Based general provisions of the Labor Code of the Russian Federation on liability, the employee is obliged to compensate the employer for the damage caused to him. The conditions for liability are the guilty unlawful behavior of the employee and the amount of damage proven by the employer (Article 233 of the Labor Code of the Russian Federation).

However far from all types of work allow delimiting the responsibility of each employee. In such cases, labor legislation gives the employer the right to introduce collective (brigade) liability.

Quoting the document:

Part 1 of Article 245 of the Labor Code of the Russian Federation: “When employees jointly perform certain types work related to the storage, processing, sale (vacation), transportation, use or other use of the values ​​transferred to them, when it is impossible to distinguish between the responsibility of each employee for causing damage and conclude an agreement with him on compensation for damage in full size, collective (brigade) liability may be introduced.

Article 248 of the Labor Code of the Russian Federation allows voluntary compensation by employees for damage caused. In this case, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team and the employer.

But if it was not possible to agree, the parties will have to defend their interests in court. What circumstances will the plaintiff-employer have to prove in order to receive compensation for the damage suffered?

Conventionally, they can be divided into two groups.

The first group - "general" circumstances, which are included in the subject of proof in the case of bringing the employee to both individual and collective liability.

The second group is “special” circumstances that are subject to proof by the plaintiff-employer only if the team (team) is held liable.

The circle of "general" circumstances is defined by paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52 (hereinafter referred to as the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52).

Quoting the document:

“The circumstances that are essential for the correct resolution of the case on compensation for damage by the employee, the obligation to prove which are assigned to the employer, in particular, include: the absence of circumstances excluding the material liability of the employee; unlawfulness of the behavior (action or inaction) of the tortfeasor; fault of the employee in causing damage; causal relationship between the employee's behavior and the resulting damage; the presence of direct actual damage; the amount of damage caused; compliance with the rules for concluding an agreement on full material liability.

Conditionally “special” circumstances to be established by the court are set out in paragraphs 14 and 16 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 52: the employer’s compliance with the rules for establishing collective (brigade) financial liability provided for by law, the degree of guilt of each member of the collective (team), the size of the monthly tariff rate(official salary) of each person, the time that he actually worked as part of a team (team) for the period from the last inventory to the day the damage was discovered.

The absence of circumstances excluding the material liability of the employee

The material liability of the employee is excluded in cases of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer’s failure to fulfill the obligation to ensure proper conditions for storing property entrusted to the employee (Article 239 of the Labor Code of the Russian Federation).

Paragraph 5 of Resolution No. 52 of the Plenum of the Supreme Court of the Russian Federation reveals the concept of normal economic risk: it can include the actions of an employee that correspond to modern knowledge and experience, when the goal could not be achieved otherwise, the employee duly fulfilled the tasks assigned to him official duties, showed a certain degree of care and discretion, took measures to prevent damage, and the object of risk was material values, and not the life and health of people.

With regard to collective liability employer , primarily, must prove that they have created the appropriate conditions to ensure the safety of the property entrusted to the brigade. Paragraph 3 of clause 5 of Decree No. 52 of the Plenum of the Supreme Court of the Russian Federation provides that “the employer’s failure to fulfill the obligation to ensure proper conditions for storing property entrusted to the employee may serve as a basis for refusing to satisfy the employer’s claims if this caused damage.”

Example from practice:

The Kuraginskiy District Court of the Krasnoyarsk Territory in case No. 33-1849 dismissed the claims of the individual entrepreneur D. against the employees M., K., N. for the recovery of compensation for material damage in the amount of 862,974 rubles.

The Krasnoyarsk Regional Court, by an appeal ruling dated February 25, 2015, supported the conclusions of the court of first instance, stating that “the court reasonably proceeded from the fact that during the consideration of the case it was reliably established that the employer, IP D., did not create appropriate conditions for the defendants to store entrusted them inventory items, since there was a fact of unlimited access to goods by other employees, namely IP D., her daughter Sh., senior seller K.A., which, by virtue of the provisions of Art. 239 of the Labor Code of the Russian Federation is an independent basis for refusing to satisfy the requirements of the employer.

In addition, the employer must take into account the provisions of part one of Article 244 of the Labor Code of the Russian Federation, according to which written agreements on full individual or collective (team) liability may be concluded with employees who have reached the age of eighteen and directly serve or use monetary, commodity values ​​or other property.

In this regard, the Plenum of the Supreme Court of the Russian Federation in paragraph 8 of Resolution No. 52 explained that the employer is obliged not only to provide evidence indicating that the employee can be held liable in the full amount of the damage caused, but also that at the time of its infliction the employee has reached the age of eighteen, with the exception of cases of intentional infliction of damage or damage in a state of alcoholic, narcotic or other toxic intoxication, or if the damage was caused as a result of a crime or administrative offense, when the employee can be held fully liable before reaching the age of eighteen ( article 242 of the Labor Code of the Russian Federation).

