Equal duties - unequal salaries. "Unequal salaries": discrimination or employer right? Equal salary for equal labor

Some workers, especially those who have already fallen, are referred to the court with a claim for the elimination of discrimination and recovery of "preparing" salary differences. Although basically such claims do not have success in courts, nevertheless to the employer have to seriously prepare for such processes and prove its rob in the large amount of documents. This article is talking about how to actually act the employer to prevent loss in the court in such a case.

Prohibition of discrimination in labor

Article 3 of the Labor Code of the Russian Federation contains a ban on discrimination in the field of labor: no one can prefer preferences that are not related to business qualities of the employee. Article 21 of the Labor Code of the Russian Federation said the following: " The worker has the right to timely and in full paymentsin accordance with his qualifications, complexity of labor, the number and quality of work performed " Articles 22 and 132 of the Labor Code of the Russian Federation contain an employer's obligation to provide employees. equal payment for the work of equal value ".

Thus, the employer must simultaneously provide a fair remuneration for labor, and individual, according to the business qualities of the employee. But to accurately appreciate the business qualities of the employee and the quality of their work performed quite difficult. With quantity, of course, it is simpler, but also only where it can be calculated in standard units - how many parts work out, how many hectares of the field plowed and the like. Where work wears a more creative and less standardized nature, assess its quantity, and even more so the quality is much more difficult. How to evaluate the work of a PR manager, marketer-analyst, lawyer?

The greatest debate causes the situation when the salary is fixed and differs from employees in the same positions. The position of the Federal Service for Labor on this issue is set out in the letter dated 04.27.2011 No. 1111-6-1 and is the easiest way of an individual approach to the labor assessment of specific workers: it is necessary to divide the fixed wages to the salary and various kinds of "surcharges".

The Supreme Court also expresses on this issue in determining the judicial board on civil cases of 14.10.2005 No. 5-B05-120. The essence of the precedent is that the employer decided to translate the flight composition for urgent individual labor contracts. Those pilots who agreed to conclude urgent labor contracts, the rate for the flight hours was established higher than those who refused such contracts. The Regulation on the remuneration of the organization concluded this difference. The court indicates its definition: " payment of wages for equal labor in a smaller size than other employees performing the same work, only because they have not signed individual employment contracts (contracts) with a limited period of action, is one of the types of discrimination in paying for equal labor and violates Constitutional rights of plaintiffs"And cancels the judicial acts of the lower instances that the plaintiffs were denied the claim.

In the definition of the judicial board on civil cases of the Supreme Court of the Russian Federation dated December 22, 2006 No. 5-B06-110, a similar position is set forth. So, the plaintiff was dismissed, and then restored at work, after which she was installed unexpected salary. The court indicates: " Establishment of the wage for equal labor in a smaller size than other senior experts of the department that had an equal salary with her before dismissal and performing the same work, only because it was subject to dismissal to reduce the state, is one of the types of discrimination in charge for equal work violates the constitutional rights of the plaintiff" In this regard, the claims were ultimately satisfied.

Justification of the wage difference

Let's look at specific examples, what are the ways to justify the difference in wages.

1. Employees consist in the same positions, have equal qualifications, they have the same duties, but they have different qualities, therefore, salaries and surcharges to the salary are different.

Usually in such a situation that is found quite often, employers are not going in the subtleties of differences between employees and establish the same fixed wage. In addition, a more efficient employee can always be encouraged by a premium.

A more complex way is a thorough analysis and a comparison of the business qualities of workers who will consolidate this difference in the form of a fixed payment, without making orders for the bonuses of the most productive employees every time.

To do this, the company can use a system of positional levels, classes, grades, and the like, which allows one position to classify employees on certain features: grades, classes, ratings, estimates. Such a job legal legislation, since it is a wage system in accordance with Article 135 of the Labor Code of the Russian Federation. Employees are classified according to their business qualities, including through certification. An example of this approach is contained in Solving an Isicojor district court of the city of Arkhangelsk from 28.05.2012 in case No. 2-169 / 2012.

The plaintiff and his colleague were in positions of electricians 8 discharge, performed the same job duties, and their salaries were established different. According to the plaintiff, it was a violation and discrimination, in connection with which he demanded to pay the difference between its salary and salary colleagues. However, different salaries two electromechanics were installed not just so. The company introduced a new wage system, and therefore was adopted by the method of establishing official salaries. The methodology provided for a ballroom assessment of the business qualities of workers held by the Special Commission on the basis of the developed criteria. Business qualities of electromechanics were evaluated by three criteria: work experience in positions, professional knowledge and skills, quality of service duties. The claimant for these criteria scored fewer points than his colleague that had a longer experience and performing its work better. Since the plaintiff considered the commission assessment of his business qualities a biased, the court interrogated witnesses who carried out work cooperation with both employees. Witnesses confirmed that, although both employees do the work of the same complexity, the colleague of the plaintiff performs its work better, has more experience, employees prefer to contact him more often than to the plaintiff.

The court did the following conclusions:

- the establishment of an official salary is the right of the employer, is determined by the employment contract and depends not only on the qualification of the employee, but also on the complexity of the work performed, the number and quality of the spent labor;

- Work in the same position does not mean its same volume, complexity and quantity, the employer has the right to individually determine the amount of remuneration;

- the establishment of various salary was due to the business qualities of each of the workers;

- An individual approach to pay for each employee meets the current labor legislation and is not discrimination.

Accordingly, the court refused the plaintiff in his requirements.

Another example from judicial practice: Determination of the Irkutsk Regional Court No. 33-5975 / 12 dated 24.07.2012.

The employee was restored at work by the court decision, and the employer was forced to continue their labor relations. According to the results of certification, the employee was assigned a lower rating than he had earlier, and a lower allowance for the basic part of wages was established, the salary itself did not increase. The rest of the staff was raised by the basic salary. In this case, the official instruction was the same for all employees for this position. These circumstances plaintiff considered discrimination and appealed to the court. The court refused, motivating his decision the same arguments as in the previous judicial act.

Thus, employees can also be installed different salaries, and different surcharges on them depending on the business qualities of employees working in one position.

Although this position of the courts and does not correspond to the Federal Service for Tariffs outlined in the letter of 27.04.2011 No. 1111-6-1, but is quite reasonable. It should be noted that the letter is not mandatory for use, it is only the opinion of the official of the regulatory authority alternatively on this issue.

Employers' approach itself is also interesting to justify the difference in salaries: careful work was carried out on the assessment of the business qualities of workers based on the developed techniques. Such an approach Although it is an element of a corporate bureaucracy, but at the same time is a clear and understandable mechanism, which makes it equally to provide an individualized approach to pay for labor and protect the company in case of complaints of "offended" employees.

2. Employees are in one position, but have different duties (job descriptions) and different salaries.

This situation is a simpler version of the rationale for the difference in a fixed salary (salary). Here the employer does not need to evaluate (certification) of employees, since differences in official duties imply different business qualities of workers who fulfill these duties, and, accordingly, a different reward for the work of each of the workers. Consider a couple of examples, as is happening in practice, and the employer reflects the claims of displeased staff.

So, B. The definition of the Krasnoyarsk Regional Court in case No. 33-6699 dated July 22, 2013 is described the following case.

Two employees had the same positions - a senior engineer for exploiting and optimizing a mobile network, but at the same time they had any salaries. When an employee who has a salary has had less, he learned that his colleague receives a higher salary in the same position, it served as a reason for appealing to court with a claim for discrimination and pay the difference in wages. The court investigated the job descriptions of both employees and came to the conclusion that a more highly paid engineer has a circle of job duties wider and responsibility above. Based on this, the court considered a lawful establishment of the salary in a larger employee with a wider range of responsibilities and greater responsibility.

A similar situation is considered in The appellate definition of the judicial board of the Penza Regional Court of July 17, 2012 No. 33-1679.

One of the three employees in the position of legal adviser received a salary less than two of his colleagues, which served as the basis for appealing to court with a claim for discrimination. The court investigated the official instructions of the plaintiff and his colleagues, interrogated them as witnesses and came to the conclusion that the obligations of the colleagues of the plaintiff were more complex and demanded specific knowledge in various areas of law and greater degree of responsibility. Accordingly, it was denied a lawsuit.

Thus, from the above examples, it follows that to establish various salaries to employees in one position it is necessary that the range of responsibilities of such employees differed in terms of volume and complexity, which must be confirmed by the job description.

3. Employees in one post and with the same duties are installed the same salary, but different surcharges.

Perhaps one of the least difficult ways to establish various wages to employees - it is to make the same salaries and introduce differentiating surcharges according to certain criteria. It is this case that is described in the appellate definition of the judicial board on civil cases of the Moscow City Court of 16.05.2012 No. 11-5036 / 2012.

