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Section 15. Science of law
Prizhennikova Alena Nikolaevna, assistant professor of the department of "Civil and arbitral process" candidate of jurisprudence, associate professor FSEBI of HE Financial university under the Government of the
Russian Federation Moscow, Russia E-mail: [email protected]
Conceptual problems of specialized courts system formation (case study labour justice)
Abstract: In the Concept of long-term social-economic strategic development of the Russian federation for the period until 2020, which was ratified by the edict of the Government of the Russian Federation dated from 17 November 2008 № 1662-p in order to increase the effectiveness of political and legal institutions and to provide the enforcement of the Russian Federation legislation, the judicial reform was named. This reform provides efficiency and justice of the court decisions. In this regard the matter of creation of specialized courts, which would improve the quality of case consideration, is broadly discussed.
Many options of the most acceptable judicial system structure are offered. Case study labour justice the necessity of specialized labour courts establishment and foundation in the Russian Federation is considered. The reason is the huge amount of labour relations cases and the specificity of the court procedure.
On the basis of procedural peculiarities of labour disputes resolution and settlement in the Russian Federation research and analysis of the foreign experience the author offers a concept of labour justice formation in the Russian Federation and formulates the definition of a specialized court.
Keywords: specialized courts; judicial system; system ofjustice; specialization ofjudges; labour justice; labour courts; labour relations; individual labour disputes; collective labour disputes; labour procedural law.
From the beginning of the nineties of the twentieth cen- Thus specialized court is a government body of judicial tury the establishment of specialized courts deciding financial, branch of power administering justice while resolving dislabour, patent, tax, administrative, family and other types of putes and considering triable concrete categories of cases undisputes [2, 1; 5; 8, 44-46; 10, 9; 12; 13] was continually of- der civil, administrative and criminal proceedings. fered in legal literature. The specialization is possible under following characteris-The resolution of Federation of Independent Trade tics: object; subject structure of the participants. But from our Unions of Russia General Assembly Executive committee dat- point of view the primary criteria of the specialization is the ed from 17.09.1997 № 6-3 "On measures for reinforcement subject structure of the matter in controversy parties. of social and labour employees' rights protection" entails the Foreign experience shows that in practice specialized preparation to the establishment of labour procedural legisla- labour justice is necessary as it encourages the effective la-tion and formation of specialized labour courts. In accordance bour disputes resolution. Labour courts were created in many with the article of the Federal Constitutional Law dated from countries but it is necessary to highlight the countries where 31.12.1996 № 1-FKZ «On the Court System of the Russian regular courts are not involved into considering labour rela-Federation» stipulates constitution of specialized courts. tions disputes. These are, for example, Germany, Israel, France, Many different opinions are expressed in the scientific Finland. Countries which have special judicial assemblies in literature on the matter of specialized courts, judges' special- regular courts are Italy, Japan, the Netherlands. Employment ization and the optimal judicial organization. tribunals operate in Great Britain and the USA. Tribunal sys-It seems that the courts' specialization is stipulated a va- tem encourages the fast and effective disputes consideration. riety of causes: firstly, their establishment would inspire the In many countries labour court decisions are one of the reinforcement of the judicial system; secondly, consideration labour law sources [10, 96].
and settlement of a concrete category of cases provides higher Article 37 of the Constitution (passed by nation-wide vot-
professionalism of judges; thirdly, special jurisdiction courts ing and dated from 12.12.1993) human and citizen right to in-
provide the promptness of court proceedings. dividual and collective labour disputes with use of stated in
the federal law ways of their settlement including the right to strike.
Labour legislation does not give a definition of "a labour dispute". It only divides it into two types — individual and collective — and settles the rules of its resolution. We suppose that labour dispute is a conflict between employee and employer on the matters of labour conditions appliance which are stated by labour legislation norms, by collective and labour contracts which were not considered by employee and employer.
There is a variety of discussions on the matter of reasons and conditions of labour disputes appearance [1, 176; 3, 182-184; 14, 14]. We suppose that the circumstances causing conflicts between labour relations subjects connected with appliance, interpretation or ignorance or incorrect interpretation of a legal act, local normative act, labour contract should be treated as reasons to labour disputes appearance. Labour disputes appearance conditions become concrete reasons in a labour dispute.
