The procedure for applying and a sample application to the labor dispute commission. §4

23.03.2018, 14:34

How do you file an appeal to the labor dispute commission? Current legislation provides for a collegial body that has the authority to resolve labor disputes arising between the parties labor relations: employer and employee, without resorting to judicial procedures. This is the Labor Dispute Commission - CTS. All necessary information You will find information about applying to the labor dispute commission and examples in the article.

Disputes happen

From time to time, employers (organizations and individual entrepreneurs) become participants in labor disputes: conflicts regarding the application of laws and other regulations governing the labor sphere. In most cases, any misunderstanding can be resolved through direct negotiations between the employee and the administration. However, it happens that it was not possible to reach an amicable agreement. In this case, the employee can go to court.

However, labor legislation provides for another way to resolve the conflict - appealing to the labor dispute commission. Internet forums are full of conflicting information about this method resolution of labor conflict. Let’s clarify the situation regarding the Labor Dispute Commission as much as possible.

The Labor Commission, like the courts of general jurisdiction, is a body with state authority to consider individual labor disputes (Article 382 of the Labor Code of the Russian Federation). An appeal to the labor dispute commission (for a sample application to the Labor Dispute Committee, see the article “”) is the first step in resolving the conflict.

Labor relations are an agreement between an employee and an employer (organization or individual entrepreneur) on performing work specified in the contract for a fee. During work, the employee is under the management and control of the employer, obeys the internal labor regulations and works in the interests of the employer (Article 15 of the Labor Code of the Russian Federation).

Contact us on time

When applying to a labor dispute commission, deadlines play an important role. The fact is that the period established by labor legislation for applying to a labor dispute commission cannot exceed three months from the day the employee learned about the violation of his legal rights or should have learned about it.

In practice, circumstances may arise as a result of which an employee missed the deadline for filing a complaint with the labor dispute commission. If the reason for the delay is valid, then the CCC can reinstate the missed deadline and resolve the dispute on its merits. Thus, the deadline for filing a complaint with the labor dispute commission plays an important role (Article 386 of the Labor Code of the Russian Federation).

The solution is mandatory for everyone

The result of consideration of a labor dispute is the corresponding decision of the commission. Compliance with the decisions of the labor dispute commission is mandatory for the company and the employee. Of course, this rule only applies if the administration or employee has not appealed the decision. If this does not happen, then, in general, the decision of the Labor Dispute Commission (CLC) must be executed. For example, an appeal to the labor dispute commission for an illegal salary reduction may lead to its revision.

In practice, non-execution of the decision of the labor dispute commission occurs. In this case, the CTS issues to the administration of the organization (employee) a certificate that has the force of a writ of execution. Based on this document, the court (bailiff) enforces the decision of the labor dispute commission.

Thus, an appeal to the labor dispute commission and the labor safety inspectorate is a guarantee of the protection of the violated rights of the employee.

An employee may appeal to the labor dispute commission within three months from the day he learned or should have learned about a violation of his rights.

If the established deadline is missed for valid reasons, the labor dispute commission may restore it and resolve the dispute on the merits.

Comments to Art. 386 Labor Code of the Russian Federation

1. Only an employee can contact the CTS within the time period specified in Art. 386 TK. The employer is not given such a right.

2. The period for applying to the CCC is calculated from the moment when the employee learned or should have learned about the violation of his labor rights, therefore it begins from the next day after the employee became aware of the violation of his rights. The period is calculated in calendar days, it also includes non-working days. The day the right of claim arises is not counted among the days of the period.

An employee may apply to the CTS with a request to reinstate the missed deadline if it was missed for a valid reason. The commission considers this application of the employee with his participation. Having recognized the reason for missing the deadline as valid, the CCC reinstates the deadline and at the same meeting considers the labor dispute on its merits.

If the CCC does not restore the deadline, then the labor dispute is removed from consideration.

3. The validity of the employee’s demands is verified when considering the case on the merits in the CCC.

An employee’s application to the CCC is subject to mandatory registration by the secretary of the commission in a special journal, which also records the time frame for resolving the dispute. Such an application is not accepted for consideration by the CCC if there is a decision of the CCC or another jurisdictional body that has entered into legal force, made on a dispute between the same parties, on the same subject and on the same grounds.

In Part 1 of Art. 386 of the Labor Code of the Russian Federation states that an employee can appeal to the labor dispute commission within three months from the day when he learned or should have learned about a violation of his rights. However, the CCC does not have the authority to refuse to accept an employee’s application on the grounds that he missed the deadline for applying to the commission to protect his rights.