So, two employees worked in one position - business development manager. One of the employees salary was significantly higher than that of another, in connection with which the last and initiated a trial about discrimination. At the hearing, it was established that a higher paid development manager had an experience of 10 years, and the plaintiff did not have. At the same time, the staff schedule provided for the allowance to the salary for the experience, and this was explained by the difference in wages. Based on these arguments, the court rejected the claimant's requirements.

It should be noted that this position is most complisfactory in the letter of the Federal Service for Tariffs from 27.04.2011 No. 1111-6-1.

So, we reviewed several typical situations of the rationale for "unequal wages." As you can see, the courts are quite loyally tuned in this matter in relation to employers. But it should be remembered that this is due to a clear documentary and actual substantiation of the difference between the valid business qualities of workers and / or their circle of responsibilities. Those companies that find ways to competently and fairly justify such a difference both within the company and in a lawsuit, have a high chance of success in case of lawsuits of offended workers.

We also note that the situation where the unequal salaries may cause questions from the state inspection authorities for labor, which is closer to the position set out in the letter of the Federal Service for Tariffs dated 27.04.2011 No. 1111-6-1. Accordingly, there is a risk of bringing to responsibility under Article 5.27 of the Code of Administrative Offenses of the Russian Federation, if this situation is considered a violation of labor legislation by the Surgeonspector. What, nevertheless, does not prevent the employer to defend its position in court by appealing such an inference to work.

Also, some specialists in the presence of a grads system, estimates and the like advise in the framework of specific grads to establish different categories of posts, for example: the leading adviser of the first category, the leading legal adviser of the second category and the like. Accordingly, these are already individual posts, and in case of changing the Grade of the employee, transfers must be translated, which creates an additional burden on the personnel service.

Attention should also be paid to the fact that the claims of workers are caused by the fact that they do not very well represent than the difference in salaries is caused. This is due to the opacity of the wage setting: often workers are simply not clear why the colleague is paid more and why the difference in salary is carefully hidden. It forms a feeling of deception and injustice. In this direction, it is necessary to provide explanatory work with staff, to explain the principles of the formation of remuneration for work in the company both to all employees and a particular person who believes that it is financially underestimated. This will help in many cases eliminate the brewing conflicts about unequal salaries.

Irina Vishnepolskaya, practicing lawyer

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New edition of Art. 22 TC RF

The employer has the right:

make, change and terminate labor contracts with employees in the manner and under the conditions established by this Code, other federal laws;

lead collective negotiations and conclude collective agreements;

encourage workers for conscientious effective labor;

require workers to perform their work duties and careful attitudes to the property of the employer (including the property of third parties who have an employer if the employer is responsible for the safety of this property) and other employees, compliance with the rules of the internal labor regulation;

attract workers to disciplinary and material responsibility in the manner established by this Code, other federal laws;

take local regulations (with the exception of employers - individuals who are not individual entrepreneurs);

create associations of employers for the purpose of representation and protect their interests and join them;

create a production council (with the exception of employers - individuals who are not individual entrepreneurs) - the deliberative body formed on a voluntary basis from among the employees of this employer, which is usually achieving achievements in labor to prepare proposals for improving industrial activities, individual production processes , introduction of new techniques and new technologies, improving the productivity and qualifications of workers. Powers, composition, procedure for the activities of the production council and its interaction with the employer are established by a local regulatory act. The powers of the manufacturing board cannot include the decision of which, in accordance with federal laws, attributed to the exclusive competence of the Organization's management bodies, as well as issues of representation and protection of the socio-labor rights and interests of employees, whose decision in accordance with this Code and other federal laws are related to To the competence of trade unions, relevant primary trade union organizations, other representatives of employees. The employer is obliged to inform the Production Council on the results of the consideration of proposals received from the production council, and their implementation;

implement the rights granted to him by legislation on a special assessment of working conditions.

The employer must:

comply with labor legislation and other regulatory legal acts containing labor law norms, local regulations, collective agreement conditions, agreements and employment contracts;

provide employees work due to labor contracts;

ensure safety and working conditions that meet the state regulatory requirements of labor protection;

provide workers with equipment, tools, technical documentation and other means necessary for the performance of labor duties;

provide employees equal to pay for labor equal value;

pay in full scale due to employees wages on time established in accordance with this Code, a collective agreement, the rules of the internal labor regulation, employment contracts;

lead collective negotiations, as well as to conclude a collective agreement in the manner prescribed by this Code;

provide representatives of employees full and reliable information necessary for the conclusion of a collective agreement, agreement and control over their implementation;

to acquaint workers to paint with the received local regulatory acts directly related to their employment;

in a timely manner to fulfill the prescriptions of the federal executive body authorized to exercise the federal state supervision of compliance with labor legislation and other regulatory legal acts containing the rules of labor law, other federal executive bodies carrying out state control (supervision) in the established field of activity, pay fines imposed for violations of labor legislation and other regulatory legal acts containing labor law norms;

consider the submissions of the relevant trade union bodies, other representatives elected by employees of representatives on the identified violations of labor legislation and other acts containing the norms of labor law, to take measures to eliminate the violations identified and report the measures taken by these authorities and representatives;

create conditions that ensure the participation of employees in the management of the organization in the formations provided for by this Code, other federal laws and a collective contract for forms;

ensure the domestic needs of employees related to the performance of labor duties;

carry out compulsory social insurance of employees in the manner prescribed by federal laws;

compensate for the harm caused to employees in connection with the performance of labor duties, as well as compensate for moral harm in the manner and under the conditions established by this Code, other federal laws and other regulatory legal acts of the Russian Federation;

perform other duties stipulated by labor legislation, including legislation on a special assessment of working conditions, and other regulatory legal acts containing labor law standards, a collective agreement, agreements, local regulatory acts and employment contracts.

Commentary on Article 22 of the Labor Code of the Russian Federation

While Article 21 of the Labor Code of the Russian Federation remains almost unchanged for a long time, Article 22 of the Labor Code by federal law N 90-FZ has been subjected to noticeable adjustments.

In accordance with the current editorial board of this article, the employer is granted the right to demand from workers of a careful relationship not only to the property of the employer, but also to the property of third parties located at the employer in the responsible storage (in use). In addition, the obligation to the employer was imposed on the familiarization of employees to the painting with the local regulatory acts received directly related to their employment.

Another comment to Art. 22 of the Labor Code of the Russian Federation

1. The employer as a subject of labor and directly related legal relations acts in them with a carrier of certain rights and obligations, which, as well as the rights and obligations of the employee, have a statutory and treaty character. Statutual list of rights and obligations of the employer, fixed by the text Art. 22, has an imperative nature, the purpose of which is to establish the common borders of the organizational and managerial power of the employer over its employees. Within this power, the employer as a subject of relations to the organization of labor and labor management is provided by the rights:

a) encourage workers for conscientious efficient labor (see Art. 191 of the Labor Code of the Russian Federation and comment on it);

b) demand from employees with their work duties and careful attitudes towards their property and property of other workers;

c) attract employees to disciplinary and material responsibility in the manner prescribed by the Labor Code of the Russian Federation and other federal laws (see Art. 193 of the Labor Code of the Russian Federation and the comment on it);

d) take local regulations (see Art. 8 of the Labor Code of the Russian Federation and comment on it).

As a subject of employment relations and labor relations, the employer is granted the right to conclude, change and terminate labor contracts with employees in the manner and under the conditions established by the Labor Code of the Russian Federation and other federal laws. It should be paid to the fact that these employer's rights do not provide him with freedoms in conclusion, changing and termination of employment contracts with employees. On the contrary, the legislation actually limits this freedom, in particular, by establishing prohibitions for the employer of prohibitions on an unreasonable refusal to an employed person in the conclusion of an employment contract (see Art. 64 of the Labor Code of the Russian Federation and the comment on it) and the requirement from an employee of the work that is not due to the employment contract ( See Art. 60 TK RF and comment on it). In addition, the translation to another permanent job can be carried out by the employer only with the consent of the employee (see Art. 72 of the Labor Code of the Russian Federation and the comment on it), and the termination of the employment contract with the employee on the initiative of the employer can only take place on the grounds provided for by law ().

As a subject of relations to the social partnership, the employer is granted the right to lead collective negotiations and conclude collective agreements, and for representation and protect their interests - the right to create associations of employers and join them.

The total number of statutant rights provided to the employer is noticeably less rights, the data of the employee (see Art. 21 of the Labor Code of the Russian Federation and comment on it). This is explained by the fact that the employer, as a rule, has sufficient economic and organizational and managerial capabilities to independently satisfy its interests in relations with employees and, by virtue of this, does not experience special needs in the formalization of their rights through the law. As for employees, they just need a guaranteed law of statutory labor rights guaranteed by the law, to a certain extent that protect them from abuse by the employer of their economic and organizational and management authorities.