Thus we can conclude that juridical facts, caused conflicts between labour relations subjects, in other words any violations of employee's rights and his obligations to the employer should be understood as reasons to labour disputes appearance.
Thus when the parties do not perform labour rights and obligations, stipulated by an employment agreement, conflict occurrence is possible.
Let us consider a labour dispute and demonstrate the ways of its solution. For instance, an employer does not timely pay salary or illegitimately withholds some part of salary. In accordance with the employment and labour laws, an employment agreement has a refundable character. An employee performs work in a certain labour function at a charge. One of the main obligations of an employer in accordance with the article 56 of the Labour Code of the Russian Federation is the obligation to pay salary to an employee timely and in full. The Constitution of the Russian Federation (art. 37) and Labour Code of the Russian Federation (art. 21) state that an employee is guaranteed a right to receive salary within the legal period.
In accordance with the article 236 of the Labour Code of the Russian Federation, when an employer violates the term of payment of salary, vacation compensation, dismissal payments and (or) other payments, due to an employee, it must pay these with interest (monetary compensation) at the amount not less than one three hundredth of the active official bank rate of the Bank of Russia for the amounts not paid in time for each day of delay, starting from the day next to the stipulated period of payment till the day of actual pay off inclusive.
Pecuniary compensation in accordance with the 236 of the Labour Code of the Russian Federation is accrued on the amounts due to an employee, i. e. the amounts, received after withholding of tax on individual income (hereinafter referred to as TIPI). The compensation paid is an income that is exempt from taxation in accordance with the p. 3 of the article
217 of the Tax Code of the Russian Federation. If the said compensation exceeds the minimal amount, stipulated by
the Labour Code of the Russian Federation, the amount of excess is also exempt from TIPI in accordance with the letter of Ministry of Finance of Russia dated 28.11.2008 № 03-0405-01/450.
When salary is withheld, an employee may use his or her right to self-defense (suspend work). This right is provided by Resolution of Plenum of Supreme Court of the Russian Federation dated 17.03.2004 "On application by courts of the Russian Federation of Labour code of the Russian Federation". The labour Code of the Russian federation states that an employee may suspend work in the case of delay of salary payment for more than fifteen days for the entire period until payment of the withheld sum, except for the cases, when such suspension is not allowed (art 142 of the Labour Code of the Russian Federation).
An employer may be subjected to administrative or criminal liability for failure of timely payment of salary.
Individual disputes are resolved by labour disputes commissions and courts. Pursuant to statement 1 part 1 art.22 of Civil procedure code of the Russian Federation and articles 382. 391 of Labour code of the Russian Federation cases on disputes which occurred from labour relations are subject to regular courts.
In accordance with Labour code of the Russian Federation courts directly consider individual labour disputes upon application of:
1) Employee — about reinstatement of employment irrespectively to the reasons of labour contract termination, about the change of date and formulation of the dismissal reason, about the transfer to another job, about the pay of forced unemployment time or the pay of salary difference for the time of lower paid job performance, about employer's wrongful action or omission of act while processing and protection of personal data;
2) Employer — about employee's reimbursement of damage caused to the employer unless otherwise stipulated by federal laws;
3) About the refusal to hire;
4) Persons working under labour contract for employers-individuals, who are not sole proprietors, and religious organizations employees;
5) Persons who suppose they were discriminated.
Labour disputes consideration in court has its procedural
peculiarities. Firstly, only labour disputes commissions (LDC) are entitled to labour disputes consideration as well as courts. They are formed in enterprises and organizations from an equal number of employees' and employer's representatives. However civil procedure norms do not regulate the matter of dispute transfer from LDC to the court. Secondly, labour law principles are different from the civil procedure law principles. They express essential characteristics of norms of this law area and are formulated in art. 2 of Labour code of the Russian Federation. Thirdly, according to the general rule of territo-
rial jurisdiction the case is considered upon the registered address of the defendant (art.28 CPC RF). Fourthly, according to the part 1 art. 392 LC RF the employee has the right to file a lawsuit to court seeking individual labour dispute resolution within three months from the day he found out or must have found out that his right was violated; regarding dismissal disputes — within one month from the day he was issued a labour book; regarding the cases of material damage reimbursement caused to the employer from the employee — one year since the date of damage discovery. It is always difficult to define the starting date of this period. Fifthly, taking into account the adversarial principle as provided for by art.12 CPC RF and the provisions of the art. 56 CPC RF whish state that each party has to prove the circumstances it refers to as to the basis of its demands and responses, the obligation to prove the presence of facts obstructing the person referring to the additional (new) evidence to provide it to the first instance court is lied on that person. But not all testation provided by the parties to the court can be accepted. The court estimates the evidence from the point of their relevance, admissibility, credibility. Sixthly, while considering labour disputes it is necessary to take into account the specificity of labour legal personality of labour relations parties. So, labour dispute cases between a shareholder who is an individual and a corporation, other business partnership participant or company and this business partnership or company are subj ect to regular courts.