As has been repeatedly noted, the implementation of labor law norms occurs according to the rules of civil procedural legislation. In paragraph 4 of Art. 1 of the Code of Civil Procedure of the Russian Federation enshrines the principle of procedural analogy, which involves the use of the norms of civil procedural legislation in regulating the activities of the CCC by analogy in the part not regulated by labor legislation. Therefore, possible cases of refusal to accept an application from a CTS employee should be determined on the basis of Art. 134 Code of Civil Procedure of the Russian Federation. From this article it follows that the CTS has the right to refuse to accept an employee’s application in following cases: 1) the CTS lacks the authority to consider a received application, the resolution of which falls within the competence of other bodies, for example, an employee applied to the CTS structural unit on an issue that can only be resolved by the head of the organization, and not the structural unit; 2) the presence of a court decision that has entered into legal force, state inspection labor or CCC in a dispute between the same parties, about the same subject and on the same grounds, but the presence of a decision of the CCC of a structural unit does not prevent the organization from applying to the CCC; 3) the presence in the CCC proceedings of a similar statement regarding a dispute between the same parties, on the same subject and on the same grounds, however, the presence of such a statement in the CCC of a structural unit does not prevent an appeal to the organization’s CCC, and the presence of the specified application in the organization’s CCC does not prevent an appeal in the CTS of a structural unit; 4) filing an application by an incompetent person, which is confirmed exclusively by a court decision that has entered into legal force declaring the citizen incompetent. This list of grounds for refusing to accept an application from the CCC is exhaustive. Missing a deadline is not considered one of these grounds. Consequently, the CTS is obliged to accept the employee’s application regardless of the timing of the violation of his rights.

In Part 2 of Art. 386 of the Labor Code of the Russian Federation states that if, for good reasons, the established deadline is missed, the CCC can restore it and resolve the dispute on the merits. From which it follows that missing the deadline for applying to the CCC for protection of a violated right may become grounds for refusal to satisfy the employee’s claims.

In accordance with Part 1 of Art. 12, part 6 art. 152 Code of Civil Procedure of the Russian Federation, Part 3, Clause 5 of the Resolution of the Plenum Supreme Court RF No. 2 of March 17, 2004 “On the application by courts Russian Federation Labor Code Russian Federation" missing a deadline as a basis for refusing to satisfy the claims stated by the employee can be applied by the CCC only if the authorized representative of the employer has submitted a petition to refuse to satisfy the employee's demands due to missing the deadline for applying to the CCC. In accordance with paragraph. 1, Article 56 of the Code of Civil Procedure of the Russian Federation, each party to an individual labor dispute is obliged to prove the circumstances to which it refers. Therefore, in the presence of such a petition, it is the representatives of the employer who are obliged to prove the deadline for the employee to apply to the CCC.

In Part 2 of Art. 14 of the Labor Code of the Russian Federation establishes the rule that the period of time associated with the termination of rights and obligations, in particular for satisfying the requirements of a CTS employee, begins on the next calendar day after the date on which the end of the employment relationship is determined. From which it follows that the period for applying to the CCC begins on the day after calendar date when the employee learned or should have learned about a violation of his right, since from that day the relationship related to the violation of the employee’s labor right is terminated, which is the basis for the employee to apply for protection of the violated right in the manner prescribed by law. In this connection, representatives of the employer who filed a petition to refuse to satisfy the employee’s claims due to missing the deadline for applying to the CCC must prove one of the following legally significant circumstances, enshrined in Part 2 of Art. 386 Labor Code of the Russian Federation. Firstly, the employee receives information about a violation of rights. Representatives of the employer are obliged to familiarize the employee with all orders (instructions) concerning him labor activity, in writing. The absence of written evidence that the employee is familiar with the actions (inactions) of the employer deprives his representatives of the right to refer to witness testimony in the event of a dispute. Therefore, the absence of written documents about the employee’s familiarization with the order (instruction) of the authorized representative of the employer, which resulted in a violation of his rights, does not allow proving that the employee has information about such a violation. In such a situation, the period for applying to the CCC should be calculated from the moment indicated by the employee, that is, from the date indicated by him of receipt of information about the violation of the right. Secondly, the employer’s representatives, in order to satisfy the petition to dismiss the employee’s claim due to missing the deadline for applying to the CCC, can prove the circumstances due to which the employee should have learned about the violation of his right. For example, when transferring an employee from one structural unit to another, when a certain structural unit is indicated in employment contract employee, he must learn about the violation of his rights from the moment of the actual transfer. If an employee worked in a new structural unit for three months and did not appeal to the CTS the employer’s actions regarding his transfer, then the period for applying to the CTS should be calculated from the moment the employee was actually transferred to another structural unit, regardless of when he was familiarized with the order (instruction ) employer about the transfer. Thus, the circumstances, the proof of which allows us to conclude that the employee should have known about the violation of his right, are the actions of the employer’s representatives that led to a change in the employee’s working conditions, which could not have gone unnoticed by him. In other cases, for example, when depriving an employee of a bonus, the employer must prove that the employee has familiarized himself with the documents on the basis of which the corresponding payments were not made to him. In such a situation, written evidence is acceptable, in particular an order (instruction) of an authorized representative of the employer, which bears the signature of the employee who applied for protection to the CCC.

