What it is?
The main provisions on collective contracts and agreements, the approximate structure and content of the document are prescribed by law in the Labor Code (Articles 40 - 51). Despite this, employers often encounter difficulties when drafting them, since the regulatory documentation stipulates only the approximate form and content of the document, and there is no sample.
Let us turn to the definition of the concept of “collective agreement”:
From a legal perspective, a collective agreement is an act that regulates socio-economic relations in an organization , and its existence is a positive thing for all parties. Such an agreement helps resolve additional issues and also protects the interests of both parties.
If we turn to the question of whether a collective agreement is a source of labor law , then the answer is obvious - yes, it is. This is stated in Article 5 of the Labor Code of the Russian Federation.
Contents of documents and their types
Types of agreements that reflect the level and “coverage” of the scale of social and labor relations are characterized by the legislator as follows: a general agreement regulates issues of labor and payment at the federal level, interregional - on the scale of 2 (or more) regions of the Russian Federation, regional - this is the level of one subject of the Russian Federation, territorial regulation regulates working conditions, guarantees, benefits, compensation - on the territory of a separate municipal entity.
Industry and inter-industry agreements relate to the working conditions of the industry(s). It can be adopted at all of these levels, from the federal to the level of municipalities and territories.
All of these agreements can be concluded once in a tripartite manner. The tripartite procedure means the following: agreements that contain obligations involving the expenditure of budget funds are adopted with the participation of state authorities and local self-government. They are one of the parties to the agreement.
As an example, we can refer to the current General Agreement, adopted jointly by associations of trade unions, employers and the Government of the Russian Federation.
Labor legislation allows the conclusion of any other agreements between the parties at different levels of social interaction, if there is a need to resolve specific problems in the field of labor and employment.
Collective agreements are not divided by type, however, their content can be influenced by various factors: the direction and specifics of the business, the size of the enterprise, the applied remuneration system and the structural features of the company.
If we are talking about concluding a separate collective agreement in a separate unit, the manager instructs the head of the unit or another person to represent the interests of the administration in negotiations instead of himself (Article 33-1 of the Labor Code of the Russian Federation). The interests of the labor collective of this structure are protected by representatives (according to the general rules of Article 37, Part 2-5 of the Labor Code of the Russian Federation).
The content and structure of the collective agreement can be determined by the topic:
- forms and level of remuneration;
- compensation payments, benefits;
- dependence of the level of labor payments on the level of inflation and production indicators;
- distribution of work and rest time;
- other significant issues.
The agreements are basically similar to a collective agreement in content and structure. The document may stipulate:
- labor payments, primarily minimum wages and salaries, the procedure for increasing their level;
- compensation payments, guarantees;
- work and rest schedules;
- labor protection problems;
- conditions of employment and release of workers;
- other issues requiring consideration, in the opinion of interested parties.
Types and validity period
A common question among employers is what types of collective agreements are divided into. This is due to the fact that the concepts of “collective agreement” and “collective agreement” are confused .
The difference between these terms is that a collective agreement implies the regulation of labor relations not in a specific organization, but in an entire industry - naturally, collective agreements are classified into types according to their range of validity.
Since a collective agreement is a local act that operates exclusively within an enterprise, there are no types of it .
The contract comes into force from the day it is signed and applies to each employee, including those who were employed after its conclusion. The document is concluded for a maximum period of no more than three years; at the end of this period it can be concluded again or extended for another three years.
An interesting point is that the law does not regulate how many times an existing contract can be extended , so it is permissible to do this ad infinitum.
From the moment the contract is concluded, the parties are equally responsible for violation of its terms . Responsibility is provided for by law and ranges from warning to fine and dismissal, depending on the violations committed.
Dismissal for failure to perform official duties may also occur. Read more about this here.
The concept of a collective agreement
The collective agreement is drawn up by interested parties - employees, employers.
This is a document, a legal act regulating social and labor relations in the company of an individual entrepreneur.
The parties to the agreement are employees and employers, between whom certain rights and obligations are established.
The concept of a collective agreement also exists in the global labor arena.
Thus, from the recommendations of the International Labor Organization, a collective agreement is understood as any written agreement regarding working conditions and employment, concluded, on the one hand, between an entrepreneur, a group of entrepreneurs or one or more organizations of employers and, on the other hand, one or more representative organizations of workers, in their absence, by representatives of the workers themselves, duly elected and authorized in accordance with the laws of the country.