In the case of a problem occurrence, if the dispute appeared between the above-noted subjects is a labour one, the courts have to define that these relations are based on the agreement between the employee and the employer about the paid personal performance of labour functions by the employee (work due to the position in accordance with job pattern, profession, specialization noting the qualification; concrete type of work instructed t the employee), employee's compliance with internal code of labor conduct while providing the employer working conditions as provided for by labour legislation and other normative legal acts, collective contract, agreements, local normative acts, labour contract (art.15 LC RF), and also if the case is subject to this court [11].
Individual labour disputes which are not regulated by the employee and the employer who is an individual but not a sole proprietor on their own are considered by courts only.
Seventhly, it is necessary to take into account the peculiarities of considering other categories of cases. In particular considering recovery of wages cases. So, while considering cases initiated by the employee labour relations with whom are not ceased on the matter for the recovery of accrued but not paid wage it should be taken into account that the employer's allegation itself for the default of the term for the worker to go to court can not be the grounds for the refusal to satisfy the requirements. This is because in the considered case the time limit for having recourse to the court is not defaulted as far as a violation of a long-term nature, and the employer's obligation to pay the salary to the employee timely and in full (the more delayed sums) persists within the validity period of the
labour contract. Eighthly, it is necessary to take into account that while filing a lawsuit to the court making claims which result from labour relations including failure to perform labour contract provisions or their defective performance which have civil legal nature only employees are free from paying duties and court costs.
Chapter 61 of LC RF as general provisions of collective labour disputes consideration order stipulates the provisions about collective labour disputes consideration in the form of conciliation procedures consisting of collective labour disputes consideration by the conciliation commission in order to resolve it with the participation of a mediator and (or) in labor arbitration; about the acknowledgment of a strike as the way to resolve a collective labour dispute; about the lock-out prohibition.
From legal viewpoint, a conciliation commission is the jurisdictional agency that contributes to settlement of a collective labour dispute and consists of representatives of these parties. Emergency of legal personality of the conciliation commission is connected with the peculiarities of its formation. This agency develops upon an initiative of one of the parties from the moment of appearance of collective labour dispute (conflict) with equal number of representatives of the parties. Thereat the parties independently set forth the requirements to the candidates for the conciliation commission members. In this aspect a special education and professional training and so on is of great importance.
In accordance with the part 1 of the article 403 of the Labour Code of the Russian Federation, not later than the next business day after the day of composition of a statement of disagreements by a conciliation commission the parties of the collective labour dispute are obliged to hold negotiations on consideration of the collective labour dispute with the participation of a conciliator. In case of failure to achieve agreement of the parties of the collective labour dispute a statement on refusal of the parties or one of the parties to hold this conciliation procedure and they commence to negotiate on consideration of the collective labour dispute in labour arbitration.
A conciliator has the right to [4]:
1) request and receive from the parties necessary documents and data, On the collective labour dispute;
2) within the process of consideration of the collective labour dispute hold if necessary joint or separate meetings of the representatives of the parties;
3) offer his or her own possible variants of solution for the collective labour dispute;
4) sign decisions, adopted by the parties of the dispute with his or her participation.
The conciliator is obliged to keep national security information, official secrecy, commercial or other secrets protected by law when performing his or her functions during participation in the conciliation procedures.
