Legal nature of the Industry Agreement
Legal nature of the agreement
From 01/01/2021, a new version of the Industry Agreement in the field of insolvency (bankruptcy) and financial recovery for 2020-2022 is in force. The new edition was published on the website of the Russian Anti-Crisis Union Publication of the Russian Anti-Crisis Union
The industry agreement states the fact that insolvency practitioners, employers in the field of law and self-regulatory organizations of insolvency practitioners have reached certain agreements within the framework of social partnership agreements and in accordance with Article 45 Labor Code of the Russian Federation (hereinafter referred to as TK RF) is a legal act. That is, the mere fact of reaching agreement between the trade union and the employers' union is not an unconditional basis for classifying the Industry Agreement as a regulatory legal act.
In order for the Industry Agreement to be applied by arbitration courts when considering a case, it must be a regulatory legal act adopted in accordance with part 1 of article 13 Arbitration Procedural Code of the Russian Federation (hereinafter referred to as agro-industrial complex RF). Then the application of the Industry Agreement by arbitration courts will correspond to article 6 And paragraph 1 of article 168 Agroindustrial complex of the Russian Federation.
As established by the Plenum of the Supreme Court of the Russian Federation in paragraph 2 of Resolution No. 50 dated December 25, 2018 “On the practice of courts considering cases challenging normative legal acts and acts containing clarifications of legislation and having normative properties,” the features that characterize a normative legal act are: its publication in the prescribed manner by an authorized government body, a local government body, another body, an authorized organization or official, the presence in it of legal norms (rules of behavior), mandatory for an indefinite number of persons, designed for repeated application, aimed at regulating public relations or changing or terminating existing legal relations.
At the same time, the recognition of a particular act as normative legal in any case depends on the analysis of its content, which is carried out by the relevant court.
Thus, it should be taken into account that an act may be binding for an indefinite number of persons, in particular in cases where it is issued in order to establish the legal regime of a specific object of public law.
The basis for concluding the Industry Agreement is Article 75.1 Constitution of the Russian Federation, paragraph 1 of article 20 Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law), points 1 And 2 articles 2 And paragraph 1 of article 15 Federal Law of January 12, 1996 No. 10-FZ “On trade unions, their rights and guarantees of activity” (hereinafter referred to as the Law on Trade Unions) and article 45 Labor Code of the Russian Federation, therefore the conclusion of the Industry Agreement complies Part 1 Article 13 Agroindustrial complex of the Russian Federation.
From the analysis of the text of the Industry Agreement, it follows that it was issued by authorized all-Russian organizations (trade union and association of employers) at the federal level of social partnership and regulates the legal regime of the activities of insolvency practitioners.
Thus, paragraph 5 of Article 2 of the Industry Agreement establishes the following: “In accordance with paragraph 2 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 25, 2018 “On the practice of courts considering cases challenging regulatory legal acts and acts containing clarifications of legislation and having regulatory properties,” the recognition of a particular act as regulatory legal in any case depends on the analysis of its content, which is carried out by the relevant court.
Arbitration courts recognize the Agreement as a normative legal act and apply it in accordance with Article 6 of the Arbitration Procedural Code of the Russian Federation, since the Agreement was issued by authorized organizations at the federal level of social partnership, its content is mandatory for an indefinite number of persons, is designed for repeated application, and regulates the legal regime of the activities of insolvency practitioners."
Such circumstances have already been established by arbitration courts when considering issues of increasing the size of the fixed part of the remuneration of insolvency practitioners.
For example, the decision of the Fifth Arbitration Court of Appeal dated January 25, 2021 in case No. A51-8958/2020 established the following: “Rejecting the appellant’s argument regarding the erroneous application of the provisions of the Industry Agreement, the panel notes that the said agreement is applied by arbitration courts in accordance with Article 6, part 1 of article 13 And part 1 of article 168 The Arbitration Procedure Code of the Russian Federation, as well as by virtue of paragraph 2 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 28, 2018 No. 50 “On the practice of courts considering cases challenging normative legal acts and acts containing clarifications of legislation and having normative properties.”
Signs of a normative agreement
In view of the above, the court of first instance justifiably applied the Industry Agreement when increasing the fixed amount of remuneration to the insolvency practitioner.”
The validity of the application of the Industry Agreement when considering the issue of increasing the size of the fixed amount of remuneration has been repeatedly verified by arbitration courts of appeal:
Decision of the Fifth Arbitration Court of Appeal dated January 25, 2021 in case No. A51-8958/2020.