In Part 2 of Art. 386 of the Labor Code of the Russian Federation states that if a deadline is missed for valid reasons, the CCC can restore it. The question of the validity of the reasons for missing a deadline can be the subject of consideration at a meeting of the CCC only if the employer has filed a petition to refuse to satisfy the employee’s claim due to missing the deadline for applying to the CCC, and also circumstances have been proven indicating that the deadline for applying to the CCC has been missed. KTS. In accordance with Art. 56 Code of Civil Procedure of the Russian Federation availability good reasons Missing the deadline for applying to the CTS must be proven by the employee who missed the specified deadline. The legislation does not define valid reasons for missing the deadline for applying to the CCC. In this connection, based on what is enshrined in Part 4 of Art. 1 of the Code of Civil Procedure of the Russian Federation, the principle of procedural analogy, the CCC may indicate as valid any reasons for missing a deadline, including those available in certain regulatory legal acts And judicial practice. In Part 3 of Art. 5 of the Law of the Russian Federation “On appealing to the court of actions and decisions that violate the rights and freedoms of citizens” dated April 27, 1993 (with subsequent amendments and additions) the number of valid reasons for missing deadlines for the protection of human and civil rights and freedoms includes any circumstances that make it difficult to obtain information about appealed actions (decisions) and their consequences. Thus, the CCC can recognize as valid any reasons for an employee missing the deadline to apply for protection of a violated right, including a lack of legal knowledge that does not allow one to have information about the consequences of a violation of rights and freedoms. Part 5 of paragraph 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” states that circumstances can be considered as valid reasons for missing the deadline for applying for protection of a violated right that prevented the employee from promptly applying for resolution of an individual labor dispute, for example: the employee’s illness, being on a business trip, the impossibility of going to court due to force majeure, the need to care for seriously ill family members. The valid reasons for missing the deadline for an employee to defend a violated right listed in legislation and judicial practice must be taken into account as such. However, the CCC may recognize as valid any other reasons for an employee missing the deadline for filing an application for protection of a violated right. For example, an organization should recognize an appeal to the CTS of a structural unit as a valid reason for missing the deadline for applying to the CTS, since in this case the employee promptly exercises the right to apply to the CTS, which, at his choice, can be exercised either by contacting the CTS of the structural unit or and by contacting the organization’s CTS. Passing one of these paths cannot be considered as unjust cause when following a different route, because the employee took advantage of his right. Moreover, an appeal to the CTS of a structural unit should be considered as a fact that interrupts the deadline established for applying to the CTS. Therefore, when an employee applies to the organization’s CTS after consideration of his application to the CTS of a structural unit, where he applied in a timely manner, the conclusion about missing the deadline for applying to the CTS does not comply with the requirements of the law, since the employee exercised his right in a timely manner. Thus, the CCC may recognize as valid any reasons for an employee missing the deadline to apply to the commission.

In Part 2 of Art. 386 of the Labor Code of the Russian Federation states that if there are good reasons for missing the deadline for applying to the CCC, it can restore this deadline and consider the individual labor dispute on its merits.

In this connection, the conclusion suggests itself that the presence of valid reasons for missing the deadline for applying for protection in the CCC entails the emergence of an obligation to consider the claims submitted to the commission on the merits. Whereas the absence of such reasons, in the presence of a corresponding petition from the employer’s representative, allows the CCC to refuse to consider the stated claims on the merits. Although the refusal to consider the claims submitted by the employee to the CCC after missing the deadline established by law is contrary to the norms of higher legal force.