2. In turn, the list of statutory duties of the employer is wider than the responsibilities of the employee. It is explained by the fact that most of the obligations of the employer are the current side of the rights of the employee. In this sense, the appointment of the employer's responsibilities and consists in providing employees to additional guarantees of the implementation of their statutory rights.

Failure to be employers of their duties entails criminal, administrative, material and disciplinary responsibility for them (see Art. Art. 234 - 237, 419 of the Labor Code of the Russian Federation and comment on them).

• Up

1. Labor is free. Everyone has the right to freely dispose of its work skills, choose the generation and profession.

2. Forced labor is prohibited.

3. Everyone has the right to work in conditions that meet the requirements of safety and hygiene, to remuneration for labor without any discrimination and not lower than the minimum wage established by the federal law, as well as the right to defense against unemployment.

4. It is recognized as the right to individual and collective labor disputes using the methods of their permission established by the federal law, including the right to strike.

5. Everyone has the right to rest. Working in the employment contract is guaranteed by the Federal Law, the duration of working hours, weekends and holidays paid for annual leave.

Commentary on Article 37 of the Constitution of the Russian Federation

This article 37 proclaims those constitutional rights and freedoms, part of which every person possesses in Russia independently of the genus of his classes, and part of the only individuals who work under an employment contract at a certain employer. Constitutional rights and freedoms listed in Art. 37 - these are not all rights and freedoms that are done by a person in the field of labor, but only the main of them. Most human rights and freedoms in this area are included in the category of so-called socio-economic rights of a person who do not belong to him from birth, but are acquired by entry into legal relations about the use of their work abilities, for example, through the conclusion of an employment contract.

A specific list of socio-economic rights of a citizen is formed by each state independently, individually, on the basis of accounting for maximum limits of its resources available (part 1 of Art. 2 of the International Covenant on Economic, Social and Cultural Rights). In this sense, the volume of socio-economic rights of citizens of economically prosperous states usually exceeds the volume of similar rights in underdeveloped or developing countries.

However, due to the requirements of the norms of international law, some socio-economic rights and freedoms of a person are delivered in one row with civil and political rights, which means the need to ensure their equal accessibility and effective legal protection in all countries of the world community regardless of their existing economic and Financial resources (Art. 2 of the International Covenant on Civil and Political Rights). The rights of this kind include:

a) the right to work, on a free choice of work, for fair and favorable working conditions and to defense against unemployment;

b) the right to equal payment for equal labor without any discrimination;

c) the right to a fair and satisfactory remuneration, providing a decent person to exist for himself and his family and complemented if necessary by other social security means;

d) the right to create professional alliances and enter trade unions to protect their interests;

e) the right to rest and leisure, including the right to a reasonable restriction of the working day and for paid periodic leave (Art. 23 and 24 of the Universal Declaration of Human Rights of 1948).

All these rights, as well as the freedom of a person in the sphere of labor, are reflected in the commented article 37 of the Constitution of Russia.

1. Among the first part 1 of Art. 37 calls the freedom of work, which should be considered as a universal constitutional legal principle, applicable to all types of legitimate labor activity of a person. Under labor activity in this case, it is meant by any kind or type of human classes, which suggests the use and use of its physical and (or) intellectual abilities, knowledge and skills both on compensated and free of charge, both in episodic and periodic or a systematic procedure, both on the basis of the employment contract, and on the basis of any other permitted by the law of the organizational and legal form of attracting people to work. Regardless of the type of use of your abilities, labor everyone has the right to dispose of them freely, and mainly in order to meet their personal interests and needs in any elected place of residence (see).

The freedom of labor is proclaimed by the Constitution belongs to those socio-economic phenomena, which must be present in the market type economy for its normal functioning and translational development. Because of this, labor freedom needs to be considered as a fundamental principle of a market economy, which is the only possible proper economic foundation for the effective functioning of the democratic legal state, which should be the Russian Federation by virtue. In connection with the fundamental role of this principle in modern Russia, it is appropriate to remind the fact that in the conditions of a non-market state-planned economy, on which the Soviet Union was based, demanded as the main other principle - universally difficulty, which implies the imposition on each able-bodied person of the constitutional obligation to work and Application of legal responsibility measures to all persons who do not perform this duty. The implementation of this principle in practice is always associated with the use of forced labor.

Another major principle on which the market economy is also based is the freedom of using its abilities and property for the entrepreneurial and other non-prohibited economic activity (see). As a rule, in the course of the implementation of this activity, hired labor is applied, due to the basis of which in the conditions of a democratic and legal state is free and voluntarily concluded. It follows that the legal expression of the Constitutional Freedom of Liberty and Freedom of Economic Activities is the principle of the Freedom of the Agreement, which, having a constitutional-universal character, is determining the importance for the scope and use of any type of labor activity, including the employment contract carried out on the basis of an employment contract. In the latter case, this principle is transformed into the principle of freedom of employment contract.

However, it should be noted that the wording of this principle is not reproduced by Art. 2 TC among the basic principles of legal regulation of labor relations and other relations directly related to them. This circumstance, of course, does not mean that the principle of freedom of the employment contract does not operate in the field of relations regulated by the regulations of the labor law. It undoubtedly acts in this area, but with certain restrictions, on the presence of which, in particular, clearly indicates the content of the norms of Russian labor legislation regulating the conclusion, change and termination of the employment contract on the initiative of the employer.

The essence of these restrictions is the narrowing of the employer's capabilities as one of the parties to the employment contract, to build its relationship with the employee, as the other Party of this Treaty, solely on the basis of equality, freedom and coordination of the will (see the decision of the CS of the Russian Federation of 06.06.2000 N 9-P * (467)). In reality, the Russian employer does not have freedom of will under the conclusion, nor with a change and even more so when terminating the employment contract. This is confirmed by the fact that the employer's right to terminate the employment contract with its employee to a greater extent binds to the norms of labor legislation not with the will of the employer, but with the actual presence of some united in an exhaustive list of circumstances qualified by these norms as a specific basis for termination of the employment contract on the employer's initiative ( Art. 81 TC).

Thus, it can be stated that under today's Russian legal reality, the principle of freedom of employment contract, the content of which should be freedom to the will of its parties to conclusion, changing or termination of this contract, is significantly limited, at least for the employer. This circumstance raises the question of the constitutionality of this kind of restrictions. Because by virtue of any restrictions on rights and freedoms should be carried out only to the extent that it is necessary in order to protect the foundations of the constitutional system, the rights and legitimate interests of other persons (see Comment on Art. 55), so far and the restriction of economic freedom of the employer, not Called by the specified objectives, in principle should not have the place. However, if in a contradiction with this requirement it still exists, this may indicate the unreasonableness or disproportionality of limiting his rights and freedoms, which, in turn, creates the basis for recognizing the unconstitutional regulations of the relevant legal norms. Such decisions of the Constitutional Court of the Russian Federation accepted repeatedly (see: Decisions of January 24, 2002 N 3-P, from 15.03.2005 N 3-P; Determination of January 16, 2007 No. 160-O * (468)).

It should be paid to the fact that these decisions should be brought to the legal regulation of labor and directly related relations with a new tendency to expand the freedom of employment contract, which, by the way, is really necessary in market conditions of management to impart the necessary flexibility. It is very desirable that the same trend marks and in the activities of a domestic legislator, which would also be useful to realize that in economically prosperous countries, the flexibility of a contractual regulation of labor relations is recognized as one of the most important conditions directly determining the efficiency and competitiveness of the national economy.

2. Inherent in each, by virtue of Part 1 of the commented article 37 of the CRF, the freedom of labor implies not only the possibility of choosing a person of the work activity, the organizational and legal form of the use of its abilities to work and the place of application of this work, but also the ability to refuse which - Labor Labor at all. However, this option of behavior of a particular person should not lead to it in modern Russian conditions no negative consequences, since in accordance with Part 2 of Art. 37 Forced labor in our country is prohibited. In this sense, this prohibition should be considered as a constitutional guarantee of freedom of labor.

It should be noted that the prohibition of forced labor is one of the fundamental principles of not only Russian, but also international law. In particular, it was recorded in the International Covenant on Civil and Political Rights (paragraph 3 of Art. 8), the Convention on the Protection of Human Rights and Fundamental Freedoms (paragraph 2 of Art. 4) and Declarations on the fundamental principles and rights in the field of labor and the mechanism Its implementation, which was adopted by the International Labor Conference (ICT) in 1998 as the basic principle of legal regulation of labor relations and other relations related to them, this prohibition was also reprotected in the sectoral Russian legislation submitted by the Law of the Russian Federation of 19.04.1991 N 1032 1 "On employment of the population in the Russian Federation" (as amended from 18.10.2007) and TC. At the same time, the TC not only assumes this principle to the basic principles of legal regulation of labor and directly related relations (Art. 2), but also devotes its legal regulation of a separate article. 4 "Prohibition of Forced Labor." Such a separation of the legislative regulation of this principle in a separate article should be regarded as an indicator of its special significance that the Russian legislator considered it necessary to emphasize again in this way.