Decision of the Ninth Arbitration Court of Appeal dated October 19, 2020 in case No. A40-227434/2017.
Decision of the First Arbitration Court of Appeal dated September 10, 2020 in case No. A79-1152/2018.
Decision of the Fifteenth Arbitration Court of Appeal dated December 3, 2020 in case No. A53-9619/2020.
Decision of the Tenth Arbitration Court of Appeal dated February 5, 2021 in case No. A41-77103/2019.
Decision of the Sixteenth Arbitration Court of Appeal dated February 10, 2021 in case No. A22-1483/2017.
Decision of the Eleventh Arbitration Court of Appeal dated February 4, 2021 (operative part) in case No. A65-1795/2019.
The courts also assessed the act of the Russian Anti-Crisis Union, which established the complexity coefficient of the legislation used when calculating the increase in the size of the fixed amount of remuneration, and such an act was recognized as normative legal.
So, resolution Arbitration Court of the North-Western District dated December 26, 2020 in case No. A56-137241/2019 upheld resolution The Thirteenth Arbitration Court of Appeal dated 10/26/2020 in case No. A56-137241/2019, by which the court established the following: “As follows from the case materials, the applicant challenges the industry-specific regulatory act of the Russian Anti-Crisis Union dated 12/22/2019 No. 7 “On coefficients characterizing the complication of legislation regulating the activities of an insolvency practitioner and the increase in the financial burden for maintaining the status of an insolvency practitioner compared to December 31, 2008."
From the text of the appealed industry normative act, it follows that from January 1, 2020, it is necessary to apply the following coefficients, characterizing the complexity of the legislation regulating the activities of the insolvency practitioner, and the increase in the financial burden to maintain the status of the insolvency practitioner compared to December 31, 2008: for the position of temporary manager - 1.25; for the position of administrative manager - 1.25; for the position of external manager - 1.25; for the position of bankruptcy manager - 1.25; for the position of financial manager - 1.00.
The content of the contested industry normative act is mandatory for an indefinite number of persons and is designed for repeated use despite the fact that it regulates the legal regime of the activities of insolvency practitioners.”
The Russian Anti-Crisis Union is a social partner and the second party to the Industry Agreement. Industry normative act of the Russian Anti-Crisis Union dated December 22, 2019 No. 7 is applied when increasing the size of the fixed remuneration amount in accordance with paragraph 1 of Article 3 of the Industry Agreement.
As the Arbitration Court of the North-Western District indicated in the above-mentioned resolution, the industry normative act of the Russian Anti-Crisis Union dated December 22, 2019 No. 7 regulates the legal regime of the activities of insolvency practitioners, regardless of membership in an all-Russian trade union or any self-regulatory organization.
Such conclusions also correspond to the provisions of paragraph 6 of Article 2 of the Industry Agreement:
«6.
In accordance with clause 3.3 resolutions of the Constitutional Court of the Russian Federation dated December 19, 2005 No. 12-P, the insolvency practitioner is confirmed in office by the arbitration court; insolvency practitioners, like notaries, carry out public activities, therefore the state has the right to establish for them mandatory conditions for appointment and tenure.
This excludes the emergence of labor relations with a specific debtor, as indicated by the Presidium of the Supreme Arbitration Court of the Russian Federation in resolution dated February 12, 2013 No. 7140/12 in case No. A79-7832/2008.
Judicial assessment and regulation
Since the approval of an insolvency practitioner in office falls within the exclusive competence of the arbitration court, and the conditions for their tenure are determined by the state, then, in accordance with paragraph eight Article 48 Labor Code The Agreement is valid for all insolvency practitioners confirmed in office by the arbitration court.
Powers of professional associations
Another interpretation Article 48 of the Labor Code will violate the provisions Article 75.1 The Constitution of the Russian Federation provides for the right to social partnership and the principle of equal rights of all trade unions, as well as the right of insolvency practitioners to protect their social and labor rights and interests.
As explained by the Constitutional Court of the Russian Federation in paragraph 2 of the resolution dated October 24, 2013 No. 22-P, Constitution of the Russian Federation protects not only the freedom to create trade unions, but also the freedom of their activities, so that citizens, united, have the opportunity to effectively defend their social and labor rights and interests.”