Compliance with the rules of imprisonment agreements on full collective (brigade) liability

An agreement on collective (team) liability can be concluded only with those employees who perform work included in the List of Works approved by the Decree of the Ministry of Labor and social development RF dated December 31, 2002 No. 85.

So, for example, the collective liability of employees can be introduced when performing work on the acceptance and payment of all types of payments; for settlements in the sale (realization) of goods, products and services, for servicing vending and cash machines; for the production and storage of all types of tickets, coupons, subscriptions and other signs (documents) intended for payment for services.

An agreement on collective liability can be concluded with employees of a warehouse (base) who perform work on the acceptance for storage, processing, storage, accounting, release of material assets, as well as with employees engaged in manufacturing (assembly, installation, adjustment) and repair machinery and equipment, instruments, systems and other products manufactured for sale to the public, as well as parts and spare parts.

According to the Letter of Rostrud dated October 19, 2006 No. 1746-6-1, the specified List of positions and works is exhaustive and is not subject to broad interpretation. The conclusion of agreements on full individual or collective (team) liability with persons who perform work not included in the relevant Lists is an unconditional basis for refusing to satisfy the employer's claim to recover the amount of damage caused from employees.

An example from judicial practice:

The Krasnoyarsk Regional Court in its appeal ruling dated October 22, 2014 in case No. 33-10329 stated the following: “Checking the plaintiff’s arguments about the legality of bringing employees to liability on the basis of contracts concluded with them on full liability, the court of first instance came to the correct conclusion that these contracts concluded with Yu. and I.V. cannot serve as a basis for recovering material damage from them in full, since they were concluded in violation of the requirements of Decree of the Ministry of Labor of the Russian Federation dated December 31, 2002 No. 85 “On approval of lists positions and works replaced or performed by employees with whom the employer can enter into written contracts on full individual or collective (team) liability”, as well as standard forms of contracts on full liability, since the positions of the head of the boiler house and power engineer, in which defendants work, and the work performed by them is not included in the List The number of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full individual liability for the shortage of entrusted property.

Attention!

A collective (team) of workers can be held fully liable only for the lack of material assets, but not for their damage, damage, etc. This follows from the literal content of Part 3 of Article 245 of the Labor Code of the Russian Federation: “Under an agreement on collective (brigade) liability, valuables are entrusted to a predetermined group of persons, which is fully liable for their shortage.”

The employer must conclude one contract with all members of the team. This is provided for by part 2 of article 245 of the Labor Code of the Russian Federation.

Quoting the document:

"A written agreement on collective (team) liability for damage is concluded between the employer and all members of the team (team)."

If the employer has concluded agreements on full liability with each member of the team (team), then the claim for damages will be denied.

Example from practice:

The Judicial Collegium for Civil Cases of the Orenburg Regional Court, by an appeal ruling of October 10, 2013 in case No. 33-83 / 2013 (33-8177 / 2012), refused to satisfy the claims of an individual entrepreneur against two employees to recover the amount of the shortfall.

One of the grounds for refusing the claim was the fact that agreements on full liability were concluded with the defendants, who were sellers in the store, but in fact the sellers labor functions carried out collectively, however, an agreement on full collective (brigade) liability was not concluded with them.

Justifying its position, the court of appeal pointed out that “the establishment of collective (team) liability falls within the competence of the employer, however, if the employer did not consider it necessary to establish collective liability, then he should have provided the employees with the conditions for individual full liability, which the employer did not It was".

The standard form of an agreement on full collective (team) liability was approved by the Decree of the Ministry of Labor No. 85 (Appendix No. 4). According to the specified Decree, in addition to the contract, the employer is also obliged to issue an appropriate order on the establishment of collective liability.

Wrongful behavior of an employee fault of the employee in causing damage, causal relationship between the behavior of the worker and the resulting damage

It is advisable to consider these three elements of the subject of proof in conjunction, taking into account their regulation by the same rules.

According to part 1 of article 247 of the Labor Code of the Russian Federation, before making a decision on compensation for damage by specific employees, the employer is obliged to conduct an audit to determine the amount of damage caused and the reasons for its occurrence. To conduct such an inspection, the employer has the right to create a commission with the participation of relevant specialists, as well as require an explanation from the employee.

Since collective material liability can be assigned to employees only in the event of a shortage of inventory items, then, as a rule, the issue of compensation by employees for damage arises after the shortage is identified based on the results of the inventory. In this regard, the employer should pay special attention to the procedure for conducting an inventory, as well as the proper execution of inventory documents.

