lead to unlawful infringement of the employer's rights and, as a result, the lawful bringing of the employee to disciplinary liability.

It should be noted that self-defense is not limited to refusing to work, as indicated in Art. 392 of the Labor Code of the Russian Federation. Self-protection of labor rights by an employee should begin with conflict-free forms of settlement of disagreements with the employer, and here an important place is given to negotiations. It is using the negotiation process that the parties can quickly find a compromise solution to the disputed situation that has arisen, because the employer’s failure to fulfill his obligations to the employee is not always purposeful and volitional, but may be due to various factors. For example, a delay in the payment of wages may be caused by economic crises, production failures, and other reasons. Refusal to perform work generates an increase in the severity of the conflict and subsequently there is an inevitability for the employee to leave the place of work, while a conflict-free process of resolving disagreements helps the employee and the employer to find compromise solutions without tension in relations contentious issues and maintain a favorable psychological climate in the organization. Therefore, independent resolution of the arisen problematic issues the employee should start with the negotiation process with the employer.