Foreign experience increases the significance of state conciliators — specially appointed civil servants and government bodies. For example in Finland a so-called state conciliator is
appointed, in Federal Republic of Germany a conciliator at the ministry of labour is performing, who participates in the settlement of disputes when agreements are concluded on the federal level. International practice distinguishes compulsory and voluntary mediation. When the compulsory mediation takes place, the parties must participate in negotiations, the mediation procedure itself. When it is voluntary, they consider just propositions of a conciliator.
In Russia the recommendations on organization of work on consideration of a collective labour district with participation of a conciliator are approved by Decree of Ministry of labour and social development of the Russian Federation dated August 14, 2002 No. 58. A conciliator may be any independent specialist, engaged in the participation in solution of the dispute according to will expression of the parties, which is executed in the form of minutes of meeting of their representatives. Consideration of the collective labour dispute with participation of a conciliator is completed with adoption by the parties of an agreed resolution in written form or creation of a statement of disagreements.
In accordance with the part 2 of the article 401 of the Labour Code of the Russian Federation, the parties are obliged to hold negotiations on consideration of a collective labour dispute in labour arbitration not later than the next day in the following cases:
- after composition of statement of disagreements on completion of consideration of the collective labour dispute with the participation of a conciliator;
- after expiration of a period, within which the parties of the collective labour dispute must reach agreement regarding the nominee for conciliator;
- after execution of the minutes on refusal of the parties (one of the parties) of the collective labour dispute from the consideration of collective labour dispute with the participation of a conciliator.
In the presence of consent of the parties of the collective labour dispute to consider the dispute in a labour arbitration, they conclude a corresponding agreement, on the basis of which its decision becomes binding for the parties.
The labour arbitration considers applications of the parties of the collective labour dispute; receives necessary documents and data, relating to this dispute; informs in case of necessity the governmental authorities and local government bodies on possible social consequences of the collective labour dispute; passes a resolution on the essence of the collective labour dispute.
The result of consideration of the collective labour dispute in the labour arbitration is adoption of a decision on settlement of the dispute. It is composed in written form, signed by the industrial arbitrators and given to the parties of the collective labour dispute (recommendations on organization of work on consideration of a collective labour district with participation of a conciliator are approved by Decree
of Ministry of labour and social development of the Russian Federation dated August 14, 2002 No. 59).
The Labour Code of the Russian Federation points out the possibility of execution of compulsory arbitration in the cases, when performance of strikes is restricted or prohibited by law.
The decision is made taking into account all the circumstances of the case in strict adherence to active laws and other normative legal acts in the sphere of labour. If the parties fail to arrive at an agreement on creation of a labour arbitration, its composition, rules and empowerment, the decision on these matters is made by a corresponding agency for settlement of collective labour disputes.
Employees are entitled to use the right to strike in cases when all the measures for realization of the said procedures have been used, but the dispute remains unsolved or an employer and (or) its representatives do not perform the agreement achieved. The decision on announcement of a strike in accordance with the part 1 of the article 410 of the Labour Code of the Russian Federation is adopted in two ways:
1) by employees of an organization at a general meeting (conference). Proposition on carrying out a strike is brought up at a meeting (conference) at the suggestion of representational body of employees, heretofore authorized by them for settlement of the collective labour dispute;
2) by a trade union, representing the employees. The decision on declaring a strike, adopted by a trade union (association of trade unions), approved for each organization by a meeting (conference) of employees of the given organization.
In Russia there are different points of view on the matter of labour justice development: labour courts as well as other federal courts must be included into judicial system of the Russian Federation [7]; it is necessary to create Labour procedure code. This is because, first of all, of a particular subject composition of labour relations, that is why it is exceedingly important to administer procedural rules instead of creating new structures, in particular — labour courts [6]; one of the effective ways of resolving labour disputes is the establishment of arbitration courts [9].
After making a research of different points of view we suppose that it is necessary to establish Judicial divisions considering labour relations disputes in regular courts in Russia. As part of the Judicial division may be formed judicial panels. Judicial division in its activity will follow Labour procedure code. The specialization of Judicial division considering labour relations disputes should include cases resulting from individual and collective disputes. The procedure of these cases consideration will have its peculiarity.
In conclusion we would like to note that the establishment of specialized labour courts, from our point of view, will provide reliable, effective and professional protection of citizens' labour rights.
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