The procedure for conducting an inventory is determined by the Order of the Ministry of Finance of the Russian Federation of June 13, 1995 No. 49 (as amended on November 8, 2010) “On Approval of the Guidelines for the Inventory of Property and Financial Liabilities”. Literally following this document will allow the employer to prove to the court a whole range of circumstances: the fact of causing harm to the employer, the illegality of the actions of employees, the causal relationship between these elements, as well as the total amount of damage caused.

In disputable cases, in order to establish the facts of the presence or absence of a violation during the inventory, the court may appoint a forensic accounting expertise in the case.

An example from judicial practice:

By the decision of the Millerovsky District Court of the Rostov Region dated June 28, 2016 in case No. 33-17138 / 2016, the claims of an individual entrepreneur for compensation for damage caused by an employee in the performance of job duties. The Rostov Regional Court, by an appeal ruling of September 26, 2016, agreed with the decision of the court of first instance.

The essence of the matter. Between individual entrepreneur and employees (sellers in the store) signed an agreement on full collective liability.

In the store, a planned inventory was first carried out, which revealed a shortage in the amount of 278,035.10 rubles. The workers did not object to compensation for the damage in equal shares. Then a sudden inventory was carried out, which revealed a shortage of another 7,522 rubles. In addition to the shortage amounts, the employer asked to recover from the employees the cost accounting services agencies.

As part of the consideration of this case, the court of first instance ordered a forensic accounting examination. The following questions were asked for permission: “Whether there were violations of the current legislation during the inventory in the store for the period from 01/01/2014 to 12/25/2014, carried out according to the order of 12/15/2014 in the period from 12/15/2014 to 12/25/2014, if yes, then what?

The examination revealed the grossest violations during the inventory:

The order dated 12/15/2014 was issued backdating, the form of the order does not meet the requirements of the main normative document on conducting an inventory of property and financial obligations - Methodological Instructions No. 49;

In the summary of audit data submitted by the plaintiff, not a single value is named, there is no actual and accounting availability inventory items in quantitative terms, therefore, it is not possible to determine what values ​​the commission recalculated, in what amount, and in what quantity according to the submitted document. On the basis of the foregoing, the court concluded that “The data set on the audit of the store does not correspond either in form or in content to the inventory list of goods and materials, and the plaintiff violated clause 2.4 of the Methodological Instructions”;

The data set does not contain information on the period of the inventory, there are no signatures of the persons who conducted the inventory and are responsible for the correctness of the results obtained, there are no receipts that by the time of the inventory the materially responsible persons handed over all the documents, there is no inventory label in the form No. INV-2 , approved by Decree No. 88, was not compiled, there is no collation sheet of the results of the inventory of inventory items in the form No. INV-19, approved by Decree No. 88, in connection with which clause 4.1 of the Methodological Instructions is violated.

Under such circumstances, the court considered the presence of four conditions at the same time not proven: direct actual damage; unlawful behavior of the employee; fault of the employee in causing damage; causation between the unlawful behavior of the employee (action or inaction) and the resulting damage.

Determining the amount of damagecaused by each of the employees, taking into account his fault

According to paragraph 14 of the Decree of the Plenum of the Armed Forces of the Russian Federation No. 52, when determining the amount of damage to be compensated by each of the employees, the court must take into account the degree of guilt of each member of the team (team), the amount of the monthly tariff rate (official salary) of each person, the time that he actually worked as part of a team (team) for the period from the last inventory to the day the damage was discovered.

These provisions are actually a replica of clause 7.3. Order of the USSR Ministry of Trade of August 19, 1982 No. 169, which is still in force: “The damage subject to compensation caused by the brigade to the enterprise is distributed among its members in proportion to the monthly tariff rate ( official salary) and actually worked time for the period from the last inventory to the day the damage was discovered.

The amount of compensation for damage by each member of the brigade can be determined by the following formula:

C x H

R = ------------------,

1 Z + Z + ... + Z

1 2n

Where P is the amount of compensation for damage by the first member of the brigade;

C - the amount of damage caused by the brigade;

З, З, З, ... З - wages of team members for 1 2 3 n

inter-inventory period for salaries, taking into account the worked

time<*>.

<*>When calculating the amount of compensation for damage, wages do not include bonuses received by members of the team, as well as severance pay, compensatory and other payments, which, according to the legislation, are not levied.

In conclusion, it should be said that even if the employer proves all the circumstances included in his subject of proof, the court, in accordance with part one of Article 250 of the Labor Code of the Russian Federation, may, taking into account the degree and form of guilt, the financial situation of the employee, as well as other specific circumstances, reduce the amount subject to recovery, but is not entitled to completely relieve the employee from such an obligation.