It should also be paid to the fact that the most detailed legal regulation of the prohibition of forced labor is not contained not in the TC, but in the acts of international labor law, which includes two conventions of the International Labor Organization (ILO): Convention 1930 N 29 "On Forced or compulsory work "and the 1957 Convention N 105" On the abolition of forced labor ". Both conventions are ratified by Russia.

In the framework of the Russian legal system, the most detailed definition of forced labor was given in part 2 of Art. 4 TC. It is almost fully based on the wording shown in paragraph 1 of Art. 2 ILO N 29 Convention, which says that the term "Forced, or Mandatory Labor" means any work or service required from any person at risk of any punishment, for which this person did not offer voluntarily services. At the same time, it should be noted that there are certain differences in the characteristic of compulsory labor on international and Russian labor law. So, in contrast to the definition of this TC, the Convention No. 29, both in the title, and in the content says not only forced, but also on compulsory work. At the same time, this convention does not invest any independent significance into the term "mandatory work" in comparison with the term "forced labor", which is why these terms should be considered as synonyms. By the way, based on this, it can be concluded that only one term "forced labor" can be concluded about the legality of the use of Russian legislation.

At the same time, it makes sense to pay attention to the fact that the characteristic of the forced, or mandatory, labor submitted by the N 29 Convention contains two traits, to the number of which include: a) the threat of punishment for non-fulfillment of the required work or service and b) lack of voluntary proposal An employee of its services to perform this work or service. In turn, the TC is limited in the characterization of forced labor by the indication of only one sign, which is the threat of the use of any punishment (violent impact) for non-compliance with the required work. However, this circumstance is likely to not be considered as a violation by the domestic legislator of the provisions of the Convention No. 29, it is simply necessary to proceed from the fact that it has taken a more stringent approach to the qualifications of specific labor as forced. If on the norms of international labor law, this requires the simultaneous presence of two signs, then on Russian legislation is sufficiently one in the form of a threat to the use of any punishment (violent impact).

Each in case of its involvement of enforcement labor has the right to refuse its implementation, including due to a violation of the established timelines for the payment of wages or its payment is not in full, as well as in connection with the emergence of the immediate threat to the life and health of the employee due to Violations of labor protection requirements and, in particular, through its insecurity by means of collective or individual protection in accordance with the established standards (Part 3 of Article 4 of the TC).

Specific types of work required from the employee have similarities with signs of compulsory labor, and nevertheless they are not recognized as the species of such. The list of such works is contained in part 4 of Art. 4 TC. In general, he is consistent with the same list contained in Art. 2 ILO Conventions N 29. However, it should be borne in mind that a list of several wider than that given in Art. 4 TC, since compared to it, it is additionally included in it: a) any work or service, which is part of the usual civil duties of citizens of a fully self-government country; b) minor work of a community character, i.e. Works performed for direct use of the team by members of this collective, and which can therefore be considered the usual civil duties of the team members, provided that the population itself or its immediate representatives have the right to express their opinion on the feasibility of these works.

Despite the fact that our legislator refused to reproduce the formulations of these exceptions from the types of forced labor, they have legal strength and with respect to our country, which follows from the fact of ratification of this Convention. This makes it possible to not consider the forced labor traditional for our country of all kinds of "Saturdays" and "Resurrection", of course, subject to the voluntary participation of citizens in their conduct. It also implies the conclusion that forced labor should not be recognized by the works that are performed for the direct benefit of the team by members of this team on the improvement and sanitary and hygienic prevention of buildings and territories, for example, schools, boardings, children and youth healthy Camps, as well as institutions who enforce administrative and criminal penalties, subject to the provision of these teams of the rights to express their opinion on the feasibility of conducting such works (see the definition of the CS of the Russian Federation of 24.03.2005 N 152-O).

3. For the overwhelming majority of representatives of modern civilization, labor is the main source of existence. By virtue of this, each person able to work should have the right to work, and this right is really provided by Art. 23 of the Universal Declaration of Human Rights, and the citizens of our country also part 3 of Art. 37 constitutions. Possession of constitutional law on labor provides every opportunity to earn a living for a living, which he freely chooses or who freely agrees (Art. 6 of the Covenant on Economic, Social and Cultural Rights). In turn, the implementation of this right allows everyone to satisfy the constantly existing need to create material prerequisites for its normal existence and comprehensive development through earmarked funds.

The legal content of the right to work forms a number of empower, the implementation of which provides a person with the opportunity to choose a labor activity, a profession or specialty, identify the place of application of its work both within and outside the Russian Federation and choose a counterparty for an employment contract (natural or legal person, state or municipal authority, etc.).

In the conditions of a market economy, the right to work is not subjective in the sense that it is not complemented by someone's responsibility to provide each particular person the desired job for him. This conclusion is confirmed by the Constitutional Court, which in one of the legal position formulated by him noted that the right to freely dispose of its abilities to work, choosing a business and the profession does not imply the obligations of the state to ensure a citizen of a specific position (see Definition of 21.12.2000 N 252 -O * (469)).

At the same time, the right of a citizen for labor is under a special defense of the state, which manifests itself, on the one hand, in providing every working person working conditions that meet the requirements of safety and hygiene, payments for work for labor without any discrimination and not lower than the Federal Law The minimum amount of wages, labor protection and employment facilitation, and on the other, in providing various support measures to persons who have lost their jobs and earnings. It follows that the Constitution gives each not just the right to earn a living by difficulty, which he freely chooses or which freely agrees, but also the opportunity to implement this right in the conditions that meet safety and hygiene requirements.

The most detailed characteristic of the content of modern legal norms regulating the labor protection of workers can be obtained on the basis of the analysis of the contents of the articles of the TC, placed in section. X "labor protection. In accordance with the Article contained in it. 209 Labor protection is defined as a system for preserving the life and health of employees in the process of employment, including legal, socio-economic, organizational and technical, sanitary and hygienic, medical and preventive, rehabilitation and other activities. The need for all these activities is assigned mainly as specific duties, for each employer (Article 212 of the TC). The Labor Code also provides every employee with opportunities to protect his right to work in the conditions that meet the state regulatory requirements of labor protection. To this end, all employees are endowed by a number of rights in the field of labor protection (Art. 219). By establishing state regulatory requirements of labor protection of hired workers, the Russian state at the same time contributes to ensuring the safety of labor for their lives and health.

The natural right of everyone who uses their labor on the contractual principles in the interests of another person is the right to remuneration for work. In a market economy, a particular amount of this remuneration is determined primarily by the agreement of the parties themselves. However, it is well known that their economic interests, as a rule, do not coincide, since the employer is interested in reducing its employee wage spending, and an employee - in increasing the size of the remuneration for his work. The practice suggests that the resolution of this conflict of interest is carried out, as a rule, from the position of the employer's force, which has an economic advantage used by him to minimize the wages of workers, often forced to agree on low-paid labor due to the reality of the prospects at all remain without any paid Work. Given this circumstance, part 3 of Art. 37 Specifies the right of everyone to remuneration for labor by prohibition of any discrimination in the remuneration of workers and the obligation of the employer to pay this work at the level not lower than the law of the minimum wage. Such a ban is intended to promote the assertion began justice in remuneration on remuneration.

The work of varying value, of course, should be paid differently. Because of this, current legislation allows differentiation to pay for various types of labor. This differentiation is permissible to pay for the work of one species, but solely depending on the qualifications of workers, as well as difficulties, quantities, quality and conditions of work performed (part 1 of article 129 of the TC). In addition, it is not recognized by discrimination establishing differences, exceptions, preferences, as well as limiting the rights of workers, which are determined by the requirements of the Federal Law inherent in the requirements established by the Federal Law, or are due to the special care of the state about persons in need of increased social and legal protection (Part 3 Art. 3 TC).

At the same time, it should be recognized by discrimination with its differentiation, conducted according to any of the grounds, indicated, along with, in part 2 of Art. 3 TC. All of the discrimination based on this article listed in this article have one general basis - the absence of one or another circumstance that has become the basis for the differentiation of remuneration, communication with the business qualities of the employee or with the objective characteristics of his work. By virtue of this, it cannot serve as a basis for legitimate differentiation in the payment of workers, urgency or indefiniteness of the employment contract with them (see the definition of the CS of the Russian Federation of 06.03.2001 N 52-O), the loyalty of workers in relation to the authorities or employee representatives, participation or non-participation in labor disputes, strikes and other circumstances, quality or properties of a person who discriminating it in the field of remuneration for labor.

