What you need to know about the labor rights of each employee. Part 2
In the first article, “ What you need to know about the labor rights of each employee, ” we told and gave several recommendations on how to protect yourself when applying for and leaving work. In addition, they launched a small study *, to which many habrayuzer responded. The second part is devoted to issues one way or another connected with wages.
We all work, including in order to rejoice in the transfer of wages to bank cards. And we are very upset when alerts are delayed or inform us about the arrival of not the amounts we expected. Wages are perhaps the most important part of an employment relationship for an employee and, even if we are willing to tolerate violations during work or in working conditions, we usually do not want to put up with violations in wage payments.
The employee and the employer independently agree on the wage amount. All conditions of remuneration are fixed either in a collective agreement, or in an employment contract with a specific employee, or in local regulations of the employer. The first thing every employee should pay attention to is that he has a document confirming the right to pay for a certain amount.
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It is recommended to regularly receive payroll sheets, which will reflect information about wages, accrued and actually paid insurance contributions for mandatory pension insurance, the period of work with this employer, etc. These sheets will confirm that you are officially and all payments are through accounting.
There is a common legalized way of infringing the rights of an employee - the division of wages into salary and premium parts. Since bonus systems are established by collective agreements, agreements, local regulations ( art. 135 of the Labor Code of the Russian Federation ) and in most companies there are no collective agreements, the payment of the bonus part is regulated exclusively by the employer.
The employer himself determines when, to whom and in what amount he will pay the premium. As a rule, in such a scheme, the bonus constitutes a significant part of the salary, which puts the employee in a dependent position, since in the case of non-payment of the bonus part, he will most likely not be able to challenge the actions of the employer. Therefore, if you agree to such wage conditions, then try to clarify:
This will not guarantee that you will not be deceived with the premium part. But it will bring at least some clarity. The only effective way to protect yourself in this situation is to seek from the employer the transfer of the premium part to the salary. Otherwise, the risk of non-payment or reduction of the premium will remain. This problem could be solved if it were possible to legally fix the proportions between the salary and the premium in order to prevent abuse by the employer in this matter. The trade unions regularly make this demand, but for now the question remains open.
About the "black" wages can hardly say a lot. Everyone understands that labor relations without obligations are based solely on honest words and decency of the parties. The main negative consequence of receiving “black” wages is that the position of the employee completely depends on the goodwill of the employer, and the employee is deprived of the opportunity to assert his rights using the established state remedies, since it will be extremely difficult to confirm the amount of the wages set for you. In this position, the employee in any conflict with the employer risks:
Since the reality is that today it is not always possible to protect yourself from the "black" wage, then in case you get a "black" wage, you must try to get proof of what wage you are getting. As evidence, audio or video recordings, payroll records, telephone conversations, employment contracts of employees with former employers, advertisements, statistics, as well as information that other workers can give on their salaries can be used. This evidence can be useful in court if the employer decides not to pay you a salary.
Usually, the employer changes the conditions of remuneration for the worse unilaterally: either in an ultimatum (either way, or quit), or referring to some difficulties that do not allow to preserve the previous conditions. Many workers are sure that this is how it should be: unfair, of course, but if the employer so decided ... This is a misconception into which we are introduced either by American films , or by the employers themselves, in the hope that you are not familiar with your rights. In fact, the employer’s ability to single-handedly change the wage conditions of his employee is extremely limited. Let's try to figure it out.
On the one hand, all conditions of remuneration are mandatory for inclusion in an employment contract ( Article 57 of the Labor Code of the Russian Federation ) and the terms of an employment contract determined by the parties can be changed only by agreement of the parties to the employment contract ( Article 72 of the Labor Code of the Russian Federation ). Therefore, the employer cannot single-handedly decide that you will receive less this month. He can only suggest that you agree to start receiving less this month (or from this month). And, of course, you have the right to refuse such a tempting offer legally.
On the other hand, the employer has the right to change the terms of remuneration for reasons related to changes in organizational or technological working conditions, if the terms of the employment contract determined by the parties cannot be maintained, they can be changed at the initiative of the employer ( Article 74 of the Labor Code ). In this case, the employer must:
But for changes in the conditions of remuneration, the employer must have objective reasons - a change in the organizational or technological working conditions without the possibility of preserving the existing conditions. So, the fact of the merger of several departments in itself does not give the employer the right to reduce the salaries of their employees, since in this situation nothing says that it is impossible to keep the previous salaries. Also, it is not a reason for a unilateral change in the conditions of an employment contract determined by the parties by the shareholders or founders of a legal entity or a “financial crisis”.