Such a reduction is also possible with collective (team) liability, but only after determining the amounts to be recovered from each member of the team (team), since the degree of guilt, specific circumstances for each member of the team (team) may be different (for example, active or indifferent attitude of the employee to the prevention of damage or reduction of its size). A reduction in the amount of the penalty from one or more members of the team (team) cannot serve as a basis for a corresponding increase in the amount of the penalty from other members of the team (team). These instructions to the courts are given in paragraph 16 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 52.

Collective (brigade) liability of employees

Collective (brigade) liability (hereinafter referred to as collective liability) is a kind of full liability. Its legal basis is a written agreement on collective liability.

When employees jointly perform certain types of work related to the storage, processing, sale (vacation), transportation or use in the production process of the values ​​transferred to them, when it is impossible to distinguish between the liability of each employee and conclude an agreement with him on full liability, collective ( brigade) financial responsibility.

This responsibility is widespread in various industries economy: trade, public catering, construction, transport, etc. .

The need to introduce collective liability is determined by the employer in accordance with Art. 406 of the Labor Code, a written contract is concluded between the employer and all members of the collective team.

Employees with whom such contracts are concluded are materially responsible persons. With the introduction of this liability, material damage to the employer is compensated by the team (team) in full.

Collective material liability can only be established for persons who have reached the age of 18 (clause 3 of the Regulations on collective (team) liability (hereinafter referred to as the Regulations on collective material liability), approved by the Decree of the Ministry of Labor of the Republic of Belarus dated April 14, 2000 N 54 (hereinafter - Decree N 54)).

Collective liability can be established under the simultaneous presence of the following conditions (part 1 of article 406 of the Labor Code):

1) joint performance of work by employees.

In other words, workers must work in the same area of ​​work with the same material values.

2) the work performed must be related to the storage, processing, sale (vacation), transportation or use in the production process of the values ​​transferred to them.

3) it is impossible to distinguish between the liability of each employee and conclude an individual contract with him.

The court checks whether the employer has complied with the rules for establishing collective liability (paragraph 26 of the Decree of the Plenum on liability) provided for by law.

An indicative list of works, during the performance of which collective liability may be introduced, is approved by Resolution N 54 (hereinafter referred to as the Indicative List for Collective Liability).

Taking into account the Model List for Collective Liability, the employer may, on the basis of collective agreement, and in its absence, independently approve the list of positions and works replaced or performed by employees with whom written agreements on full collective liability can be concluded (clause 2 of Resolution N 54).

A local list in organizations that have a collective agreement may be contained in an annex to the collective agreement. If the organization does not have a collective agreement, then the local list, as a rule, is approved by putting an approval stamp on it.

A member of the brigade and a party to the agreement on collective liability will not be an employee who, while performing the functions and tasks related to the work of the brigade, is not involved in its direct activities.

These include loaders, cleaners, janitors, etc. The recruitment of the newly created team of the brigade is carried out on the basis of the principle of voluntariness.

When new employees are included in the brigade team, the opinion of the brigade team is taken into account. If the head of the team of the brigade changes or more than 50% of its original composition leaves the team, the contract must be renegotiated. The contract is not renegotiated upon leaving the team of the brigade individual workers or hiring new employees. In this case, the date of his departure is indicated in the contract against the signature of the retired person, and the newly hired employee signs the contract and indicates the date of joining the team.

If the employee refuses to conclude an agreement on collective liability, the employer may offer him another job, and in the absence of it or refusal of the proposed job, he may be dismissed in the manner prescribed by law. Material damage is compensated in full on the terms of shared liability by distributing it among the members of this team of the brigade in proportion to the time worked for the period from the last inventory to the day the damage was discovered.

Based on the foregoing, it seems appropriate to amend the current Regulations on collective (brigade) liability, providing for a rule on the procedure for distributing material damage caused to the employer between members of the team team.

In order to recover from the employee in full the possible material damage, an agreement on material (agreement) is concluded with him in writing.

In other words, the absence of a contract will not allow the employer to bring the financially responsible person to full property liability. The employer actually assumes the entire risk of material damage that the employee may cause to him.

Agreements on collective (brigade) material are applied if it is impossible to distinguish between each employee for causing harm (Part 1 of Article 245 of the Labor Code of the Russian Federation).

The introduction by the employer of full collective (team) liability is carried out on the basis of an order or order, with which the members of the collective (team) must familiarize themselves under signature.

If an employee with whom the employer has the right to conclude an agreement refuses to conclude such an agreement immediately after applying for a job, then such behavior of the employee can be interpreted as a failure to fulfill labor duties.

Employee Liability Agreement

The concept of material liability of the parties to the employment contract and the conditions for its occurrence. Features of the liability of the employer to the employee in accordance with the contract. The main types of employee in front of the employer.

Definition of the concept and signs of material and disciplinary worker and employer. The study of the types and limits of responsibility of the parties to labor relations.