In the labor legislation of our country, there is a definition of a collective agreement - this is a legal act that regulates social and labor relations in an organization or an individual entrepreneur and is concluded by employees and the employer represented by their representatives (Article 40 of the Labor Code of the Russian Federation).
In practice, a collective agreement is understood as a local normative act, which is a misconception.
The legislator initially established clear differences between a collective agreement and a local regulatory act.
Content and structure
Although Article 41 of the Labor Code provides a list of the main issues that can be provided for in this document, there is no final list. What exactly will be specified in the contract is determined by the parties independently. It usually contains information on issues such as:
- Issues related to remuneration;
- Amount and procedure for additional payments;
- Conditions under which benefits may be provided to employees;
- Issues related to employee training, recertification;
- Issues related to vacations, as well as work schedules;
- Issues related to labor protection;
- Other questions.
It should be noted that the conditions specified in the contract cannot contradict or violate the norms of labor legislation and other documents.
What is it needed for?
Both parties receive a lot of benefits when signing an agreement. The obvious advantages of having an agreement at the enterprise are:
- The ability for the employer to establish benefits for employees independently;
- A colossal reduction in document flow in the HR department;
- Justification of costs associated with the costs of maintaining employees.
It is widely believed that a collective agreement is signed solely for the benefit of employees, but this is not so - the employer also benefits by concluding it.
Watch a useful video about concluding collective agreements:
Decor
The registration of a collective agreement must be carried out according to uniform rules .
An example of a collective agreement can be downloaded here.
Title page
In accordance with the rules of office work, the sheets of the collective agreement must be stitched and numbered . The title page usually contains general information:
- Full name of the enterprise;
- Document's name;
- Full name, signatures of the persons who entered into the agreement;
- Prints;
- Mark of the registering authority indicating the number and date of registration.
Sample title page:
Applications
Issues that are voluminous and require strict regulations are formalized as appendices to the agreement. These include:
- VTR Rules;
- Regulations on bonuses and remuneration;
- Labor safety instructions;
- The procedure for conducting SOUT.
Depending on the specifics of the organization, other documents may be drawn up as attachments at the discretion of the parties .
Extract
If necessary, extracts can be made from the collective agreement for submission to higher authorities , etc. When drawing up an extract, the necessary part of the contract is copied, on which the details indicated on the title page are duplicated (excluding signatures). In addition, the extract sheets are stitched, numbered and certified by the signature of an authorized employee.
Provided that the collective agreement is drawn up correctly and in accordance with the requirements of labor legislation, due to its presence it is possible to significantly optimize the work with documentation and clarify the rights and obligations of the parties .
If you cannot decide whether a collective agreement is needed in an LLC, keep in mind that responsible employers prefer to have such a document in the organization, although they are not required to do so . If there is no collective agreement at the enterprise, all activities are carried out within the framework of current legislation.
Article 40 of the Labor Code of the Russian Federation. Collective Agreement (current version)
1. The definition of a collective agreement given in the commented article corresponds to the provisions of international documents in the field of labor, in particular ILO Recommendation No. 91 “On Collective Agreements” (1951).
2. The collective agreement is a normative agreement, i.e. an act that is concluded in a contractual manner, but along with specific obligations contains rules of law.
3. In the definition given in Part 1 of Art. 40, emphasizes the normative nature of this legal act. Its main task is to regulate social and labor relations.
In the context of the norm under consideration, social-labor relations are understood as social relations included in the subject of labor law (Article 1 of the Labor Code), as well as those related to social services for workers in a broad sense (additional social insurance, medical care, housing, etc. ).
4. Along with regulatory provisions, the collective agreement contains an obligation part - specific obligations of the employer to ensure normal working conditions (see commentary to Article 41).
5. A collective agreement is concluded by the employer - an organization or an individual entrepreneur. Employers who are individuals who are not entrepreneurs do not enter into collective agreements.
6. The Labor Code establishes a model of a single collective agreement: in an organization (an individual entrepreneur), regardless of the number of representative bodies (trade unions and trade union organizations), one collective agreement is concluded, which applies to all employees of a given employer. This approach fully complies with international standards in the field of social partnership and makes it possible to ensure equal working conditions for all workers in the organization, regardless of membership in trade unions and other circumstances related to the representation of the interests of workers.