In relation to the work of persons working under the employment contract, the constitutional right to remuneration for work is complemented by the TC by the principle of paying to each timely and in the full amount of fair wages, providing a decent person to exist for himself and his family and not lower than the federal law of minimum wage (paragraph 7, Art. 2). The practical implementation of this principle can mean only one thing - in the Russian Federation as a social state, it is necessary to provide each conscientious and efficiently working person the possibility of obtaining such remuneration for work, which would not only be less than the subsistence minimum in the country, but also exceeded him as much as It is necessary to provide a worthy existence of both the working person and his family. By the way, it is such a content that is invested by the international community to the right to work, which belongs to everyone due to the Universal Declaration of Human Rights (paragraph 3 of Art. 23) and the International Covenant on Economic, Social and Cultural Rights (Article 7). However, despite the fact that these international legal acts are an integral part of the legal system of Russia (see a comment on Art. 15), modern Russian legislation establishes such a minimum wage, which still does not even reach the subsistence minimum.

As one of the most important constitutional rights of Part 3 of Art. 37 of the Constitution calls the right of everyone to defense against unemployment. Unemployment deprives a person the ability to realize his labor law and ensure that herself and his family decent existence. For this reason, each state should strive to ensure the most complete and productive employment of the population, to which, in particular, the ILO Convention 1964 N 122 "On Employment Policy" and the ILO 1988 Convention 1988 N 168 "On Promoting Employment and Unemployment protection "* (470), which are considering promoting full, productive and freely elected employment to the priority and an integral part of the economic and social policy of the state. Unfortunately, none of these conventions are ratified by our state. Therefore, in terms of determining its modern intentions in the field of unemployment protection, refer to the Law of the Russian Federation "On employment of the population in the Russian Federation", which determines the state policy in this area. As follows from the content of Art. 5 of this law, the Russian state is not yet aimed at ensuring the most complete and productive employment in relation to every citizen of Russia, therefore it is limited in the relevant area of \u200b\u200bpublic relations to the policy of facilitating the realization of the rights of citizens to full, productive and freely elected employment. This policy, in particular, is aimed at: ensuring equal opportunities to all citizens of the Russian Federation in the realization of the right to voluntary labor and free choice of employment; creation of conditions that ensure a decent life and free human development; support for the labor and entrepreneurial initiative of citizens carried out in the framework of legality, to promote the development of their abilities to productive, creative work; The implementation of activities that contribute to the employment of citizens who have difficulty finding work (disabled, minors, etc.).

In accordance with this policy, the state guarantees every citizen of the Russian Federation to protect against unemployment through the provision of various social support measures, which includes: payment of unemployment benefits, including during the period of temporary disability, unemployed; fee of scholarships during the period of training, advanced training, retraining in the direction of employment bodies, including during the period of temporary disability; The possibility of participation in paid community work (Article 12 and 28 of the Law of the Russian Federation "On Employment of the Population in the Russian Federation").

4. Part 4 commented by Art. The 37 Constitution of the Russian Federation recognizes each right to individual and collective labor disputes using the methods of their permission established by the federal law, including the right to strike. The right to initiate an individual or collective labor dispute belongs only to those who work on the basis of an employment contract. For this reason, the detailed characteristic of the implementation of this right is contained in the TC, which devoted to the appropriate challenge of ch. 60 "Consideration and permission of labor disputes" and ch. 61 "Consideration and resolution of collective labor disputes."

The right to appeal to the authorities for the consideration of individual disputes has a personally defined employee who believes that his labor rights are violated by the employer. Individual labor disputes are discussed by commissions on labor disputes, magistrates and courts (Art. 382 of the Labor Code of the Russian Federation). The Commission on Labor Disputes is not an obligatory authority to consider individual labor disputes, so the employee has the right to contact the magistrate or to court, bypassing this commission.

Unlike individual labor disputes allowed in jurisdictional order, collective labor disputes are considered and settled by the arbitrating parties themselves within the framework of the conciliation procedures carried out with the participation of the conciliation commission, an intermediary and (or) employment arbitration (Part 1 and 2 of Art. 398 TC) . The right to nominate the requirements for the basis for the initiation of collective labor dispute, only workers represented by trade unions, their representative bodies or other representatives of workers who workers from a particular employer and elected at the General Meeting or Conference of Employees (Part 1 of Article 399, Article 31 TC).

The strike, as a temporary voluntary refusal of employees from the fulfillment of its employment duties, is one of the ways to resolve collective labor disputes, which is applicable as an extreme measure on the initiative of workers in cases where the conciliation procedures have not led to the resolution of a collective labor dispute or when an employer or Representatives of the employer shy away from participation in conciliation procedures, do not fulfill the agreement reached during the permission of the employment dispute or do not fulfill the solution of employment arbitration, which is binding (Part 2 of Art. 409 TC).

The decision on the announcement of the strike is made by the General Assembly (conference) of employees of the organization (branch, representation or other separate structural unit), an individual entrepreneur at the proposal of the representative body of workers, previously authorized to resolve the collective labor dispute (part 1 of article 410 of the TC).

In accordance with Art. 455 TC are illegal and strikes are not allowed:

a) in periods of military or emergency or special measures in accordance with the legislation on the emergency; In the bodies and organizations of the Armed Forces of the Russian Federation, other military, paramilitary and other formations, organizations (branches, representative offices or other separate structural divisions), directly by the issues of ensuring the development of the country's defense, the security of the state, rescue, search and rescue, fire-fighting work, warnings or eliminate natural disasters and emergencies; in law enforcement; organizations (branches, representative offices or other separate structural divisions) directly serving particularly hazardous types of industries or equipment, at ambulance stations and emergency care;

b) in organizations (branches, offices or other separate structural divisions) directly related to the provision of life-related population (energy supply, heating and heat supply, water supply, gas supply, aviation, railway and water transport, communication, hospitals), in the event that Strikes creates a threat to the defense of a country or security of the state, life and health of people.

Since labor legislation is related to subjects of joint management of the Russian Federation and its subjects, so far the subjects of the Federation have the right to take laws and other regulatory legal acts, which can be administered longer periods of vacation time compared to the provided by federal legislation. Similar to the authorities have regarding the increase in the duration of the rest of their employees and specific employers who have the right to take on this occasion the relevant local regulations.

Often, workers consider themselves discriminated in the amount of wages compared to colleagues. Win the trial to the employer help competently built, reasonable and legitimate criteria for paying attention. Consider what ways there are ways to justify the differences in wages.

In the practice of labor relations between employees and employers there are many problems on wages. In particular, situations where the employee considers himself financially undervalued and is ready to present a claim to the employer, based on the fact that his colleague occupies the same position, they pay more. Often employers, wanting to minimize such conflicts, make a commercial secret from wages. But it only excites the curiosity of employees. Moreover, it is impossible to control the violation of a similar ban.

Interestingly, even in companies with high corporate culture and a reasonable remuneration system for work, a situation may occur when an employee deems himself discriminated in wages and appeal to the court, demanding a preparing difference from the employer. Often such cases arise when the employee has already quit.

Ban on the establishment of an unreasonable payment difference

Analysis of the norms of the TK RF

In art. 3 of the Labor Code of the Russian Federation contains a ban on discrimination in the field of labor: no one can preference preferences that are not related to the business qualities of the employee.

According to "The worker has the right to timely and fully pay the payment of wages in accordance with his qualifications, complexity of labor, the number and quality of work performed." The obligation of the employer "to provide employees equal to pay for the work of equal value." Article 132 of the TC RF once again declares these provisions. Also note that in accordance with Art. 57 TK RF wages are established in the employment contract between the employee and the employer, i.e. Wears negotiable.

The analysis of these norms allows us to conclude that the employer is clamped in a rather narrow legal corridor: the remuneration of each employee must be individual, "according to work", but fair, not violating the rights of other workers who perform the same work. In reality, it is rather difficult to carry out the gradation of the value of the business qualities of the employee, the quality of the work performed by him. A little less difficult is only the case with the number of work performed, and it is only in a situation where it is possible to measure in some "natural" indicators: in the amount of manufactured work parts made by the operator of calls, processed documents. Where work wears a more creative and less standardized nature, assess its quantity, and even more so the quality is much more difficult. Characteristic examples are the work of a designer, a programmer, a lawyer in which the large component has individual abilities of the employee, i.e. His business qualities.

In addition, it should be remembered that it contains different concepts related to pay for work: a tariff rate, salary and wages (). The tariff rate and salary are fixed per unit of time or calendar month, respectively. And the wage includes all payments: and fixed salary (or tariff), and stimulating, compensatory payments (if installed).