Agreement on full individual liability

An agreement on full individual liability (material liability agreement) regulates measures for causing damage to one of the parties to an employment contract (employee and employer). A material contract is concluded when an employment contract has already been concluded between an entrepreneur and a citizen.

Agreements on the full collective (team) liability of employees - Labor Law

On the basis of an agreement on collective (brigade) material, a full one can occur for a shortage of entrusted valuables (Article 245 of the Labor Code). A written contract is concluded by the employer with all members of the team (team) who have reached the age of 18, and in case of a shortage of valuables, all members of the team are liable, unless they prove that the damage was not their fault.

¦ joint performance by employees of certain types of work related to the storage, processing, sale (vacation), transportation, use or other use of the values ​​transferred to them, when it is impossible to distinguish between the responsibility of each employee and conclude an agreement with him on full individual liability;

¦ consent to the conclusion of the contract of all members of the team (team).

Collective liability

“On approval of lists of positions and works. replaced or performed by employees with whom the employer may enter into written agreements on full individual or collective

Specified contracts can only be concluded with those employees who perform the work included in the List (approved by the Decree of the Ministry of Labor of Russia of December 31, 2002 N 85). In particular, such works are: acceptance and payment of all types of payments; settlements in the sale (realization) of goods, products and services (including not through the cash desk.

Minus two documents in favor of personnel officers and other trade secrets

Regular readers remember that from the beginning of the year you can not issue a travel certificate, a job assignment, and you don’t need to demand a trip report from an employee either. Now there are two fewer documents. There is no need to keep registers of employees leaving on a business trip and arriving at a business trip. How to arrange a business trip and confirm its duration without travel documents, read here.

Do you remember the first time you made out maternity leave employee? What if she works urgently? employment contract, part-time or part-time, then the mission becomes impossible.

The difference between individual liability and collective liability

As for the collective. In this case, the collective material one is introduced when employees perform certain types of work together. associated with the storage, processing, sale (vacation), transportation, use or other use of the values ​​transferred to them, when it is impossible to distinguish between each employee for causing damage and conclude an individual agreement with him on compensation for damage in full.

The list of works, during the performance of which full collective liability for the shortage of property entrusted to employees can be introduced, practically coincides with the list of works, during the performance of which an agreement on full individual liability is concluded with employees.

Full collective (brigade) liability.

By general rule material liability is individual. However, in the course of carrying out their activities in organizations, it may be introduced full collective liability.

In what cases can an organization introduce collective (team) liability?

According to the first part of Article 245 of the Labor Code of the Russian Federation, collective (team) liability is introduced by the employer if (simultaneously) the following conditions are present:

1) joint performance by employees of certain types of work (provided for in the Decree of the Ministry of Labor of the Russian Federation of December 31, 2006 No. 85) related to the storage, processing, sale (vacation), transportation, use or other use of the values ​​transferred to them,

2) the impossibility of delimiting the responsibility of each employee for causing damage and concluding an agreement with him on compensation for damage in full.

The procedure for establishing collective (team) liability is set out in Decree of the Ministry of Labor of the Russian Federation of December 31, 2002 N 85 "On Approval of the Lists of Positions and Works Replaced or Performed by Employees with whom the Employer Can Conclude Written Agreements on Full Individual or Collective (Team) Material responsibility, as well as standard forms of agreements on full liability".

Appendix No. 3 to the said Resolution contains a list of works, during the performance of which full collective (team) liability for the shortage of property entrusted to employees can be introduced:

Works: on acceptance and payment of all types of payments; for settlements in the sale (realization) of goods, products and services (including not through a cash desk, through a cash desk, without a cash desk through a seller, through a waiter or other person responsible for making payments); maintenance of vending and cash machines; for the production and storage of all types of tickets, coupons, subscriptions (including subscriptions and coupons for the release of food (food) and other signs (documents) intended for payment for services.

Works related to the implementation of: depository activities; examination, verification of authenticity and other verification, as well as destruction of banknotes in the prescribed manner, valuable papers issued by a credit or other financial institution and/or Russian Ministry of Finance forms; transactions for the purchase, sale, authorization for payment and other forms and types of circulation of banknotes, securities, precious metals, coins made of precious metals and other currency values; operations with cash when servicing ATMs and servicing customers who have individual safes in the vault, accounting and storage of valuables and other property of customers in the vault; operations for the issuance, accounting, storage, issuance and destruction of banking, credit, discount cards, cash and other financial services for customers, for the calculation, recalculation or formation of cash and currency values; collection functions and transportation (transportation) Money and other values.

Works: for the purchase (acceptance), sale (trade, release, sale) of services, goods (products), their preparation for sale (trade, release, sale).