If you have received a notice of a change in the terms of the labor contract and in particular the terms of remuneration and do not agree with them, then you should not write “agree” on the notice so that this cannot be subsequently regarded as a change in the terms of remuneration by agreement of the parties. Meanwhile, it is impossible to refuse these changes, because it can be regarded as a refusal to continue work, which is the basis for termination of the employment relationship. In this case, it is recommended to write something similar on the change notification:
Then proceed to appeal the actions of the employer.
If the salary is not paid on time, you can demand from the employer the payment of compensation:
As shown in the article " TP for beginners ", the interest is an extremely small amount.
You can pause until the repayment of debt:
In this case, it is necessary to notify the employer in such a way that it will be possible to record the fact of receiving the application: either by the employer's signature, or in front of witnesses, or by registered letter with notification. In any case, it will be possible to suspend work no sooner than from the moment of receipt of the application by the employer.
According to the survey , 50% of habrayuzer wages were not indexed even once, and almost 20% are indexed less than once a year.
Prices for all goods and services are constantly growing. In order for the welfare of workers to at least not deteriorate, Article 134 of the Labor Code of the Russian Federation says that the employer must raise (index) wages due to rising prices.
Moreover, the Federal Service for Labor and Employment (Rostrud) in a letter dated 04.19.2010 No. 1073-6-1 concluded that the law establishes an absolute obligation for an employer who is not even financed from the state or municipal budget to carry out indexation.
Often, employers do not comply with this norm, and employees simply do not know about it, so inflation is ahead of wage growth. If indexation is not performed, employees are entitled to request that the clause on wage increase by the amount of inflation be included in the local wage regulation. It happens that there is no such act in the company. Then you need to demand that the employer develops it and includes an indexation clause there. Lack of salary growth is a violation of the law. To eliminate it, you need to contact the prosecutor's office or the State Labor Inspectorate.
As practice shows, it is more efficient to achieve indexation not by each employee individually, but together, by the majority of employees. In addition, Rosstat underestimates the level of inflation, so it makes sense to demand indexation of wages by the amount of inflation plus an additional percentage. Ideally, it would be the conclusion of a collective agreement with the employer, which would spell out the mandatory annual indexation of wages. A collective agreement in its turn can be concluded only by a trade union in which more than half of the employees are members.
We have nothing to add to the recommendations that we gave in the first article:
1. In any incomprehensible [labor] situation, read the Labor Code.
Your rights need to know and understand when they are violated. As they say, who is warned, he is armed.
2. Request, collect, store documents regulating labor activity.
In this sense, the employer is in a better position: all the necessary documentation is stored from him initially, and legally protected from any unlawful attacks by the employee :) Therefore, the workers themselves are vulnerable, who are in a vulnerable position due to lack of information and the inability to back up position links to documents.
3. Make demands and defend your rights more effectively collectively.
As a rule, the employees of one company have similar working conditions. Therefore, it is logical that the labor problems of one employee may also confront his colleagues. The requirements put forward by the team always make a greater impression on the employer than the same requirements put forward by one employee.
Ps It is important for us to know how useful / useless such articles are, is it necessary to continue and, if necessary, which topics of labor law would be of interest to the community?
* We want to try to do a little research in order to understand what kind of violations IT-specialists most often experience. We plan to interview those who are in one way or another involved in IT and whose labor rights have been violated. Therefore, we, the trade union of workers in the IT sphere , appeal to the Habrasoobshchestvo: if you were not paid salary, if you were illegally fired, if you received a “black” salary - in general, if your rights were violated in one way or another, share with us by this! It would be great if you agreed to meet in person and talk - give a short interview. Thank you in advance!
We all work, including in order to rejoice in the transfer of wages to bank cards. And we are very upset when alerts are delayed or inform us about the arrival of not the amounts we expected. Wages are perhaps the most important part of an employment relationship for an employee and, even if we are willing to tolerate violations during work or in working conditions, we usually do not want to put up with violations in wage payments.
Salary (wages of an employee) - remuneration for work depending on the qualifications of the employee, complexity, quantity, quality and conditions of work performed ( Article 129 of the Labor Code of the Russian Federation ).
The employee and the employer independently agree on the wage amount. All conditions of remuneration are fixed either in a collective agreement, or in an employment contract with a specific employee, or in local regulations of the employer. The first thing every employee should pay attention to is that he has a document confirming the right to pay for a certain amount.
')
Calculation sheet
According to the written application of the employee, the employer must, no later than three working days from the date of filing this application, issue to the employee copies of documents related to the work. Copies of documents related to the work must be properly certified and provided to the employee free of charge. ( Article 62 of the Labor Code of the Russian Federation ).