What says Roshdom

The greatest friction causes the situation when all wages are fixed and differ from workers of the same name.

We give the position of the Federal Service for Labor and Employment, set out in the letter dated 27.04.2011 N 1111-6-1 (hereinafter - the letter of Rostrud). Officials noted that "when setting in a staffing schedule of salaries for the same name, the size of salaries should be set the same, and the so-called" expert tariff "of wages may be different from different workers, including depending on the qualifications, difficulty, quantity and quality Labor. "

This position is the easiest way of an individual approach to the assessment of the labor of specific workers: a breakdown of fixed wages to the salary and various kinds of "allowances" - what Rudrud calls "the Naddariff".

Position of the Supreme Court of the Russian Federation

As for judicial practice, an important precedent confirming the inadmissibility of establishing different fixed wages for workers who perform the work of the same complexity are the definitions of the SC on civil cases of the Supreme Court of the Russian Federation.

Arbitrage practice. In determining the judicial board on civil cases of the Supreme Court of the Russian Federation of 14.10.2005 No. 5-B05-120, the story of a long-term trial on the suit of pilots to the employer is about the obligation to supplement the unfounded payroll difference. The essence of the case is that the employer decided to translate the flight composition on urgent individual labor contracts. Those workers who agreed to conclude them, the rate for the flight hours was established higher than those who refused such contracts. The regulations on the payment of the organization stipulated this distinction.

The court indicated that "the payment of the plaintiffs of wages for equal labor in a smaller amount than other employees performing the same work, only because they did not sign individual employment contracts (contracts) with a limited period of action, is one of the types of discrimination In payment for equal labor and violates the constitutional rights of the plaintiffs, "by repealing the judicial acts of the lower instances, which the plaintiffs were denied the claim.

Arbitrage practice. A similar position is also contained in the definition of SC on civil cases of the Supreme Court of the Russian Federation dated December 22, 2006 N 5-B06-110.

The judicial act describes the situation when the plaintiff was fired and then restored at work. And after recovery, there was an underestimated salary. According to the court, "Establishing the plaintiff for equal labor in a smaller amount than other senior experts from the department that had equal salary with it before dismissal and performing the same work, only because it was subject to dismissal to reduce the state, is one of the types discrimination is paid for equal labor, violates the constitutional rights of the plaintiff. " In this regard, the claims were satisfied.

As you can see, the highest judicial instance also does not support anything unformed difference in fixed payment for labor. On cases where the establishment of such a difference is based on the differences between the work performed by employees, their business qualities, will be discussed in the next section.

How to justify wage difference

So, consider possible options for justifying the difference in wages of employees of one position.

Employees have the same positions and qualifications, perform the same duties, but have different business qualities and have different salaries and / or allowed to them.

Such a situation is frequent, and, as a rule, employers establish the same fixed wage, without going into differences between employees or encouraging more efficient employees with prizes. But if the employer wishes to provide an individual approach to remuneration for work in the form of a fixed amount, without making orders of bonuses over more productive employees every time, he should be carefully analyzed and comparing the business qualities of workers. After all, these qualities, with other things being equal, are able to make an argument when establishing a more efficient employee of a higher wage.

Many modern companies use a system of positional levels, classes, grades, etc. Its essence is that, in the framework of one post, employees are classified according to certain features: classes, grams, estimates, levels. This approach is quite admissible in accordance with the labor legislation and is nothing more than a wage system, which in accordance with Art. 135 TK RF Employer has the right to establish. As part of such a remuneration system, employees are classified according to their business qualities, including through certification.

Unfortunately, the TC RF does not disclose this concept and does not contain basic provisions on the procedure for conducting such certification. The employee certification is mentioned in Art. 81 TK RF as one of the grounds for the dismissal of an employee who has insufficient qualifications for the position. However, many companies apply this tool into much more positive purposes - to assess the business qualities of employees in order to individualize remuneration for labor.

Arbitrage practice. The indicative example of this approach demonstrates the decision of the Isaographic District Court of the city of Arkhangelsk from 28.05.2012 in case No. 2-169 / 2012.

Thus, the plaintiff and his colleague were in positions of electromechanics 8 discharge, one and the same duties were performed, while the salaries were established different. The plaintiff considered such a state of affairs to violate his rights and substantiated his projection projection on the part of the employer, demanding to recalculate the salary disposable to it based on the difference in the salary. But the employer has established different salaries to two electromechanics. The company introduced a new wage system, and therefore was adopted by the method of establishing official salaries. She envisaged a scoring assessment of the business qualities of workers held by the Special Commission based on the developed parameters. Business qualities of electromechanics were evaluated by three criteria: work experience in positions, professional knowledge and skills, quality of service duties. The claimant for these criteria scored fewer points than his colleague that had a longer experience and performing its work better. Since the plaintiff considered the commission assessment of his business qualities a biased, the court questioned witnesses who carried out working interaction with both employees. Witnesses confirmed that, although both employees perform the work of the same complexity, the colleague of the plaintiff performs work better, has more experience, colleagues prefer to contact him more often than to the plaintiff.

Based on the circumstances studied, the court made important conclusions:

- the establishment of an official salary is the right of the employer, is determined by the employment contract and depends not only on the qualification of the employee, but also on the complexity of the work performed, the number and quality of the spent labor;

- Work in the same position does not mean its same volume, complexity and quantity, the employer has the right to individually determine the amount of remuneration;

- the establishment of various salary was due to the business qualities of each of the workers;

- An individual approach to pay for each employee meets the current labor legislation and is not discrimination. Based on these theses, the court refused the plaintiff in his requirements.

Employees can be installed not only different salaries, but also different surcharges to them depending on the business qualities of employees working in one position.

Arbitrage practice. We give another example from judicial practice - the definition of the Irkutsk Regional Court N 33-5975 / 12 dated 24.07.2012.

Fabul Dispute consisted that the worker was restored at work by court decision. The employer, forced to continue his labor relations, as a result of the certification assigned to the employee a lower rating than he had previously, and set him a lower allowance for the basic part of wages. In addition, the rest of the employees were raised by the basic salary, and the plaintiff - no. At the same time, the official instruction was the same for all employees for this position. These circumstances plaintiff considered discrimination, in connection with which he appealed to the court. The court refused, motivating his decision by the arguments similar to those in the previous judicial act.

In our opinion, the position of the courts is quite reasonable and reasoned, although it is not consistent with the position set out in a letter of Rostrud. But it should be noted that the letter is not mandatory for use, it is only the opinion of the official of the regulatory authority, an alternative position on this issue.

It also deserves attention and how employers have justified the difference in the salaries: a thorough work was carried out on the assessment of the business qualities of employees based on the developed techniques. This approach is although it is an element of a corporate bureaucracy, but is a clear and understandable mechanism, which makes it equally to provide an individualized approach to pay for labor and protect the company in case of complaints with "offended" employees.

Employees are in one position, but have different duties (job descriptions) and different salaries

This situation is a simpler version of the rationale for the difference in a fixed salary (salary). Here the employer does not need to evaluate (certification) of employees, since differences in official duties imply different business qualities of workers who fulfill these duties, and, accordingly, a different reward for the work of each of the workers. Consider a couple of examples of how this happens in practice and the employer reflects the claims of displeased employees.

Arbitrage practice. In the definition of the Krasnoyarsk Regional Court of July 22, 2013 in case No. 33-6699, the following case is described. Two employees had the same positions - "Senior Engineer for Operation and Optimization of Mobile Network", but at the same time they differed from them. When an employee with a smaller salary learned that his colleague has a higher salary, it served as a reason to appeal to court with a claim for discrimination and pay the difference in wages.

The court investigated the job descriptions of both employees and came to the conclusion that a more highly paid engineer has a circle of job duties wider and responsibility above. Based on this, the court considered a lawful establishment of the salary in a larger employee with a wider range of responsibilities and greater responsibility.

Arbitrage practice. A similar situation is also considered in the appellate definition of the judicial board of the Penza Regional Court of 17.07.2012 No. 33-1679. One of the three employees in the position of legal adviser received a salary less than two of his colleagues, which served as the basis for appealing to court with a claim for discrimination. The court investigated the official instructions of the plaintiff and his colleagues, interrogated them as witnesses and came to the conclusion that the obligations of the colleagues of the plaintiff were more complex and demanded specific knowledge in various areas of law and greater degree of responsibility. Accordingly, it was denied a lawsuit.Thus, from the above examples, it follows that to establish various salaries to employees in one position it is necessary that the circle of their duties differed in terms of volume and difficulty, which should be confirmed by the job description (and / or labor contract).

Employees of one post and with the same duties are installed the same salary, but different surcharges

Perhaps one of the least difficult ways to establish various wages to employees - it is to make the same salaries and introduce differentiating surcharges according to certain criteria. This case is described in the case below.