7. If agreement is not reached on certain provisions of the draft collective agreement, within three months from the start of collective negotiations, the parties must sign a collective agreement on the agreed terms. At the same time, a protocol of disagreements is drawn up, recording the provisions on which the parties could not reach agreement.
Obviously, this rule was established in order to clearly distinguish between the agreed and non-agreed terms of the collective agreement and not delay its signing (and, consequently, the provision to employees of the benefits, advantages, and standards establishing working conditions provided for by it).
8. Unsettled disagreements after the signing of a collective agreement may be the subject of further negotiations or a collective labor dispute.
The issue of choosing a method for resolving disagreements should be decided by agreement of the parties. If the parties have not reached an agreement or the employer (his representatives) refuses to continue collective negotiations, it is necessary to proceed to conciliation procedures.
9. A collective agreement can be concluded both at the level of the organization as a whole and at the level of separate structural divisions. It must be remembered that in any case the employer is a party to the collective agreement, i.e. organization.
In practice, there are three possible combinations of collective agreements concluded with one employer:
— one collective agreement is concluded, which is valid for all employees of the organization (Article 43 of the Labor Code), incl. employees of separate structural divisions;
— one collective agreement is concluded, which is valid for all employees of the organization, and collective agreements in separate structural divisions;
— collective agreements are concluded in separate structural units.
It is impossible to conclude a collective agreement separately for the central office of the organization, since it does not have the characteristics of a separate unit.
10. The need to conclude a collective agreement in a separate structural unit arises due to the fact that it is located outside the location of the legal entity, has features in the organization of labor, etc.
Branches and representative offices are recognized as such divisions (Article 55 of the Civil Code of the Russian Federation); Civil legislation does not indicate other separate structural divisions. The Labor Code also does not contain any signs of such a division. In this regard, it is often believed that in the field of labor relations the definition of a separate unit given in Art. 11 of the Tax Code of the Russian Federation (any division territorially isolated from the organization, at the location of which stationary workplaces are equipped).
The use of criteria developed by tax legislation in labor law seems erroneous, since Art. 11 of the Tax Code of the Russian Federation emphasizes that the concepts and terms used in the Tax Code of the Russian Federation have industry-specific meaning and are applied “for the purposes of this Code.”
Labor legislation must either develop its own idea of a separate structural unit (its characteristics), which would take into account the specifics of regulating labor and other relations directly related to it, or be based on civil law ideas, because norms of civil legislation on the legal status of legal entities have intersectoral significance (in accordance with Article 2 of the Civil Code of the Russian Federation, civil legislation determines the legal status of participants in civil transactions, including legal entities).
11. Part 5 of the commented article determined the representatives of the employer and employees when concluding a collective agreement in a separate structural unit. The representative of the employer can be not only the head of a branch or representative office, but also another person, for example, a deputy director (general director), or a member of the board. The employer's representative must be vested with appropriate powers, which is reflected in the order, power of attorney, or employment contract concluded with him.
Employee representatives are determined according to general rules. In accordance with them (Articles 29 - 31 of the Labor Code), primary trade union organizations operating in a separate structural unit, as well as other representatives of workers created in the absence or small number of a trade union organization, can participate in collective negotiations on behalf of workers.
12. The collective agreement of a separate structural unit should not contain norms that worsen the position of employees in comparison with the collective agreement of the entire organization.
13. In Moscow, organizations that have concluded collective agreements, on the recommendation of the Moscow Tripartite Commission and other social partnership bodies, other things being equal, have a preferential right to consideration by the Moscow government, sectoral and functional and territorial executive authorities of the city of Moscow, city associations of employers and trade union associations issues of ensuring the social and economic activities of enterprises, social protection of workers (Article 16 of the Moscow Law of November 11, 2009 N 4 “On social partnership in the city of Moscow”).
Comment source:
Rep. ed. Yu.P. Orlovsky “COMMENTARY ON THE LABOR CODE OF THE RUSSIAN FEDERATION”, 6th edition ACTUALIZATION
ORLOVSKY Y.P., CHIKANOVA L.A., NURTDINOVA A.F., KORSHUNOVA T.YU., SEREGINA L.V., GAVRILINA A.K., BOCHARNIKOVA M.A., VINOGRADOVA Z.D., 2014