It is recommended to regularly receive payroll sheets, which will reflect information about wages, accrued and actually paid insurance contributions for mandatory pension insurance, the period of work with this employer, etc. These sheets will confirm that you are officially and all payments are through accounting.
Salary and bonus
There is a common legalized way of infringing the rights of an employee - the division of wages into salary and premium parts. Since bonus systems are established by collective agreements, agreements, local regulations ( art. 135 of the Labor Code of the Russian Federation ) and in most companies there are no collective agreements, the payment of the bonus part is regulated exclusively by the employer.
The employer himself determines when, to whom and in what amount he will pay the premium. As a rule, in such a scheme, the bonus constitutes a significant part of the salary, which puts the employee in a dependent position, since in the case of non-payment of the bonus part, he will most likely not be able to challenge the actions of the employer. Therefore, if you agree to such wage conditions, then try to clarify:
- conditions and bonus rates, i.e. in what cases and for what the premium is paid;
- Does the employer have the right, when you reach the established level of bonuses, not to pay you a bonus and, if so, in limited situations or unconditionally;
- Does the organization have a bonus policy and can you get a certified copy of it?
- Whether conditions and rates of bonuses are reflected in your employment contract.
This will not guarantee that you will not be deceived with the premium part. But it will bring at least some clarity. The only effective way to protect yourself in this situation is to seek from the employer the transfer of the premium part to the salary. Otherwise, the risk of non-payment or reduction of the premium will remain. This problem could be solved if it were possible to legally fix the proportions between the salary and the premium in order to prevent abuse by the employer in this matter. The trade unions regularly make this demand, but for now the question remains open.
"Black" wages
About the "black" wages can hardly say a lot. Everyone understands that labor relations without obligations are based solely on honest words and decency of the parties. The main negative consequence of receiving “black” wages is that the position of the employee completely depends on the goodwill of the employer, and the employee is deprived of the opportunity to assert his rights using the established state remedies, since it will be extremely difficult to confirm the amount of the wages set for you. In this position, the employee in any conflict with the employer risks:
- not receive wages in the event of any conflict with the boss;
- do not get vacation pay;
- completely lose the social guarantees associated with the reduction, learning, childbirth and other situations.
Since the reality is that today it is not always possible to protect yourself from the "black" wage, then in case you get a "black" wage, you must try to get proof of what wage you are getting. As evidence, audio or video recordings, payroll records, telephone conversations, employment contracts of employees with former employers, advertisements, statistics, as well as information that other workers can give on their salaries can be used. This evidence can be useful in court if the employer decides not to pay you a salary.
Changing pay conditions
Usually, the employer changes the conditions of remuneration for the worse unilaterally: either in an ultimatum (either way, or quit), or referring to some difficulties that do not allow to preserve the previous conditions. Many workers are sure that this is how it should be: unfair, of course, but if the employer so decided ... This is a misconception into which we are introduced either by American films , or by the employers themselves, in the hope that you are not familiar with your rights. In fact, the employer’s ability to single-handedly change the wage conditions of his employee is extremely limited. Let's try to figure it out.
On the one hand, all conditions of remuneration are mandatory for inclusion in an employment contract ( Article 57 of the Labor Code of the Russian Federation ) and the terms of an employment contract determined by the parties can be changed only by agreement of the parties to the employment contract ( Article 72 of the Labor Code of the Russian Federation ). Therefore, the employer cannot single-handedly decide that you will receive less this month. He can only suggest that you agree to start receiving less this month (or from this month). And, of course, you have the right to refuse such a tempting offer legally.
On the other hand, the employer has the right to change the terms of remuneration for reasons related to changes in organizational or technological working conditions, if the terms of the employment contract determined by the parties cannot be maintained, they can be changed at the initiative of the employer ( Article 74 of the Labor Code ). In this case, the employer must:
- notify the employee of upcoming changes in the conditions of remuneration, as well as the reasons that necessitated such changes, in writing no later than two months. At the same time, find out if the employee agrees to work under the new conditions.
- if the employee does not agree to continue working, the employer must, in writing, offer him another job that the employer has.
- if the employer cannot offer another job, or the employee does not agree to it, then the employer may terminate the employment contract by paying the severance pay to the employee.
But for changes in the conditions of remuneration, the employer must have objective reasons - a change in the organizational or technological working conditions without the possibility of preserving the existing conditions. So, the fact of the merger of several departments in itself does not give the employer the right to reduce the salaries of their employees, since in this situation nothing says that it is impossible to keep the previous salaries. Also, it is not a reason for a unilateral change in the conditions of an employment contract determined by the parties by the shareholders or founders of a legal entity or a “financial crisis”.