Arbitrage practice. Two employees worked in one position - "Business Development Manager". One salary was significantly higher than that of another, in connection with which the latter and initiated a trial about discrimination. The meeting found that a higher paying development manager had a work experience of 10 years, and the plaintiff did not have. At the same time, the staff schedule provided for the allowance to the salary for the experience, and this was explained by the difference in wages. Based on such arguments, the court rejected the claimant's claims (the appellate definition of the judicial board on civil cases of the Moscow City Court of 16.05.2012 No. 11-5036 / 2012).

It should be noted that this position is most complied with the statement outlined in the letter.

Having considered several typical situations of the rationale for "unequal wages", it can be seen that the courts in this matter are rather loyally tuned towards employers. But it should be remembered that this is due to a clear documentary and actual rationale between the difference between the valid business qualities of workers and / or their duties. Those companies that find ways to competently and fairly justify such a difference both within the company and in a lawsuit, have a high chance of success in case of lawsuits of offended workers.

We also note that the situation is when the salaries are not equal, may cause questions from the state inspection authorities for labor, which is closer to the position set forth in the Rostrude letter. Accordingly, there is a risk of attracting responsibility under Art. 5.27 Administrative Code, if the labor inspector will see the violation of the legislation. What, nevertheless, does not prevent the employer to defend its position in court by appealing such an inference to work.

Some experts are also provided with grades, ratings, etc. Secondly, in the framework of specific grads to establish various categories of posts, for example, the leading advisant of the 1st category, leading legal adviser of the 2nd category, etc. Accordingly, it will be already individual positions, and in case of changing the Grade of the employee, it is necessary to issue a translation to another job, which creates an additional burden on the personnel service.

Attention should also be paid to the fact that employees make claims because they do not very well represent than the difference in salaries is caused. This is due to the opacity of the wage setting system: often workers are simply not clear why the colleague is paid more and why the difference in salary is carefully hiding, which causes a feeling of injustice. In this direction, it is necessary to provide explanatory work with staff, to explain the principles of the formation of remuneration for work in the company both to all employees and a particular person who believes that it is financially underestimated. This will help in many cases eliminate the brewing conflicts about unequal salaries.

To write my hands on this topic I have been scratched at me for a long time, and not least, because it affects me personally. And even if it did not affect, in the Market Russian Federation, this issue is surrounded by a bunch of new-fashioned myths (which, by and large - just not well-forgotten old). So, let's try to figure out why hired employees working in a single organization that have similar qualifications and experience on the same positions on the functionality of positions can differ very significantly in the amount of wages, by 20% or more? At the same time we will analyze several popular fairy tales in this area, from the authors: "You just envy" and "no need to consider money in someone else's pocket." In order not to make unsalurative statements, the data will be given on the basis of my profession, experience work and personal observations. Immediately make a reservation, it is relevant for office work in Moscow, in the regions (with the exception of St. Petersburg, Novosibirsk, Tyumen, and still couples of regional centers) wages can be safely divided by 2-3.

I work with a specialty lawyer; Higher education of one of the leading Moscow universities, free knowledge of English, experience in the specialty for more than 10 years. So logically start with the regulatory framework. Art. The 3 of the Labor Code of the Russian Federation (TK RF) contains a ban on discrimination in the field of labor: no one can be preferences that are not related to the business qualities of the employee. According to Art. 21 of the Labor Code of Russia, the employee has the right to timely and fully pay the payment of wages in accordance with its qualifications, complexity of labor, the number and quality of the work performed, while Art. 22 TK RF established the obligation of the employer " ensure employees equal payment for the work of equal value" Actually, this is one of the cornerstone of labor legislation, along with a guarantee of vacation and an 8-hour working day. Those legal restrictions on the unrestrained operation of the capital of hired labor, which were blood conquered by generations of workers; Time echo, when normal was considered a 12-hour working day for adult men, and for 10-hour work for children and adolescents it was necessary to go to the barricades.

With the change of the ruling class of our country to the bourgeois, the provisions of the Labor Code of the Russian Federation on equal payment for equal labor, as the majority of the rules adopted in favor of both workers are more declarative. At the same time, remaining legally enshrined, it gives at least the grounds for the formal legal analysis of the specified phenomenon, and in a broader sense - and for political economical.

Despite the legislative consolidation, the norms of the Labor Code of the Russian Federation as a rule, by assigning various official names (Chief Legal Counsel, leading legal adviser, a specialist of the first-second category, etc.) for the same functionality. Either by enrolling employees, on the fact of working in one project, to the staff of various legal entities (as, for example, at my work). Thus, formally complied with the requirement of labor law: they say that you do not like, do you have all the regular units? At the same time, a purely legal analysis does not give a valid understanding of the cause of this phenomenon, in contrast to the political economic.

The product of the productive labor of the individual (under it you can understand the goods rendered to the service or performed work) has a dual nature, namely - consumer cost and exchange (or just worth). At the same time, not all products have a changeable value, since it can be produced to a commodity producer and it is also consumed ("and immediately drank!"), And not everyone who has the price of the phenomenon (for example, conscience, honor, beliefs) are goods However, well bought and sold. At the same time, a product that does not have a consumer value cannot become a commodity, since otherwise it will simply won't be in demand in the market. All costs are made only and exceptionally human labor, which is not established by Karl Marx, and long before him, the founders of political economy - Adam Smith and David Ricardo, and before them - still antichephic philosophers. The basis of modern capitalist production is the assignment of the owner of the production (permanent capital), that is, the capitalist, surplus value arising from the difference between the value that the work of the worker's work joins the product and the cost of the working force being purchased by the capitalist (variable capital ). At the same time, confusion often arises in the concepts of "labor" and "labor force". Labor is a productive expedient activity on the transformation of the surrounding world, "the process ... in which a person will mediate his own activities, regulates and controls the metabolism and nature and nature" (K. Marx). Labor does not have the cost (on what, actually, and stumbled with the Ricardo School), he himself creates it. The workforce is the combination of physical and intellectual characteristics, which have a person to implement its livelihoods, it is the "first productive force" (V. Lenin). Working force, having connected with the tools of production, joins the new cost in the subject of labor already existing in the subject of labor. With the capitalist social and economic formation, labor force is a specific product, the owner of which is a legally free hired worker, exchanging it on the cash equivalent of vitality obtained from capitalist. In most modern activities, labor does not have a consumer value for the employee itself, as it is expropriated from the means of production, but it has a consumer cost for the employer. At the same time, labor that creates new costs should be publicly useful, t. e. bring profit with medium community costs.

The general formula for capitalist production is expressed as follows:

D (money) - t (product) - d '(d + Δd).

The capitalist must advance the available money in permanent capital (the subject of labor and the tools of labor, i.e. the means of production) and variable capital (labor), to buy them in their value, to attach "dead work" contained in the raw materials, through the living labor of the worker To the new product, and, ultimately, at the exit, after selling a new product, get money more than at the entrance. This is truly an alchemical reaction (to Marx Polytecomony also operated the term "surplus value", however, it was shy to open its source), it is possible due to the fact that the work of the worker makes more values \u200b\u200bthan its working force. With all this, the described phenomena - social processes, they do not exist outside of human society (as, for example, exist, physical and chemical processes occur). "Meanwhile, the commercial form and the ratio of the value of the goods in which it is expressed, do not have a decisiveness of anything common with the physical nature of things and the relationships of things that arise from it. This is only a certain public relationship of the people themselves, which takes a fantastic relationship between things in their eyes. To find analogy to this, we would have to get into the foggy areas of the religious world. Here, human brain products are presented by independent creatures, gifted their own life in certain relations with people and with each other. The same thing happens in the world of goods with products of human hands "(K. Marx).

An extensive office superstructure over the production of goods and services in the historical sense appeared quite recently, just over 150 years ago, depending on the degree of coverage of a particular country with capitalist relations. Actually, office workers currently exist in two hypostatas (for which I use legal jargon) - t. N. Inhaus, and employees of a specialized company. InHaus is any "not profile" specialist in the enterprise, for example, a lawyer, accountant, a marketer, a system administrator, etc., whose position is included in the staff, for example, an oil and gas or mining company. At the same time, employees of all the same specialties may exist in, so to speak, profile form, i.e., be hired employees in a company that provides exclusively legal, accounting-audit, marketer or other services. It must be emphasized that all these specialties exist in themselves, but, ultimately, tied to the specific production of goods or services, for the owner of which the specific product produced by them (as a rule, in the form of services) has a consumer value, or directly on the individual consumer. Which is characteristic, in these areas, this particular product can also be produced by and representatives of small bourgeoisie - lawyers, notaries, programmers, individual experts and other services independently, at their own peril and risk.