Works: on acceptance for storage, processing (manufacturing), storage, accounting, release (issuance) of material assets in warehouses, bases, storerooms, points, departments, at sites, in other organizations and divisions; for equipping passenger ships, wagons and aircraft; servicing the residential sector of hotels (camping sites, motels, etc.).

Works: on acceptance from the population of cultural and household items and other material assets for storage, repair and for performing other operations related to the manufacture, restoration or improvement of the quality of these items (values), their storage and other operations with them; for the issuance of rent to the population of cultural and household items and other material values.

Works: on acceptance and processing for the delivery (escort) of cargo, baggage, postal items and other material and monetary values, their delivery (escort), issue (delivery).

Works: for the manufacture (assembly, installation, adjustment) and repair of machines and equipment, instruments, systems and other products manufactured for sale to the public, as well as parts and spare parts.

Works: on the purchase, sale, exchange, transportation, delivery, forwarding, storage, processing and use in the production process of precious and semi-precious metals, stones, synthetic corundum and other materials, as well as products made from them.

Works: on cultivation, fattening, maintenance and breeding of agricultural and other animals.

Works: for the manufacture, processing, transportation, storage, accounting and control, sale (purchase, sale, supply) of nuclear materials, radioactive substances and waste, others chemical substances, bacteriological materials, weapons, ammunition, components for them, explosives and other products (goods) prohibited or restricted for free circulation.

Prior to the adoption of this resolution, the Order of the USSR Ministry of Health dated December 18, 1981 N 1283 was in force, which approved the list of works, during the performance of which collective liability may be introduced.

Appendix No. 4 to the above resolution contains a standard form of an agreement on full collective (brigade) liability:

Is it obligatory to use the standard form of the contract?

As follows from the first part of Article 244 of the Labor Code of the Russian Federation, agreements on full liability must be concluded in writing. But should they be drawn up strictly according to the standard forms approved by the Russian Ministry of Labor, or can standard forms be used as the basis for the development of specific contracts? The answer to this question is not contained in the Labor Code of the Russian Federation and still remains one of the most obscure.

On the one hand, in part 4 of article 426 Civil Code The Russian Federation specifically states that in cases provided for by law, the Government of the Russian Federation may issue rules binding on the parties when concluding and executing public contracts (standard contracts, provisions, etc.). The government, introducing standard forms of contracts on full liability, pursues the goal of protecting the employee from the arbitrariness of the employer. So, according to the agreements on liability, which were developed in the 90s in various organizations, the employee could be left at any time without wages claiming it as damages. The Labor Code of the Russian Federation changed this view by establishing in part two of Article 244 the provision that standard forms of contracts on full liability are approved in the manner established by the Government of the Russian Federation. Since these samples are approved by a regulatory legal act (decree of the Ministry of Labor of Russia), they are mandatory.

On the other hand, the model contract itself states that:17. Changing the terms of this Agreement, supplementing, terminating or terminating it are carried out by written agreement of the parties, which is an integral part of this Agreement.»

Therefore, if in practice it is required to clarify or supplement certain provisions of the contract, then the parties can do this both when drawing up the contract and by concluding an additional agreement to the contract. However, in order not to raise questions from labor inspectors on compliance standard form, the specific contract must contain mandatory conditions standard contract(supplemented or modified in accordance with the specific situation).

Is it necessary to issue an order for the introduction collective (brigade) liability?

To establish collective (team) liability, in addition to the conclusion contract, the employer must issue an order to introduce this type of liability.

This requirement is specified in the standard form of the contract in the section II "General Provisions":

« 1. The decision of the Employer to establish full collective (team) liability is formalized by order (instruction) of the Employer and announced to the Team (team).

The order (instruction) of the Employer on the establishment of full collective (team) liability is attached to this Agreement.»

If a standard form of a liability agreement is used as a ready-made form, then the order on the establishment of liability allows you to describe those issues that were not reflected in the agreement. And if the standard form was used as the basis for concluding a specific contract, then the order will contain much fewer provisions.

In either case, the order must include the following:

Sufficient grounds for establishing collective (team) liability (one of the types of work specified in Appendix No. 3 to Decree of the Ministry of Labor of the Russian Federation of December 31, 2002 N 85 with a description of the specific situation);

On the formation of a team (brigade) indicating the surnames, names, patronymics, positions of each member of the brigade;

On the appointment of the head of the team (team);

On the conclusion of an agreement on full collective (brigade) liability;

Issues related to the introduction of a special form of accounting and reporting;

Question about the appointment of a deputy head of the team.

It is necessary to familiarize the members of the team (team) with the order, which is indicated in paragraph 1 of the standard form, according to which the decision of the employer to establish full collective (team) liability must be announced to the team (team).