Thus, it follows directly from the analysis of the content of the Industry Agreement that, on the one hand, it is essentially a normative legal act (regulatory agreement) and is subject to application by arbitration courts, on the other hand, it is valid for all insolvency practitioners approved by the arbitration court, issued by authorized organizations at the federal level of social partnership, in its content is mandatory for an indefinite number of persons, is designed for repeated use, and regulates the legal regime of the activities of insolvency practitioners.
Clause 1 of Article 1 of the Industry Agreement establishes that the Industry Agreement ... is a legal act regulating social and labor relations and establishing general principles for regulating related economic relations when insolvency practitioners carry out professional activities.
Therefore, from an analysis of the content of the Industry Agreement, it reasonably follows that it is a regulatory legal act.
Relationship between the subject matter of the Bankruptcy Law and the Industry Agreement
Subject of regulation Law bankruptcy established paragraph 1 of article 1 Bankruptcy Law:
"According to Civil Code of the Russian Federation, this Federal Law establishes the grounds for declaring a debtor insolvent (bankrupt), regulates the procedure and conditions for implementing measures to prevent insolvency (bankruptcy), the procedure and conditions for carrying out procedures applied in a bankruptcy case, and other relations arising from the inability of the debtor to fully satisfy the claims of creditors.”
At the same time, in accordance part 2 of article 25 And part 3 of article 65 The Civil Code establishes the following regulatory limits:
"2. The grounds, procedure and consequences of declaring a citizen insolvent (bankrupt) by an arbitration court, the order of satisfaction of creditors’ claims, the procedure for applying procedures in the case of insolvency (bankruptcy) of a citizen are established by the law regulating issues of insolvency (bankruptcy).”
"3. The grounds for declaring a legal entity insolvent (bankrupt) by a court, the procedure for liquidating such a legal entity, as well as the priority for satisfying creditors' claims are established by law about insolvency (bankruptcy).”
The subject of regulation of the Industry Agreement is established by paragraph 1 of Article 1 of the Industry Agreement:
“The industry agreement in the field of insolvency (bankruptcy) and financial recovery ... is a legal act regulating social and labor relations and establishing general principles for regulating related economic relations when insolvency practitioners carry out professional activities.”
Approach of arbitration courts
Thus, the subjects of regulation Law bankruptcy and the Industry Agreement are different: Law on bankruptcy does not regulate relations related to the protection of social and labor rights and interests of insolvency practitioners.
IN paragraph 5 of article 20.6 The Bankruptcy Law directly establishes that an increase in the fixed amount of remuneration does not depend on the result of work, that is, in accordance with Article 128 The Civil Code is not the subject of civil rights.
That's why by law bankruptcy law does not establish increasing coefficients to increase the size of the fixed amount of remuneration, since this is not regulated by civil law, but is associated with the protection of social and labor rights and interests of insolvency practitioners (part 3 of article 37 And part 1 of article 46 Constitution of the Russian Federation).
Clause 5 of Article 20.6 The Bankruptcy Law establishes only a special procedure for increasing the amount of a fixed amount of remuneration, which is used to stimulate its activities by a meeting of creditors or other persons participating in the bankruptcy case.
Such conclusions were made, for example, by the Fifth Arbitration Court of Appeal in resolution dated January 25, 2021 in case No. A51-8958/2020:
Implications for the professional community
“The insolvency practitioner justifiably sought judicial protection of his right to remuneration for work without any discrimination and not lower than the minimum wage established by federal law (part 3 of article 37 Constitution of the Russian Federation).
And also, for example, the Ninth Arbitration Court of Appeal in resolution dated 10.19.2020 in case No. A40-227434/2017:
"According to paragraph 5 of article 20.6 According to the Bankruptcy Law, the increase in the fixed amount of remuneration depends on the volume and complexity of the work performed by the insolvency practitioner.
Regulations Law on bankruptcy, increasing coefficients have not been established that the arbitration court should be guided by when increasing the size of the fixed amount of remuneration of the insolvency practitioner when he himself applies for a petition, therefore the corresponding coefficients are established by the Industry Agreement in the field of insolvency (bankruptcy) and financial recovery: The first coefficient is related to the fact that since the payment of remuneration is aimed at providing the insolvency practitioner with the opportunity to satisfy his needs in exchange for work, the constancy of the remuneration means the constancy of his purchasing power, therefore the coefficient is associated with changes in the consumer price index.