Everywhere where there is a hired work - there is a surplus value

In the modern left discourse, the question is popular if the work of office workers is producing various managers, economists, lawyers, accountants, programmers, marketers, designers and others - the surplus value. I believe that this can be answered in the affirmative, since their work has a consumer value for the employer, and, in conjunction with the means of production, brings the supplied value to the employer. In other words, wherever there is hired work - there is a surplus value. Another thing is that it is expressed in the product produced (product or service) not directly, but in the form of additional necessary costs. An analogy can be submitted if you remember that Marx writes in the first capital of capital about auxiliary means of production: for example, a factories room, heating for workers heating, etc. So, for example, a fireman serving a steam machine on a spinning factory of the XIX century, Itself is not a productive working in exactly the stranded production, since it does not participate in work on the machines, but the cost created by its work is also attached to the cost of the goods produced by the factory.

Returning directly to the issue of remuneration, if you listen to those of friends who, as they say, got a good job (you probably have such), be it a top manager, a small bourgeois, or someone else, then almost in any conversation that he will lead , at least once (in fact, it is much more often) and it will flash, that he lives well because "it works a lot." Moreover, it sounds almost like an excuse, as if formed as early as a child, in a thus, it breaks out. Full of "packaged" young people and girls at the uncommunications in state-owned companies and business, which parents, relatives or friends attached to these places, and which, of course, "plowed" (the same applies to the content of all important people who, Undoubtedly, they also plowed under them). That is, the understanding of the fact that the cost is still created by work, yet there is no no, and there makes your way through the success of the success of the Atlanta.

So, in 2014, I managed to get a job in the company of medium-sized businesses in the oil and gas sphere. Immediately make a reservation, I will point out the size of salaries from the point of view of the salary, i.e. the amount obtained by the hands will be less on the size of the NDFL 13%. Due to the fact that during the six months, it was not possible to find a job at 100 thousand. It was not possible, I had to reduce the so-called salary expectations up to the size of 85 thousand at the time of arrival at the shoulders I had experience in the specialty about 8 years and free English language ownership. In my department, two girls of lawyers worked with salaries of 90 thousand and 110 thousand, respectively, and the head of Yurotdele with a salary of 181 thousand. In 2015, the girl with a salary of 90 thousand broke up, and a young man was taken to her place, but already with salaries 95 thousand. In 2017, this young man has been reduced, and raised me salary for 10 thousand, up to size 95 thousand, and when the last girl from the old composition was gone, then in its place, in 2018, they took the employee already with salary 115 thousand

At the same time, after dismissal in 2015, the first girl, part of her work went to me, and for the transitional period, before they took a new person and he managed to relieve her duties, the load on me increased 1.5-2 times. But, at my surprise, the salary immediately put on 10 thousand more, so that when I learned about it, then surprisingly quickly turned into a disturbance, while trying to discuss this issue with colleagues, the latter usually answered me in the key: "You Probably, you just do not like the boss! " At the same time, worked out for several years in the department, an employee, as a rule, can understand the volume and complexity of its colleagues. So, functionality, load, qualifications, experience and education in all of us, both new and old workers, was about the same (I even have an advantage in the knowledge of a foreign language). At the same time, each subsequent person came to a higher salary, while I did not align wages. The boss responded about the following: you and so you understand everything, well, but if you don't like it - dismiss! That is, after a time I came across a situation when the work, in general, equal value, was paid in different ways, invariably with the advantage of those who settled later.

When I talked about the situation with the rest of my friends, they, as a rule, did the assumption that I was bad or a little work, or that the employer was "wrong" (right as capitalism in Russia!). However, the newly employed person has not yet shown himself, and on the basis of alone impressions from the interview it is impossible to say whether he will work at least as good as a valid employee. Again, thanks to various part-time, more voltage and overtime work, I managed to earn as much as my colleague with its salary in 110 thousand, which for this money simply performed your daily work for this money. That is, to get an equivalent amount per month, I have forced to work more of my colleagues.It turns out that the difference in remuneration on the same positions is not characterized by the quality and number of labor spent, and something else. With what?

Salary is the cost of vital resources of the employee for a particular society, the cost of reproducing its labor force. The average cost of reproduction of labor consists of the amount of vital funds not only by the worker, but also members of his family, which, so to speak, are intended to replace the parents "from the machine" in old age. Applying this general situation to a specific worker, it can be expressed that the cost of reproduction of the workforce of a lawyer with good qualifications and solid work experience is made up from: the cost of food, household services and other things necessary to live a month, the cost of renting apartments / mortgage contributions , plus a certain allowance for the cost of learning (graduates of leading Moscow universities receive more) and for the "prestige" of work. The head of the legal department receives an additional surcharge not so much because he is more experienced or his qualification is higher, how much to perform the functions of the supervisor, forces subordinates to work (who just did not notice how office workers are relaxing, it is worthwhile to go on vacation! ), and ultimately, conducts the interests of the owner of the business.

Naturally, the contrary to the interests of the employer (capitalist) and the hired employee: the first wants to squeeze out of it as much labor as possible, paying the minimum; The second is to spend the labor as little as possible and get for it the highest possible wage. This antagonism was absent in the Soviet society: a worker received only a part of the vital funds, their significant (if not most of them) was distributed outside the commodity turnover, not the work, but according to needs. Accordingly, the leadership of the socialist enterprise did not have objective reasons (except, of course, the "hikes", the release of defective products, etc.) to cut off the work wage, penalize, infringe it. Part of the public benefits in the form of a wage foundation did not belong to neither the director of the enterprise or the immediate supervisor of the employee. A business - with capitalist OEF: Although the boss does not belong to the wage fund (Fot), however, he is obliged to carry out the interests of the owner: the less will pay the employee, it is more profitable to the owner, the cheaper it costs variable capital for each particular employee. And, although money and not him, the boss, as a rule, is afraid to cause the displeasure of the business owner, asking for raising, equalizing wages between his subordinates, since already to him, in turn, may arise the question of inability to keep her herd in the stall . Yes, the boss is not necessary.

Do not forget that there is an old good principle of "divide and conquer": there is a competition between employees who perform the same work, the competition is being implemented by a tangible difference in the salary, the material basis is eliminated for the possible association against the authorities (the union of office workers is in general It is terribly divided and tear each other). The one who gets more will almost always sabotage attempts to combine, as it is trite afraid of losing what has. In addition to the difference in remuneration, there is a whole system of stool privileges, encouraging which, on the contrary, should seem to other employees undeserved (the ability to be late, to ask for personal matters, etc.). One former colleague was told how his father, being a captain on the ship, specially allocated some one person from the team, gave him various crossings, boned - and all so that the team hated not captain, but the sailor himself. Moreover, the privileges of the latter must be exactly unkindered, and it should immediately rush into the eyes.

Since in my example, working force was acquired by the capitalist in the cost of the labor market of 2014, then Mr. Employer does not see sense to revise the terms of the contract concluded. Logical question: why does he need it? Yes, the worker himself seems unfair that he, working in the organization for many years and fulfilling a similar job, gets less than a newcomer, who else needs to be deliberate. But after all, what does it seem to him? The fact is that the new employee sold its workforced at the cost of 2018 for the specified category of specialists, and it, oddly enough, has grown since 2014 (although not in the proportion in which the cost of life products has increased) . From the point of view of the employer (and his representative - the boss), the conditions for hiring one employee in no way relate to the other, that is why in all companies where I worked, the most stringent secret was always the size of wages.. Some may say that, seeing such injustice, the old worker will begin to look for a new job and, in the end, will quit; The company will have to look for a new, not yet proven person and, again, pay him more. But here there are two points: the first - to look for a new job. The specified worker can for months, if not years (since it wants to go to better conditions), and all this time he will fulfill its job duties at the old price; The second is the element of the long-term strategy on the part of the business owner: it does not in any way have to be fed under the holders, since the rest will see and begin, already in turn, to download law. And this is unacceptable, for the sake of this you can go even for temporary losses.

In a number of discussions, I have repeatedly encountered a question, does the surplus value produced by the work of a lawyer? In fact, this is a very interesting question, and I will disassemble it separately and in detail, but I will write it yet as a hypothesis: Yes, it exists, since the surplus value exists everywhere where there are hired work, where the employee sells not a product of his work , and your workforce. The fact is that the growing needs of capital, on the one hand, the complication of its structure, and on the other - its coverage of all those areas of production, where there was also a place for individual, small-bourgeois activity, decreased. Those professions that a hundred years ago were considered a niche for qualified, "self-employed" specialists working for themselves, for example, a doctor or a lawyer, have long been incorporated into the chain of hired labor. In this regard, the profession of a lawyer has long been, rather, as a rule, than an exception, the profession of a hired employee, whose wages of all the provisions of political economy about the purchase and sale of labor are applied.