Sample order:

One of the cases of full liability is liability in cases of shortage of value entrusted to employees on the basis of a special written agreement. Written agreements on the full liability of an employee may be concluded with employees who have reached the age of 18 and who directly serve or use monetary, commodity values ​​or other property. Labor legislation establishes 2 types of full liability:

1. Agreements on full individual liability;

2. Agreements on collective (brigade) liability.

The list of positions substituted or performed by the employee, with which the employer can enter into written agreements on full individual liability for the shortage of entrusted property, contains 2 sections:

1) positions that are filled by employees (cashiers, controllers, other employees performing the duties of cashiers and controllers, directors, administrators, managers, other heads of a trade organization Catering, consumer services, hotels, their deputies, assistants, salesmen, merchandisers, heads of warehouses, pantries, laboratory assistants and methodologists of departments and others);

2) a list of work performed by employees (work on the acceptance and payment of all types of payments, on settlements in the sale of goods, products and services, work on the acceptance and processing for the delivery of cargo, baggage, postal item, other material values ​​and others).

With employees whose positions or work are not included in the list, contracts on full liability are not concluded. If, in violation of the established procedure, the employer nevertheless concluded such an agreement, it has no legal force, as it worsens the position of the employee in comparison with labor legislation. The contract is concluded in writing in two copies, signed by the employee and the employer and is valid as long as the employee works in this position. Responsibility comes for the lack of entrusted property. Liability comes with any form of guilt. Collective (brigade) liability. It can be introduced when employees jointly perform certain types of work related to the use of values ​​transferred to them, when it is impossible to distinguish between the responsibility of each employee for damages and conclude an agreement with him on full individual liability. The contract is concluded between the employer and all members of the team and is signed by the employer and all members of the team (team). The brigade is created on the principle of voluntariness. All members of the team have equal access to valuables, have the right to participate in the acceptance of valuables, their implementation, in inventories, the right to get acquainted with all documents for these valuables, and discuss all issues related to these valuables. When changing the head of the brigade or when more than 50% of the original team leaves the team, the contract must be renegotiated.

The contract is not renegotiated when individual employees leave the team or when new employees are admitted to the team. In these cases, the date of his departure is indicated against the signature of the retired member of the team, and the newly hired employee signs the contract and indicates the date of joining the team. When more than 50% of its members leave the team of the brigade, when the head of the team (team) changes, and also at the request of one or more members of the brigade, an unscheduled inventory is carried out. With voluntary compensation for damage, the degree of guilt of each team is determined by agreement between all members of the team and the employer. To be released from liability, a member of the team must prove the absence of his guilt. When recovering damages in court, the degree of guilt of each member of the team is determined by the court. In this case, the court must take into account the amount of the monthly tariff rate (salary) of each person, as well as the time that he actually worked as part of a team (team) from the last inventory to the day the damage was discovered.

59. Procedure for compensation (calculation, recovery) of damage caused to the employer. As a general rule, the amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses calculated on the basis of market prices in force in the area on the day the damage was caused, but not less than the value of the property according to accounting, taking into account the degree of depreciation of this property. In cases where it is impossible to establish the date of damage, the employer has the right to calculate the amount of damage on the day it was discovered. The market price is the most likely price at which this object of assessment can be alienated open market in a competitive environment, when the parties act reasonably, have all the necessary information, and any extraordinary circumstances are not reflected in the value of the transaction price. The federal law may establish a special procedure for determining the amount of damage caused to the employer by theft, deliberate damage, shortage or loss of certain types property and other valuables. Prior to making a decision on compensation for damage to specific employees, the employer is obliged to conduct an audit to determine the amount of damage and the reasons for its occurrence. To conduct such an inspection, the employer has the right to create a commission with the participation of relevant specialists. It is mandatory to demand a written explanation from the employee. If the employee refuses or evades submission of an explanation, an appropriate act is drawn up. The fact of damage, causes, amount, are confirmed by a document drawn up on the basis of the results of the audit. The procedure for recovering damages:

1. Voluntary procedure for compensation for damage - an employee who is guilty of causing damage can voluntarily compensate for it in whole or in part. By agreement of the parties, compensation for damage with installment payment is allowed. In this case, the employee submits to the employer a written obligation to compensate for the damage, indicating specific repayment periods. In the event of the dismissal of the employee who gave such an obligation, the outstanding debt is collected in court. In this case, only the rules apply. labor law. With the consent of the employer, the employee may transfer to him equivalent property or repair damaged property to compensate for the damage. 2. Forced order:

· Recovery of the amount of damage by order of the employer. Recovery from the employee of the amount of damage not exceeding the average monthly earnings is carried out by order of the employer, made by him no later than 1 month from the date of the final determination by the employer of the amount of damage caused.