In accordance with Art. 18 of the Constitution of the Russian Federation, the rights and freedoms of man and citizen are directly applicable; they determine the meaning of the application of laws, including the CCC. Refusal to consider the claims submitted by an employee to the CTS due to missing a deadline is contrary to Art. 18 of the Constitution of the Russian Federation, since in this case the purpose of the activity is to check the reasons for missing the deadline for applying for protection of a violated right, and not to apply the norms that guarantee the rights and freedoms of man and citizen. Therefore, the refusal of the CTS to consider the claims made by the employee on the merits with reference to Art. 386 of the Labor Code of the Russian Federation allows us to raise the question of the constitutionality of this norm in Constitutional Court RF. However, even before its consideration, the CTS is not deprived of its rights on the basis of Art. 18 of the Constitution of the Russian Federation, which has the highest legal force, give a legal assessment to the requirements stated by the employee and in the absence of valid reasons for missing the deadline for applying to the CCC. Moreover, in this case, the CCC may state a violation of the employee’s rights, but refuse to reinstate him due to missing the deadline for applying for protection. This decision will have legal significance. Firstly, it can be used by an employee to restore a violated right administratively, that is, by contacting government bodies supervision of compliance with labor laws or in higher authority or to higher-ups officials who are obliged to restore the violated right regardless of the time period that has passed since the violation. In this connection, the decision of the CCC, which refused to satisfy the stated requirements due to missing the deadline for applying for protection with a statement of the fact of violation of the employee’s rights, becomes the basis for their implementation in an administrative manner. Secondly, the decision of the CCC to refuse to satisfy the claims made by the employee due to missing a deadline, which contains in its content the established fact of violation of the employee’s labor rights, can be used to restore them in judicial procedure. After the CTS, the employee can go to court, which has the right to recognize the reasons for missing the deadline for applying for judicial protection as valid. In this connection, the decision of the CCC becomes evidence of a violation of the employee’s labor rights and can also serve as the basis for their implementation in court.

Refusal to consider an employee’s claims in the CCC due to missing a deadline means that they do not become the subject of consideration at all by the body endowed with such right by the legislator, that is, the one carrying out government functions. Whereas Art. 33 of the Constitution of the Russian Federation guarantees the right to individual appeals, including the resolution of individual labor conflicts, to state bodies and local governments. The purpose of such appeals is to consider them on their merits, as well as to receive qualified assistance from the citizen. The state has assigned the CCC the function of considering individual labor disputes, acting as an arbitration court created by the parties to labor relations. In this connection, the CTS has the obligation to give a legal assessment of the requirements stated by the employee, regardless of the period of violation of his rights. After which the employee can use the CTS decision at his own discretion. Consequently, constitutional norms oblige the CCC to give a legal assessment of the requirements stated by the employee that fall within its competence, regardless of the timing of the violation of his rights.

Textbook "Labor Law of Russia" Mironov V.I.

Personnel records management and Labor law

When labor disputes arise in an organization, the labor dispute commission comes to the rescue. What powers are vested in the members of this association, what is the deadline for contacting the labor dispute commission and how should it exercise its powers? We will consider these and other questions in more detail.

Definition

The labor dispute commission is understood as the main body that is designed to resolve individual labor disputes at enterprises, organizations and companies.

The creation of the commission, the number of its members and candidates in general should be decided at a general meeting of the team. The presence of a commission is not mandatory, but is useful, since this association actively protects the rights and interests of employees, using all possible aspects of the law.

The competence of the labor dispute commission is quite extensive, therefore the decisions made by its members are subject to immediate execution, and it is not possible to discuss them with management.

Art. 384 of the Labor Code of the Russian Federation regulates the creation of a body for labor disputes. Education occurs on the initiative of the work team or the head of the organization. The head and representative body of employees who have received a proposal to create a commission are required to send their representatives to this association within ten days. The members of the commission are elected at the general meeting.

The commission itself elects a chairman, his deputy and a secretary from among its personnel.

Authority

As mentioned earlier, the commission has fairly broad powers. Her work cannot be managed by other structures, but at the same time her competence does not extend beyond the company.

In addition to forming effective relationships within the team, commission members must resolve issues that arise between managers and former employees. This process is based on situations where disputes arise due to the imposition of disciplinary sanctions or when certain violations have been committed.

Those persons who were not accepted into the organization without a reasoned refusal can also apply to the commission.

The powers of the commission include resolving the following issues:

on the collection of wages or additional payments;
on the fulfillment of the terms of the contract;
about payment overtime and travel allowances;
on the imposition of penalties;
other issues not resolved by agreement of the parties.

But there are issues that do not fall within the competence of the commission:

return to office;
restoration after termination of the contract;
payments upon illegal dismissal or demotion.

All of the above is already being sorted out in the courts. But employees have the right to appeal to the commission with similar questions before legal proceedings.

Application deadlines

There is a certain period during which employees have the right to address their questions to the commission.