The second coefficient is associated with the status of the insolvency practitioner as an official vested with public legal powers, therefore the complexity of the work he performs is determined by the complexity of bankruptcy legislation.
The third coefficient is related to the amount of work performed by the insolvency practitioner (amount of labor) and is determined by the characteristics of a particular bankruptcy case.”
The legal force of a normative legal act is the ability of the act to give rise to certain legal consequences. The legal force of an act indicates the place of the act in the system of legal acts and depends on the position and competence of the body that issued the act.
As follows from the preamble of the General Agreement between all-Russian associations of trade unions, all-Russian associations of employers and the Government of the Russian Federation (hereinafter referred to as the General Agreement), the Agreement is an integral part of the collective bargaining process in the social partnership system and serves as the basis for the development and conclusion of industry agreements at the federal level and regional agreements.
Industry implications
Equality of the parties and mandatory implementation of collective agreements and agreements in accordance with Article 24 of the Labor Code are the basic principles of social partnership and must be ensured by the Government of the Russian Federation in accordance with paragraph “e.4” Part 1 of Article 114 Constitution of the Russian Federation.
An obligatory party to a collective agreement or agreement at the federal level of social partnership is the all-Russian trade union.
As explained by the Constitutional Court of the Russian Federation in paragraph 2 of the resolution dated October 24, 2013 No. 22-P, a trade union is an institution of civil society; Constitution of the Russian Federation protects not only the freedom to create trade unions, but also the freedom of their activities, so that citizens, having united, have the opportunity to effectively defend their social and labor rights and interests.
The right of citizens to organize into trade unions and social partnership is guaranteed Constitution of the Russian Federation(Articles 30 and 75.1 respectively).
Relations between the All-Russian Trade Union of Insolvency Practitioners and Russian public authorities
Regarding the provisions of ORPAU regarding public authorities, the Arbitration Court of the East Siberian District in resolution dated 03/05/2020 in case No. A33-10989/2019 the following assessment was given:
"According to paragraph 1 of article 2 Federal Law of January 12, 1996 No. 10-FZ “On trade unions, their rights and guarantees of activity” (hereinafter referred to as the Law on Trade Unions) ORPAU was created by insolvency practitioners for the purpose of representing and protecting their social and labor rights and interests. Clause 1 of Article 15 of the Law on Trade Unions stipulates that the relations of ORPAU with government bodies are built on the basis of social partnership, that is, by virtue of Article 24 Labor Code of the Russian Federation are equal in rights and imply taking into account and respecting the interests of the parties.
In accordance with paragraph 2 of Article 5 of the Law on Trade Unions, interference by state authorities in the activities of the ORPAU is prohibited, which may entail restriction of the rights of the ORPAU or impede the legitimate implementation of its statutory activities.
Thus, the appellate court correctly pointed out that it is precisely from this special nature of relations between the ORPAU, as an all-Russian trade union, and state authorities that the ORPAU has the right to apply to the arbitration court on issues related to the representation and protection of the social and labor rights and interests of insolvency practitioners, both on its own behalf and on behalf of the insolvency practitioners.”
An assessment of the legal force of the Industry Agreement was also given, for example, by the Tenth Arbitration Court of Appeal in the decision dated 09.09.2020 in case No. A41-86346/19 (upheld by the district court) and the Fifteenth Arbitration Court of Appeal in resolution dated 02/21/2020 in case No. A53-8303/2019 (upheld by the district court and the Supreme Court of the Russian Federation):
"According to Article 45 of the Labor Code of the Russian Federation, an industry agreement is a legal act regulating the social and labor relations of insolvency practitioners, therefore it is subject to application in regulating the activities of insolvency practitioners on a par with legal regulation.”
It should also be noted that the decision of the Supreme Court of the Russian Federation dated June 19, 2020 No. 302-ES20-8871 in case No. A33-10989/2019 established that the Law on Trade Unions is subject to application when approving an insolvency practitioner on a par with by law about bankruptcy.
Previously, the Supreme Court, in its ruling dated January 28, 2019 No. 301-ES18-13818 in case No. A28-3350/2017, established that ORPAU has the right to appeal to the arbitration court without being a party to the case, and the Supreme Court took into account such an appeal when issuing a judicial act. This definition is included in paragraph 14 of the review of judicial practice of the Supreme Court No. 2 (2019), approved by the Presidium of the Supreme Court on July 17, 2019.
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