· Judicial order. In other cases (1. when the amount of damage exceeds the average monthly earnings of the employee, 2. when the employer missed the monthly deadline for issuing a withholding order, 3. When the recovery of damage by issuing an order by the employer is not possible due to the dismissal of the employee), the recovery of damage is carried out in court okay. The employer has the right to apply to the court within 1 year from the date of discovery of the damage caused.

The labor dispute settlement body may, taking into account the degree and form of fault, the financial situation of the employee and other circumstances, reduce the amount of damage to be recovered from the employee. But this body does not have the right to completely relieve the employee from such a duty. Reducing the amount of damage is not carried out if the damage was caused by a crime committed for mercenary purposes. Reducing the amount of damage is permissible in cases of both full and limited liability. Such a reduction is also possible with collective (team) liability, but only after determining the amounts to be recovered from each member of the team (team), since the degree of guilt, specific circumstances for each member of the team may not be the same. For example, the active or indifferent attitude of the employee to prevent damage or reduce its size. It should be borne in mind that a reduction in the amount of the penalty from one or more members of the team (team) cannot serve as a basis for a corresponding increase in the amount of the penalty from other members of the team (team). The employer has the right, taking into account the specific circumstances under which the damage was caused, to fully or partially refuse to recover it from the guilty employee. Such a refusal is permissible regardless of whether the employee bears limited liability or full liability, and also regardless of the form of ownership of the organization. Compensation for damages is made regardless of bringing the employee to disciplinary, administrative or criminal liability for actions or inaction that caused damage to the employer.

60. The legal concept of labor protection, the content of the institute of labor protection according to the norms labor law.

Occupational safety is a system for preserving the health and life of an employee, which includes legal, socio-economic, organizational, technical, sanitary and hygienic, medical and preventive, rehabilitation and other measures. In the science of labor law, labor protection is considered in several aspects: 1.As a principle of labor law; 2. As an institution of labor law- this is a set of labor standards aimed at ensuring safety, maintaining the health and performance of workers in the process of work, as well as improving working conditions. Labor protection standards are contained both in acts of a centralized nature and in the LKN.

Along with the norms approved centrally, a significant role in labor protection is played by local rules and norms that take into account the specifics of individual employers - this is a section of the collective agreement, agreements on labor protection concluded by employers with trade union committees, instructions for safe work, etc. labor includes:

2. Norms establishing the obligations of the employer to create normal and safe working conditions for employees, as well as the obligations of employees to comply with labor protection requirements.

5. Norms establishing liability for violation of labor protection legislation.

3. labor protection as an element of labor relations. The right of an employee to work in conditions that meet the requirements of labor protection - this right includes the right to workplace, social insurance, refusal to perform work in case of danger at the workplace, etc. This right of workers corresponds to the obligations of the employer to ensure safe conditions and labor protection. Along with this, the Labor Code of the Russian Federation establishes the duties of an employee in the field of labor protection.

State administration of labor protection:

It is carried out by the Government of the Russian Federation directly or on its behalf by a federal body executive power that performs the functions of developing public policy and legal regulation in the sphere of labor (Ministry of Labor and Social Protection of the Russian Federation), as well as other federal authorities executive power within their powers. The state administration of labor protection on the territory of the constituent entities of the Russian Federation is carried out by federal executive authorities and executive authorities of the subjects in the field of labor protection within their powers. Separate powers for public administration labor protection can be transferred to LSG bodies. State examination of working conditions is carried out by the Federal Labor Inspectorate and the executive authorities of the constituent entities of the Russian Federation in the field of labor protection. Each employer carrying out production activities, the number of employees of which exceeds 50 people, creates a labor protection service or introduces the position of a labor protection specialist with appropriate training or experience in this field. The employer, the number of employees of which does not exceed 50 people, decides on the creation of a labor protection service or the introduction of the position of a labor protection specialist, taking into account the specifics of his production activities. If the employer does not have a labor protection service or a full-time labor protection specialist, their functions are carried out by the employer of the individual entrepreneur personally, the head of the organization, another employee authorized by the employer who provides services in the field of labor protection, attracted by the employer under a civil law contract. Organizations providing services in the field of labor protection are subject to mandatory accreditation. At the initiative of workers or their representative body, committees and commissions for labor protection are created. Their composition on a parity basis includes representatives of the employer and representatives trade union committee or other representative body of workers. Labor protection committees or commissions organize joint actions of the employer and the employee to ensure labor protection requirements - conducting inspections. Financing of measures to improve working conditions and labor protection is carried out at the expense of all types of budgets, extrabudgetary sources, financing can also be carried out at the expense of voluntary contributions from organizations and individuals. Financing of measures to improve labor protection conditions by employers is carried out in the amount of at least 0.2 percent of the cost of production of products, works, services. The employee does not bear the cost of financing measures to improve working conditions and labor protection.