The deadline for filing a complaint with the labor dispute commission is 90 days from the moment the conflict arises. This period provides for resolving the issue independently or, if it is impossible to resolve it, contact the commission.

In the event that an employee addresses the members of the commission on an issue that lies outside their competence before the trial, this must be done immediately after the appearance conflict situation.

Time limits for filing a lawsuit in labor court, in accordance with Part 1 of Art. 392 of the Labor Code of the Russian Federation, also amount to three months, and if the matter concerns dismissal, then you can apply to the courts within a month from the date of receipt of the work book.

Terms of consideration

10 days are allotted for consideration of the application. If an employee is denied consideration, then the commission members must issue a reasoned opinion on the reasons for this refusal. You can go to court with this document, as it confirms a pre-trial attempt to resolve the dispute.

If a job application is accepted for consideration, no more than a month is allotted.

Operating procedure

So, the deadline for applying to the labor dispute commission is determined by a three-month period from the date the conflict situation arises. The work of the commission takes place at its meetings, which are convened as needed.

The date of the meeting must be set in advance so that all parties to the conflict can attend the resolution of the issue. At the meeting, in addition to the commission members, the head of the organization and the injured party with their representative must be present. The secretary must record everything that happens. The meeting is chaired by the chairman of the commission, who gives the parties the opportunity to speak out and defend their personal position. Next, those persons who can introduce certain nuances into the conflict that have arisen can speak. After hearing all parties, the conflict situation is put to a vote to make a decision.

If a decision is made, it must be implemented within three days. This is what the consideration of labor disputes by labor dispute commissions looks like. The order of operation of the organ consists of several main stages:

Acceptance of the application and its consideration.
Organization of a procedure for considering a conflict situation.
Decision making, control over its implementation.

The decision made by the commission:

not disputed or discussed;
can only be appealed in court;
is operative in nature;
must be fulfilled.

Appeal

An appeal to the commission occurs on the basis of a conflict situation. The application is considered an appeal to resolve the dispute. A member of the commission must endorse the submitted document and submit it to the chairman.

The application must be written to the chairman. Further, it must indicate the full details of the employee. The document itself can be drawn up in free form or on the organization’s letterhead. It all depends on local requirements certain company. The universal conditions for drawing up an application include:

detailed description of the conflict situation;
possible conditions under which the situation worsened;
justification of the rightness of the injured party;
a list of measures taken that could smooth out or resolve the situation;
clarification of the stage at which the dispute reached a dead end;
request for resolution of a conflict situation;
indication of the date and signature of the submitting application.

If the commission made motivated refusal in considering the application, the employee can go to court. The deadlines for filing a claim with the labor court and the procedure for reinstatement in case of missing them are determined by a period of three months, if this general questions, and a month if the issue concerns unfair dismissal.

New edition of Art. 386 Labor Code of the Russian Federation

An employee may appeal to the labor dispute commission within three months from the day he learned or should have learned about a violation of his rights.

If the established deadline is missed for valid reasons, the labor dispute commission may restore it and resolve the dispute on the merits.

Commentary on Article 386 of the Labor Code of the Russian Federation

If an employee decides to defend his rights in the labor dispute commission, then he is given three months from the day he learned about the violation of his rights to apply there. The employee’s appeal must be registered with the commission. From this moment the ten-day period allotted to the commission to consider the dispute begins to count.

The dispute is considered directly in the presence of the employee who filed the application or his authorized representative. Consideration of a dispute in the absence of an employee or his representative is possible only on the basis of his written application. But if the applicant or his representative does not appear at the meeting, then the consideration of the dispute will be postponed. In case of a second failure to appear without valid reasons, the commission may decide to withdraw the issue from consideration. However, this does not deprive the employee of the right to re-submit an application for consideration of a labor dispute.

Another comment on Art. 386 Labor Code of the Russian Federation

1. An employee may apply to the CCC for dispute resolution within three months from the moment he learned or should have learned of a violation of his rights. Consequently, only the employee, but not the employer, has the right to appeal to the commission.

2. If an employee misses the deadline established for filing a complaint with the CCC, it does not mean that it is impossible to consider the dispute. It all depends on the reason for missing the deadline and on the commission’s assessment of this fact.

If the CTS establishes that the deadline for filing a complaint with the commission has been missed, the burden of proving the valid reasons for missing it lies with the employee. If the reason for the omission is recognized as valid, the CCC has the right, having restored it, to consider the dispute on the merits.

If the CCC does not recognize the reason for missing a deadline as valid and refuses the employee to consider the dispute, the latter has the right to go to court.