If you have received a notice of a change in the terms of the labor contract and in particular the terms of remuneration and do not agree with them, then you should not write “agree” on the notice so that this cannot be subsequently regarded as a change in the terms of remuneration by agreement of the parties. Meanwhile, it is impossible to refuse these changes, because it can be regarded as a refusal to continue work, which is the basis for termination of the employment relationship. In this case, it is recommended to write something similar on the change notification:
“I do not agree with the change of the terms of the employment contract determined by the parties. I do not refuse to continue the work. I will appeal the actions of the employer "
Then proceed to appeal the actions of the employer.
If wages are not paid
If the salary is not paid on time, you can demand from the employer the payment of compensation:
If the employer violates the established period, respectively, the payment of wages, vacation pay, payments for dismissal and (or) other payments owed to the employee, the employer is obliged to pay them with interest payments ( Article 236 of the Labor Code of the Russian Federation ).
As shown in the article " TP for beginners ", the interest is an extremely small amount.
You can pause until the repayment of debt:
In case of delay in the payment of wages for a period of more than 15 days, the employee has the right, having notified the employer in writing, to suspend work for the entire period until payment of the delayed amount ( Article 142 of the Labor Code of the Russian Federation ).
In this case, it is necessary to notify the employer in such a way that it will be possible to record the fact of receiving the application: either by the employer's signature, or in front of witnesses, or by registered letter with notification. In any case, it will be possible to suspend work no sooner than from the moment of receipt of the application by the employer.
Salary indexation
According to the survey , 50% of habrayuzer wages were not indexed even once, and almost 20% are indexed less than once a year.
Glad as a child the recent increase in his zp I counted, but it turned out to be quite possible that this is even a lowering of the salary. Comment on the topic " Do you index wages? "
Prices for all goods and services are constantly growing. In order for the welfare of workers to at least not deteriorate, Article 134 of the Labor Code of the Russian Federation says that the employer must raise (index) wages due to rising prices.
Moreover, the Federal Service for Labor and Employment (Rostrud) in a letter dated 04.19.2010 No. 1073-6-1 concluded that the law establishes an absolute obligation for an employer who is not even financed from the state or municipal budget to carry out indexation.
Often, employers do not comply with this norm, and employees simply do not know about it, so inflation is ahead of wage growth. If indexation is not performed, employees are entitled to request that the clause on wage increase by the amount of inflation be included in the local wage regulation. It happens that there is no such act in the company. Then you need to demand that the employer develops it and includes an indexation clause there. Lack of salary growth is a violation of the law. To eliminate it, you need to contact the prosecutor's office or the State Labor Inspectorate.
As practice shows, it is more efficient to achieve indexation not by each employee individually, but together, by the majority of employees. In addition, Rosstat underestimates the level of inflation, so it makes sense to demand indexation of wages by the amount of inflation plus an additional percentage. Ideally, it would be the conclusion of a collective agreement with the employer, which would spell out the mandatory annual indexation of wages. A collective agreement in its turn can be concluded only by a trade union in which more than half of the employees are members.
Instead of output
We have nothing to add to the recommendations that we gave in the first article:
1. In any incomprehensible [labor] situation, read the Labor Code.
Your rights need to know and understand when they are violated. As they say, who is warned, he is armed.
2. Request, collect, store documents regulating labor activity.
In this sense, the employer is in a better position: all the necessary documentation is stored from him initially, and legally protected from any unlawful attacks by the employee :) Therefore, the workers themselves are vulnerable, who are in a vulnerable position due to lack of information and the inability to back up position links to documents.
3. Make demands and defend your rights more effectively collectively.
As a rule, the employees of one company have similar working conditions. Therefore, it is logical that the labor problems of one employee may also confront his colleagues. The requirements put forward by the team always make a greater impression on the employer than the same requirements put forward by one employee.
Ps It is important for us to know how useful / useless such articles are, is it necessary to continue and, if necessary, which topics of labor law would be of interest to the community?
* We want to try to do a little research in order to understand what kind of violations IT-specialists most often experience. We plan to interview those who are in one way or another involved in IT and whose labor rights have been violated. Therefore, we, the trade union of workers in the IT sphere , appeal to the Habrasoobshchestvo: if you were not paid salary, if you were illegally fired, if you received a “black” salary - in general, if your rights were violated in one way or another, share with us by this! It would be great if you agreed to meet in person and talk - give a short interview. Thank you in advance!
Source: https://habr.com/ru/post/284854/
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